Foulkes v. Hays
537 P.2d 777, 1975 Wash. LEXIS 912, 85 Wash.2d 629 (1975)
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Rule of Law:
A court possesses general equitable power, recognized by statute, to order a new election when it finds that neglect of duty by election officials compromised the integrity of the ballots to such an extent that the true outcome of the election cannot be ascertained.
Facts:
- In the November 1974 Adams County commissioner election, the initial vote tally showed Kenny Foulkes defeating the incumbent, Gordon Hays, by 37 votes.
- Hays requested a recount of the 3,025 votes cast.
- Between the initial count and the recount, ballots were stored in wax-sealed envelopes placed inside canvas bags.
- These canvas bags were secured with padlocks, but the key for each padlock was tied to the outside of its respective bag.
- The bags were kept in a vault at the county auditor's office that was accessible to several people during business hours.
- The recount, held 14 days later, declared Hays the winner by 71 votes, with the vote swing concentrated in 12 of the 30 precincts.
- A document examiner testified that in his opinion, 46 ballots from those 12 precincts contained votes for Hays that were marked by someone other than the original voter.
Procedural Posture:
- After being declared the loser in a recount, Kenny Foulkes filed a statutory election contest in Adams County Superior Court against Gordon Hays under RCW 29.65.010.
- Foulkes then filed a 'motion to correct election fraud or error' under a different statute, RCW 29.04.030, and the trial court consolidated the two actions.
- The trial court dismissed the first action, holding that altered ballots were not 'illegal votes' within the meaning of RCW 29.65.010.
- After hearing further testimony under the second motion, the trial court found election officials had been neglectful, set aside the recount results, and ordered a new election.
- Hays, the appellant, appealed the trial court's order to the Supreme Court of Washington.
- Foulkes, the respondent, filed a cross-appeal, challenging the trial court's refusal to reinstate the original vote count.
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Issue:
Does a superior court have the equitable power, under RCW 29.04.030, to set aside a recount result and order a new election based on a finding that election officials' neglect of duty made ballot tampering possible, even when a specific statutory remedy for 'illegal votes' is inapplicable?
Opinions:
Majority - Utter, J.
Yes. A superior court has the authority to order a new election under these circumstances. The court's power derives not only from the broad language of RCW 29.04.030, which allows judicial correction of election errors and neglect, but also from its inherent general equity jurisdiction. The specific election contest statute for 'illegal votes' (RCW 29.65.010) does not apply here because 'illegal votes' refer to votes cast by ineligible persons, not to valid ballots that were subsequently altered. Since that statute does not provide an exclusive remedy, the court correctly exercised its broader authority to address the 'neglect of duty' by election officials. The act of storing ballots in padlocked bags with the keys attached constituted such neglect, as it created an 'ample opportunity for fraudulent changes.' Because expert testimony established that tampering occurred but could not determine the precise number of altered ballots, the true result of the election was unascertainable, making a new election the only proper equitable remedy.
Analysis:
This decision solidifies the judiciary's role as a supervisor of election integrity, establishing that courts are not constrained by narrow statutory contest provisions when faced with broader issues of official neglect. It clarifies that a court's general equitable powers can be invoked to remedy situations, like insecure ballot storage, that undermine an election's fundamental fairness. By distinguishing between narrowly defined 'illegal votes' and other procedural failures, the ruling ensures a judicial remedy exists for a wider range of election irregularities. This precedent empowers courts to order the significant remedy of a new election when official negligence makes it impossible to certify a true and accurate result.
