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The Election Edition of What if…?


September 13, 2018 by Paul Sullivan
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The Election Edition of What if…?

Normally, elections are settled affairs. The votes are tallied in a systematic way and the candidate who gets the most votes wins. There are many possible scenarios that probably won’t happen: In fact, it’s really doubtful, but what happens if something unexpected does occur during an election and it’s not clear what should be done next?

This article reviews some unlikely occurrences that could arise in and after elections, and what should be done in response.

An Election that Ends in a Tie

Candidates for office hope for a “landslide” in their election results. Usually though, the winner and his or her opponent will only be separated by a few votes or percentage points. What if there is a tie?

State law takes care of that possibility. If two or more candidates are tied when the vote counts and recounts are complete, the winner is determined “by lot” (RCW 29A.60.221). Typically, the winner will be determined by the flip of a coin. However, selection of the winning candidate could be made by drawing straws, rolling dice, or picking a name from a hat — all recognized ways of making a decision by lot.

Challenges Involving Candidates

What if the winner of the primary election dies prior to the general election? Will his or her votes be counted?

According to AGO 1999 No. 5, the candidate’s name remains on the ballot and the votes that are cast for him or her are counted. In the event the deceased candidate receives the most votes, a vacancy is declared for the position and the vacancy is filled according to the process applicable to that office. The runner-up candidate to the person who died is not declared the winner. 

What if, after the primary election, a candidate moves from the jurisdiction and is no longer qualified to hold the office being sought? 

Sometimes a candidate will no longer qualify for the office he or she is seeking but the person’s name remains on the ballot (and maybe the person continues to seek election). What can be done?

Any judge, other than a district or municipal court judge, is authorized to correct an election error, prevent a “wrongful act” with respect to an election, or require the performance of an election-related duty, if an affidavit is filed by an elector (see RCW 29A.68.011).

Additionally, a registered voter may contest the right of any person to be issued a certificate of election if the candidate was ineligible for the office at the time elected. The voter must file an affidavit with the court and a hearing  must be set on the matter. After receiving testimony and evidence at the hearing, the presiding judge may either dismiss the proceedings, nullify the election, or, if another person has the most legal votes, declare that person to be elected (RCW 29A.68.050).

What if a person, unqualified for office, nevertheless assumes office and votes on issues, sometimes even casting the deciding vote?

The votes taken by an “officeholder” who is later found unqualified for office are considered valid. Under the de facto officer doctrine, one who has the reputation and appearance of being an officer, but has no legal right to the office, nevertheless serves as a “de facto officer” and his or her votes are considered valid.

What if voters write in Mickey Mouse and Mickey receives the most votes?

For write-in votes to be counted, the person (or rodent) whose name is written in must have declared his or her candidacy and paid the required filing fees by no later than 8:00 p.m. on the day of the primary or the election (RCW 29A.24.311). Assuming Mickey (or a person) has not declared and paid a filing fee, he or she would have no votes counted and thus winning the office would be impossible (sorry, Mickey).

Post-Election Governance Issues

What if a jurisdiction’s newly elected officers are not sworn in until January 15 but some issues must be decided before then, and without the new officers, there is no quorum?

While a person elected to office will typically serve for a term of four years, it is possible that he or she might end up serving for a longer period. For example, code city mayors and councilmembers have 4-year terms and, according to RCW 35A.12.040, serve “until their successors are elected and qualified and assume office.”

Under such statutes, if a newly elected person cannot take office at the beginning of a new term, his or her predecessor “holds over” in the position until the new officer can provide a bond and be sworn in. Of course, if the predecessor refuses to continue to serve or is unable to do so, there could be a problem.

Questions? Comments?

If you have questions about elections or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me at psullivan@mrsc.org.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.

VIEW ALL POSTS BY Paul Sullivan

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"In 1989-91 I served as city clerk/treasurer for the City of Gold Bar and turned to MRSC and to you Paul on an ongoing basis as Gold Bar careened between chaos and calamity regularly. Your guidance was invaluable and allowed me to speak authoritatively to leaders, keeping Gold Bar from both hell ‘and’ high water, and the risk agents at the Association of Wa Cities from heartburn. A voice from the past would like to offer a belated thanks."

Susan (Houston) Hobbs on Sep 20, 2018 12:05 PM

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