Managing Unexpected Post-Elections Issues

Historically, elections are settled affairs, but sometimes unexpected and unusual situations can arise during the election process. This blog reviews several scenarios that might arise after all the votes have been counted.

Challenges Involving Candidates

What if a candidate wins, but ultimately doesn't want the job? Must they be sworn in and then resign before being replaced?

RCW 42.12.010 lists all the situations that cause an elective office to become vacant. One of those is their “refusal or neglect to take his or her oath of office.” If a person who has been elected provides notice that they refuse to take the oath of office, then this should cause a vacancy to occur on January 1.  For more information on filling vacancies, see Vacancies in Local Elected Offices.

What if voters write in the name of a real or imaginary person and that person receives the most votes?

For write-in votes to be counted, the person whose name is written in must have declared their candidacy and paid the required filing fees by no later than 8:00 P.M. on the day of the primary or the election (see RCW 29A.24.311). They would also need to be qualified for the position. Assuming the person has not declared and paid a filing fee, they would have no votes counted and winning the office would be impossible. The candidate with the next highest number of votes would be the winner.

An Election that Ends in a Tie

What if there is a tie in the votes? It can — and does — happen. However, state law takes care of the possibility of an election that ends in this manner.

If two or more candidates are tied when the vote counts and recounts are complete, the winner is determined “by lot” per RCW 29A.60.221. Determining a winner “by lot” means that the tied election is decided by flipping a coin, drawing straws, rolling dice, or picking a name from a hat — all possible ways to make a decision by lot. Ideally, the candidates will agree with the county auditor on the specific method used to decide “by lot.”

When the Results Are Contested

Per RCW 29A.68.013, an elector (i.e., a U.S. citizen, at least 18 years old, and resident of the jurisdiction for at least 30 days) may file an election contest with a judge, alleging that there has been an election error.

RCW 29A.68.020 defines the causes an elector may use to challenge certification of an election result, including:

• Misconduct by an election office,
• The candidate was not eligible for office,
• The candidate had been convicted of a felony,
• A bribe was given to a voter, or
• Illegal votes were cast.

The voter must file an affidavit with the appropriate court (i.e., the superior court, court of appeals, or state supreme court) within 10 days of the official vote certification (RCW 29A.68.013) 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 (see RCW 29A.68.050).

Steps to Assuming Office

Before a person who has been elected can actually assume office in a local government, they must be “qualified.” For election statutes, RCW 29A.04.133 defines the term “qualified” to mean:

• The election results have been certified;
• Any required bond has been posted; and
• The winner has taken the oath of office.

Certification of Results

When will this year’s election results be certified? According to the Washington Secretary of State’s election website, results will be certified by each county on November 26, 2024.

Posting a Bond

Who is required to post a bond? While official bonds are typically required only for certain appointive positions, such as a city clerk, treasurer, or police chief, RCW 36.16.050 requires that all county elected officials furnish bonds of varying amounts, conditioned upon the official faithfully performing the duties of the office and properly handling any money that may come into their hands.

Other officers may also be required to post a bond, if the legislative body imposes such a requirement. Some jurisdictions purchase blanket bonds to cover their officials, often through their risk pool insurance. As noted above, if a bond is required, it must be posted for the person to be qualified to assume office. 

For more information, see our page on Official Bonds and Oaths of Office.

Oath of Office

When can the oath be given? Although newly elected officials will typically begin their term of office on the first day of January following an election, under RCW 29A.60.280(3), the oath may be given up to 10 days prior to the date of assuming office or at the last regular meeting held before the person elected is to assume office. For example, some local governments choose to have the oath given to newly elected officers at the first meeting of the legislative body, presumably in January.

For more information on who can administer the oath of office and what should be in it, see our page on Official Bonds and Oaths of Office.

Filling a Vacancy

If the person elected had been appointed to fill a vacancy, they assume office immediately after becoming qualified. This typically occurs once the votes have been certified within three weeks of the election, see RCW 42.12.040 and 42.12.070(6).

Otherwise, the person elected assumes office at the beginning of the following year once they become qualified. For more information, see Vacancies in Local Elected Offices.

Post-Election Governance Issues

What happens 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 still 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 their votes are considered valid.

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?

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

Under this statute, if a newly elected person cannot take office in the code city at the beginning of a new term, their predecessor “holds over” in the position until the new officer can provide a bond and be sworn in. In this situation, if enough holding-over councilmembers attend an early January meeting to have a quorum, then council decisions can be made.