Managing Unexpected 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 during and after elections.

Challenges Involving Candidates

What if the winner of the primary election withdraws or dies prior to the general election?

According to AGO 1999 No. 5, a deceased candidate’s name remains on the ballot and the votes cast for them 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 answer is the same in the event a candidate withdraws from the race — If the candidate who withdrew wins the most votes, then a vacancy occurs and must be filled accordingly. The runner-up candidate to a candidate who has died or who withdrew is not declared the winner but could be considered for the vacancy. 

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 thus winning the office would be impossible. The candidate with the next highest number of votes would be the winner.

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

To qualify for local elective office, a candidate must be a registered voter of the municipality and reside in the jurisdiction they seek to represent (see RCW 42.12.010 and RCW 29A.08.010).

Sometimes a candidate will move from the jurisdiction and no longer qualify for the office they are seeking. However, their name remains on the ballot and the person continues to seek election. What can be done? A 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).

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).

Assuming Office

A person elected becomes “qualified” to assume office when a certificate of election has been issued, any required bond has been filed, and the person has taken an oath of office (RCW 29A.04.133).

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 (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.

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.

Post-Election Governance

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 such statutes, if a newly elected person cannot take office 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. So, if enough holding over councilmembers attend an early January meeting to have a quorum, then council decisions could be made.

More Resources

Want to read more about local election-related issues? We have a number of blogs providing a deeper dive on various topics:

• Use of Public Facilities for Campaign Elections – 2021 General Election Edition
• Regulating Signs During Election Season
• Supporting/Opposing Ballot Measures and Candidates
• Election Season Rules — Does COVID-19 Change the Game?
• Taking the Oath of Office During a Pandemic
• The Oath of Office for Local Elected Officials