New election wouldn’t be state’s first
Sun., Jan. 23, 2005
A close election hands the Republican candidate a victory by a thin margin.
The Democrat asks for a recount, and the winner on election night becomes the loser after the ballots are tallied again.
Charges of fraud are bandied about as the Republican challenger goes to court to overturn the election. Courts don’t have any such power, the Democrat counters.
While this may sound familiar, it is not the story of Dino Rossi, Christine Gregoire and the election of 2004. Rather, it’s the story of Kenny Foulkes, Gordon Hays and the Adams County Commission election of 1974.
The eventual outcome of that small county election might hold the key to what happens this year in the governor’s race. It’s the precedent the state Republican Party is citing in calling for a revote for the state’s chief executive.
The GOP’s lawsuit in Chelan County Superior Court says there are so many questions about illegally or improperly cast ballots that Gregoire’s 129-vote margin of victory is suspect and a new election should be held.
Democrats argue that there’s no evidence of improprieties and the courts don’t have the authority to order a revote for governor.
But the courts did order a revote for Foulkes and Hays, two well-known political figures who ran for Adams County commissioner in 1974.
In that case, a court concluded that the way the ballots were handled – or mishandled – was enough to cause questions about the election and order a new vote.
Hays had represented the county’s 3rd District, which was essentially the city of Othello in western Adams County, for four years. Foulkes had been a commissioner in the 1960s, representing the eastern part of the county around Ritzville, but had moved to Othello after losing an election to Ralph Danekas in 1972.
The contest between Hays and Foulkes wasn’t particularly contentious. Foulkes, now 87 and living in Spokane, recalled recently: “We didn’t disagree on much.”
Hays died in 2002, but Danekas – who served with both – recalled recently that the biggest distinction between the two during the campaign was probably what part of the county they were from. Hays was born and raised in Othello, which at the time had more Democrats; Foulkes originally was from the more Republican dryland farming areas around Lind, and had only lived in Othello a few years.
Othello had grown to become the county’s largest city, and some of its residents were arguing the county seat should be moved there from Ritzville, Danekas said. Like most Washington counties, the candidates ran in a primary in their district, but countywide in the general.
Elections were relatively low-tech in Adams County in 1974.
There were few absentee ballots, and most voters went to a polling station in one of the county’s 30 precincts, where they received a paper ballot and marked an X in a box next to the name of the candidate of their choice.
Ballots were counted by poll workers at the polling stations, and their reports for each race, along with the ballots, were sent to the courthouse, where elections officials tallied the precinct reports and stored the ballots in a vault.
In the final election count, Foulkes topped Hays by 37 votes out of 3,025 cast.
Days later, Hays demanded a recount, which showed him ahead by 71 votes. He was declared the winner.
Foulkes filed a lawsuit contesting the election in Adams County Superior Court, which brought in a retired judge from Spokane to hear the case. Foulkes claimed that “illegal votes” had been cast – that some ballots originally marked for him had been erased and remarked for Hays by someone else, and other ballots that hadn’t been marked for either had been marked later for Hays.
County Auditor Susie Razey, the county’s top election official who had held the post for 14 years, described Foulkes’ effort as “hunting for straws.” In an interview with The Spokesman-Review at the time, she said the ballot bags were properly stored after the election and brought up from the recount “still sealed with the sealing wax.”
In a trial in early January 1975, Foulkes’ attorney brought in police handwriting experts from Seattle and Spokane who said they were sure the X’s on some ballots for the commissioner race were different from the X’s for the other candidates. An expert called by Hays’ attorney disagreed, saying he thought they were marked by the same person.
None of the experts found enough questionable ballots that would have overturned Hays’ 71-vote victory margin.
Other testimony at the trial showed that the ballots had been stored in locked bags in a vault. But the keys were in the locks, the wax seals could have been broken and resealed, and the vault was open all day.
Judge Ralph Edgerton agreed that at least some ballots apparently had been changed. But the bigger problem was the way the ballots were stored. That constituted negligence by elections officials that made fraud possible, he said, and was grounds for a new vote. He scheduled a revote for March 4.
Adams County Prosecutor Richard Miller began a criminal investigation into possible vote tampering and eventually sent the ballots to the FBI crime lab for analysis.
Hays appealed Edgerton’s ruling, saying a judge didn’t have the authority to order a new election when there was no proof of who cast the illegal votes or which election official had been negligent. Foulkes asked the court to just declare him the winner on the basis of the first count. The new election was delayed, and the state Supreme Court heard arguments in the spring and issued its ruling in July.
Edgerton was right, the high court said in a unanimous ruling. Foulkes didn’t need to show who altered the ballots, Justice Robert Utter wrote, it was enough to show that elections officials had been negligent in the way the ballots were stored between election night and the time the recount was conducted. “A padlock with a key is no lock at all,” Utter noted.
A real revote
The history of legislation on contested elections may be “murky,” Utter wrote, but a court clearly has “the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect.” It didn’t have the authority to grant Foulkes’ request to reverse the recount and declare him the winner.
A new election was held in November 1975, and the race was again close.
This time, Foulkes won by 206 votes out of 3,458 cast. There was no recount, and Foulkes replaced Hays to serve out the remaining three years of that term.
The day after the election, County Prosecutor Miller said there was no concrete evidence of ballot tampering, although four bags of ballots had been opened after the election and before the recount. If Razey didn’t resign, he’d order a recall election.
She resigned the next day, saying a deputy she refused to name had opened some of the locked ballot bags the year before without authorization, “out of curiosity.”
She was quoted in The Spokesman-Review as saying she felt firing the employee would be “vindictive,” and she was resigning because she had kept quiet about it. She added that she thought she could win a recall election but “didn’t feel it was worth the agony.”
Two weeks later, Deputy Auditor Betty Pearson issued a statement saying Razey had ordered her to go into the vault after the 1974 election, open the locked bags from the Othello precincts and recount the votes so they could be compared to the official tallies from election night.
The next day, she opened other locked bags of ballots, also under Razey’s order, to compare results from other precincts.
A replacement auditor from outside the department was eventually appointed. Razey moved to Chewelah, where she died in 1999.
Foulkes remains convinced that the ballots were altered.
Miller, now an Adams County Superior Court judge, doesn’t think so. The FBI experts told him there was “absolutely no way” to determine that with just an X.
He doubts any ballots were changed, because there were never enough questionable ballots to have tipped the election for Hays.
Instead, he suspects Razey checked several precincts after the election, realized that the official tallies were off, and told Hays to ask for a recount. “We never did find fraud, just negligence,” Miller said last week.
As far as the courts were concerned, however, that was enough, he noted.
“If the election itself was questionable, it was better for the electorate to be sure,” he said, and hold a new election.
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