SPOKANE — Attorneys representing Grant County, the Moses Lake School District, and a group of voters contesting the results of last year's $135 million school construction bond made their cases before a three-judge panel of the Washington State Third District Court of Appeals on Monday, nearly a year after district voters barely approved the measure.
“We are asking the court to set aside a special election on a bond measure based on the admitted and complete failure of the Grant County auditor to comply with what the superior court below described as the telephone requirement,” said Moses Lake attorney George Ahrend.
Ahrend is representing six school district voters — Fred Meise, Doug Bierman, Pat Hochstatter, Mike Counsell, Jason Melcher and Jared Pope — who filed suit against Grant County Auditor Michelle Jaderlund last February, claiming she failed to follow the law while counting disputed ballots in the closely-fought bond election.
The members of the three-judge panel hearing the case — George Fearing, Kevin Korsno and Laurel Siddoway — agreed to expedite their ruling, and have it available by March 15.
At issue is Jaderlund's handling of 31 ballots with disputed signatures where the voters who cast those ballots did not respond to a letter asking them to clarify their signatures. Ahrend said the law requires the auditor to follow up with a phone call, something everyone admits Jaderlund did not do.
Grant County Superior Court Judge John Antosz, who heard the original case last March, ruled that despite Jaderlund's failure to make those phone calls, the auditor was “in substantial compliance” with Washington election law.
However, Ahrend argued that the 31 uncounted ballots could have changed the outcome of an election with a two-vote margin, and so the auditor was not substantially complying with the law.
“The reason you have to say no is because the number (of voters) who weren't called in violation of the statute was more than the electoral margin,” Ahrend said. “It would have made a difference.”
However, both Fearing and Korsno wondered if any of the 31 voters were contacted to find out how they voted, or whether the six petitioners even had standing to argue on their behalf.
“Why should someone else enforce my right if I decide not to exercise it?” Korsno asked.
Ahrend said the legislature gives that right to challenge possible disenfranchisement to all voters as a way to ensure the integrity of elections.
“We all have an interest in ensuring elections are freely and fairly conducted and that elected officials are carrying out their responsibilities,” Ahrend said.
Kate Matthews, an attorney with the Grant County Prosecutor's office who specializes in appeals, said that while negligent, the auditor's failure to make phone calls did not reach the level of misconduct or fraud, and thus there is no legal cause to overturn the result of the bond election.
“Did we have an election that fairly represented the will of the people?” Matthews asked. “Under the facts of the case, we argue that yes, we did.”
Matthews argued that there were over 100 ballots with signatures disputed by the canvassing committee, and over 75 percent of those who were sent letters responded and corrected their ballots.
Jerry Moberg, an attorney representing the Moses Lake School District, said that no one was disenfranchised in the February 2017 bond vote.
“(The 31 ballots are) defective because of a mistake made by the voter, and not a mistake made by the county,” Moberg said. Because there was no fraud or official misconduct, Moberg said the court cannot invalidate the bond election.
“Every voter who wanted to vote in this election had the opportunity to cast a ballot,” he explained to the three appellate court judges. “What you're faced with now is saying under what circumstances can you invalidate an entire election because of 31 defective ballots.”
“The auditor had a duty,” Fearing said to Moberg. “How can that be substantial compliance when the auditor did not follow a duty?”
The three judges gave no sign how they would rule, only that they would have a ruling by March 15.
“Is that realistic, though?” Korsno asked at the beginning of the hearing. “I suppose whoever loses this will seek further review.”
While attorneys arguing before the panel were non-committal about appealing a future court ruling, James Mitchell, who handles civil proceedings for the Grant County prosecuting attorney, said the county would continue to defend the auditor.
“If they rule against us, we'll have to see what the state Supreme Court has to say about that,” he said.