Stairs lead to the second floor of the Lewis County Courthouse.
Lewis County’s home rule charter will be on the ballot this fall, a judge ruled Thursday, but whether the election will count will remain in legal limbo through the Nov. 6 general election.
“It appears to me that it is too late for this court to even quickly address the merits of the case before the ballots are sent out,” said Thurston County Superior Court Judge Carol Murphy.
With no time to alter the already-in-motion home rule charter process, Murphy ruled Thursday that the election will take place as planned, scheduling another hearing for Nov. 1 — by which time voters will be submitting ballots — to continue exploring the ongoing legal dispute over whether Lewis County’s method of electing freeholders is constitutional. Even then, the likelihood of further appeals means the matter is likely to remain unsettled when ballots are counted on Nov. 6.
Murphy’s ruling came in response to a last-minute challenge by One Lewis County, the political action committee that initiated the home rule charter process. Though the group is eager to see the charter go forward, it believes the system Lewis County created to meet the home rule requirements does not pass legal muster.
State law calls for the election of freeholders, who would take office if voters pass the home rule charter to draw up a new system of government for the county. Though the statute says the freeholders should be apportioned by legislative or commission districts, county commissioners further divided Lewis County’s three commission districts into 15 equally populated sub-districts, which One Lewis County believes is unconstitutional.
Without ruling on the merits of that argument, Murphy said the group’s challenge came too late to change how the election is executed.
“This court is inclined to set a merits hearing prior to Election Day in November, in order to have as many remedies as possible for the plaintiffs in the event of success,” she said. “I believe that the delay in the plaintiffs bringing their claims has simply made it too late for the court to decide the case prior to the issuance of ballots.”
With the legal tangle unresolved, Lewis County voters will soon receive ballots asking them whether or not to initiate the home rule charter process and to elect freeholders under the current sub-district system. What they won’t know when those ballots are received is whether the results of the election will be nullified, freeholder elections will need to be redone with different boundary lines or if the results of the November election could affect the ability to continue the process in the future.
“We’re concerned that it’s in limbo,” Trevor Zandell, attorney for the plaintiffs, said in an interview following Thursday’s hearing. “The fact that it’s in limbo alone does place a cloud over the issue, and we don’t want the issue to fail. We’re confident that the judge will ultimately rule that the procedure is unconstitutional, and therefore the vote that is being taken now will not be counted, and we will revamp the procedure in the next election.”
Zandell is representing Fred Rider, Kelly Smith Johnston and the Centralia-Chehalis Chamber of Commerce, which formed One Lewis County in 2017. He called the situation “unprecedented territory,” saying it remains unclear whether a ruling that the current process is unconstitutional will scuttle the home rule effort altogether or result in a mandate that Lewis County redo the election under different parameters.
“We wanted today for her to try to fix the situation for this election,” he said. “She did not feel that was feasible. Our next backup will be to toss these results out and have the election in the future.”
Lewis County civil deputy prosecutor Cullen Gatten argued that the pre-election changes sought by One Lewis County came too late.
“Lewis County believes that the constitutional question is important, however that question can be decided after the election proceeds,” he said in the hearing. “The reason why Lewis County has that position is because the remedy sought by the plaintiffs … is impossible because of the timing.”
Murphy likewise questioned the timing of One Lewis County’s suit. Petitions for the home rule charter were certified in February, and county commissioners first proposed the sub-district plan in March, approving it in April. It wasn’t until Aug. 31 that One Lewis County sent a letter to the county challenging the plan, filing suit on Sept. 12 when their demands went unmet.
“(Changing the election) might have been possible had your clients brought this case many months ago,” Murphy told Zandell.
Zandell argued that One Lewis County needed the intervening months to research precedent on home rule charters in other counties, file public records requests to determine how county officials reached the current plan and pull together the funding needed for legal representation.
“If we would have brought the suit in June before we had done the research ourselves … we would have no way of knowing the soundness of our position,” he said. “It is a predicament. It is a a squeeze of a situation that we wish we were not in.”
Murphy said those reasons constituted an “explanation” but not a “justification.”
Gatten likewise challenged the timing of the suit.
“It seems as if the plaintiffs knew and had a reasonable opportunity to decide whether or not they had a cause of action, because this resolution was passed on April 2,” he said. “The county had over 17 different open public meetings with the Board of County Commissioners upon which any of these issues could have been addressed.”
In response to a question from Murphy, Gatten said county officials had no formal or informal knowledge of a pending legal challenge before receiving One Lewis County’s demand letter on Aug. 31.
However, in an Aug. 23 interview with The Chronicle, Lewis County prosecutor Jonathan Meyer said he had “heard some grumblings” about a potential legal fight from One Lewis County, but believed the sub-district plan to be legally sound.
Much of the hearing addressed various what-ifs on the process of holding an election while the legal standing of its outcome is still unclear. Gatten said the county is prepared to issue slips along with ballots explaining that the status of the home rule issue is still in contention, which drew a swift rebuke from Murphy.
“I’m concerned about steps taken in light of this litigation without court involvement,” she said.
Gatten replied that the county would not include the slips unless ordered to do so. That proposal, Zandell said, added to the “specter” of validity hanging over the election, one that threatens to sabotage the results. He said he was concerned that the legal jeopardy of the home rule process could cause the measure to fail in the November election, after which county commissioners could declare the matter settled before the constitutional question is resolved.
“(This is) highly publicized in the press in Lewis County that there’s this lawsuit, this may be unconstitutional, this whole process may be wrong,” he said. “Now there’s going to be additional people who will vote against the measure for that reason or not vote on the measure. It gives it a very low chance of succeeding.”
After Murphy questioned whether the court could still address the matter after a failed election, Zandell said there’s a “strong argument” that the home rule process would be dead, saying that the court may not be able to compel commissioners to “organically” redo the process.
The Nov. 1 hearing, Murphy said, will focus solely on the constitutional question, for which both sides believe they have a strong argument.
“The constitution is very clear. The county legal authority has only two options for apportionment,” Zandell said. “When a statute specifies two or more options, all omissions are excluded.”
Zandell said One Lewis County will push for a do-over election that will elect five freeholders from each commission district, likely to take place in November of 2019.
Lewis County sees it differently.
“The apportionment that was made by the Board of County Commissioners was made in proportion with the population of those county districts,” Gatten said. “The constitutional provision that’s being challenged here allows for the discretion of the legislative authority to decide whether to apportion the way that it did.”
Legally, the matter will remain unsettled until at least Nov. 1. The county will begin sending ballots to military and overseas voters on Sept. 22, and all ballots must be mailed by Oct. 19. The deadline for voters to submit ballots is Nov. 6.
