## Facts

- Kenny Foulkes challenged incumbent Gordon Hays in the November 1974 election for Adams County Commissioner.
- The initial count of 3,025 ballots showed Foulkes ahead by 37 votes.
- Hays requested a recount; the recount reversed the result and declared Hays elected by 71 votes, with most changes arising from 12 of 30 precincts.
- Between the initial count and the recount, ballots were sealed in waxed envelopes, placed in locked canvas bags with keys tied to the outside, and stored in a county auditor’s vault accessible to multiple people during working hours.
- Foulkes filed a timely election contest under RCW 29.65.010 and also moved under RCW 29.04.030 to correct election fraud or error; the matters were consolidated.
- A document examiner testified that 46 of 53 selected suspect ballots contained votes for Hays made by someone other than the person who marked the remainder of the ballot.
- The trial court dismissed the RCW 29.65.010 election contest but granted relief under RCW 29.04.030, set aside the recount, and ordered a new election.
- Hays appealed the nullification of the recount and new-election order; Foulkes cross-appealed, seeking reinstatement of the original tally rather than a new election.

## Issues

1. Whether ballots allegedly altered after the original count but before the recount constituted “illegal votes” under RCW 29.65.010(5), permitting relief via an election contest.
2. Whether the superior court had authority under RCW 29.04.030 to set aside recount results and order a new election based on evidence of post-election ballot tampering while in official custody.
3. Whether the proper remedy was reinstatement of the original tally rather than a new election.

## Decision

- The Washington Supreme Court affirmed the trial court in all respects.
- Ballots altered after being lawfully cast were not “illegal votes” under RCW 29.65.010(5); dismissal of the election contest was proper.
- RCW 29.04.030 authorized the court to correct election fraud or error in the handling and custody of ballots, including post-election tampering affecting the recount.
- Given the compromised ballot security and the resulting uncertainty about the true vote, ordering a new election was an appropriate remedy; reinstating the original tally was rejected.

## Legal Principles

- “Illegal votes” under RCW 29.65.010(5) refers to votes invalid at the time cast (e.g., cast by ineligible voters), not ballots later altered after a lawful vote was cast.
- RCW 29.04.030 provides a distinct remedy allowing courts to correct fraud or error in the conduct of the election process, including tampering with ballots while in official custody.
- When ballot integrity is compromised such that the true will of the electorate cannot be reliably determined, a court may set aside the questioned results and order a new election rather than declare a winner based on disputed counts.

## Conclusion

The court held that post-count ballot alteration is not addressed through the “illegal votes” election-contest statute, but it may be remedied under the fraud-or-error statute; because the handling and custody of ballots undermined confidence in both the recount and the initial tally, the proper remedy was to set aside the recount and require a new election.


Foulkes v. Hays, 85 Wash. 2d 629 (Wash. 1975)