(dissenting) — The question before the court is whether an election held on November 3, 1981, can be subject to challenge several weeks after the election on the sole issue of the residence of some of those persons voting in the election. The challenge is allowed by the majority. I disagree and thus dissent.
Although I do not share the view of the majority that this *733action could be brought under RCW 29.65.010(5) rather than RCW 29.59.010, I will accept, for purposes of my dissent, the position of the majority that the action under RCW 29.65.010(5) is appropriate. I do point out, however, that the majority is in error in suggesting RCW 29.59 limits a residency challenge to 60 days before the election. While RCW 29.59.010 does limit a challenge by a registered voter to 60 days, the language in RCW 29.59.030 allows a challenge to an unqualified person at the time that person offers to vote. The challenge may be made "by the inspector or either of the judges, or by any legal voter." (Italics mine.) RCW 29.59.030. Nothing in RCW 29.59.030 limits the grounds of the challenge; thus, the challenge on the day of election on the ground of residency can be made by any legal voter in that election. See RCW 29.51.050. As so aptly cited by the majority,
legislative enactments which relate to the same subject and are not actually in conflict should be interpreted so as to give meaning and effect to both, even though one statute is general in application and the other is special.
Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 872, 602 P.2d 357 (1979).
The exact issue before the court is whether someone who is alleged several weeks after an election to be a nonresident is under the statute an "illegal" voter. The question of residency is highly technical and as is apparent from RCW Title 29 the Legislature has struggled to strike a balance between the twin values of finality in elections, see LaVergne v. Boysen, 82 Wn.2d 718, 513 P.2d 547 (1973), and the prevention of persons from voting who do not in fact reside in the jurisdiction in which the election is being held. No suggestion has been made by the majority that RCW 29.59, enacted by the Legislature to resolve this conflict, is constitutionally infirm.
The statute is specific. Registration shall be presumptive evidence of the registrant's right to vote. RCW 29.59.010. A challenge by a registered voter rhust take place 60 days before the election (RCW 29.59.010) or by an election *734inspector, an election judge, or a legal voter at the election in question (RCW 29.59.030). The right of a registered voter to vote must be challenged in accordance with the statute. Otherwise, the presumption of valid registration ripens into an unassailable right.
The reliance by the majority on Foulkes v. Hays, 85 Wn.2d 629, 537 P.2d 777 (1975) is misplaced. Foulkes states:
[T]he term "illegal votes" has been held to refer not to fraudulently altered ballots, but to votes "cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law."
(Citation omitted.) Foulkes, at 634. This begs the question. The vote is illegal only if it is cast by "persons not privileged to vote". Here, the persons whose votes are now contested were clearly "privileged to vote" and unless properly challenged as provided in the provisions of RCW 29.59 had a clear "right to vote".
What was done by those who may have been registered to vote within Gold Bar but who had resided outside Gold Bar at the time of the ballot in question may have been, in the words of the majority, "improper". Majority, at 730. This court's notions of impropriety should not, however, control voting. Voting is a right guaranteed by the constitution. Const. art. 6, § 1. Control of that right is within the power of the Legislature so long as it does not destroy or impair the right contrary to the state or federal constitutions. See State ex rel. Shepard v. Superior Court, 60 Wash. 370, 111 P. 233 (1910); Const. art. 6, § 6. Otherwise, it is the obligation of the court to uphold the system arrived at by the Legislature for registration and voting. If any fraudulent or criminal activity is involved, the Legislature has provided remedies and penalties under RCW 29.85. No such activity is alleged or shown here.
An election may be contested under RCW 29.65. RCW 29.65 provides the specific and exclusive grounds and procedures by which the right of a person declared elected to *735office may be contested. RCW 29.65.010(5) allows a contest "[o]n account of illegal votes." The votes must be illegal under the statute. Surely this court, of all institutions, ought to understand persons may be penalized by their government only for what is illegal, not for what is merely claimed to be undesirable or improper.
It is clearly illegal as well as improper for someone who is a lifelong resident of Seattle to vote in Gold Bar. See RCW 29.85.200. While it may be improper it is equally clear it is not illegal for a validly registered voter in Gold Bar to vote in an election in Gold Bar. At the time of the election it is undisputed the voters whose residence is now being questioned were validly registered voters in Gold Bar. This valid registration continues until the registration is changed, see RCW 29.10, or until properly challenged, see RCW 29.59. Neither event occurred in this case. For this court now to hold otherwise moves the registration and election process away from being governed by law and places it within the whims, caprices, and notions of propriety held by judges.
I dissent.
Utter, Brachtenbach, and Dore, JJ., concur with Dol-LIVER, J.
Reconsideration denied September 27, 1983.