Wash. Election Battle Heads for Courtroom

Wenatchee, Wash. -- In a nondescript courtroom in this small farming town, America's electoral system is about to stand trial.

The battle over Washington's contested governor's election touches on many of the questions that divide this country between rural and urban, Republican and Democrat, red and blue — and echoes frustrations of the past two presidential elections.

Republican Dino Rossi is challenging Gov. Christine Gregoire's victory in the closest statewide election in national history, alleging widespread problems including illegal votes cast by felons and dead people.

The challenge goes to trial Monday, months after Gregoire was sworn in. Rossi won the first count and a machine recount, but the Democratic stronghold of Seattle pushed Gregoire to a 129-vote win in a final, hand recount of 2.9 million ballots.

In rural Washington, the complaint is pretty simple: They're tired of Seattle choosing their political leaders.

"Seattle is the tail that wags the dog in the state," complained Republican King County Councilman Steve Hammond, whose working-class, suburban district is a 20 minute drive from downtown Seattle. "There is a disenfranchised feeling out there."

Add to those regional tensions the continuous parade of errors from the King County elections division — officials acknowledged finding 94 uncounted ballots in boxes as recently as last month — and you get a Republican brew of suspicion and resentment that resembles how Democrats felt after President Bush won the 2000 and 2004 elections.

Note: TVW, Washington state's public affairs network, will broadcast the trial in its entirety. Live streaming video and audio links are available at www.tvw.org/index.cfm.

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SEATTLE POST-INTELLIGENCER

Governor vote trial set to begin

Republicans will seek to prove Gregoire owes win to illegal votes

Saturday, May 21, 2005

By GREGORY ROBERTS
SEATTLE POST-INTELLIGENCER REPORTER

More than six months after voters marked their ballots for Christine Gregoire or Dino Rossi in the governor's race, the two candidates will start wrangling Monday in a Wenatchee courtroom over just who did get more votes in the tightest statewide election in Washington's history.

The trial of Rossi's challenge to Gregoire's hair-breadth win will distill the arguments about illegal voters, mishandled ballots and a host of other errors and omissions that have fueled a fiercely partisan dispute almost without interruption since Election Day.

Both sides have spent millions getting ready, and the secretary of state -- named as a defendant because he certified the election -- has laid out $250,000 in public money for outside legal help.

Gregoire and Rossi won't actually appear before Judge John Bridges in Chelan County Superior Court: Gregoire, a Democrat and former attorney general, is busy in Olympia running the state; Rossi, a Republican, is back on the Eastside, where he built a multimillion-dollar real estate empire before serving seven years in the state Senate.

For weeks after the Nov. 2 election, Rossi thought he would be the one measuring for drapes in the governor's mansion. He finished first in the initial tally by 261 votes. He was still ahead, by 42 votes, after a mandatory machine recount. But a final, hand recount, paid for by the Democrats as authorized by state law, gave Gregoire the win by 129 votes.

Now Rossi hopes another recalculation -- this time in court -- will again change the outcome.

Bridges will hear the case without a jury. But no matter what he decides after the two-week trial, his word almost certainly will not be the final one. Whoever loses can appeal to the state Supreme Court, and that likelihood will help shape the GOP's legal strategy.

The task facing the Republicans is not an easy one.

In some states, it's enough to show that the number of illegal votes exceeds the margin of victory to get an election thrown out. But in Washington, state laws and previous state Supreme Court decisions set a different standard: The challenger to an election must prove that the winner owes victory to illegal votes.

Bridges has made it clear in pretrial rulings that he'll follow those precedents, frequently citing a Supreme Court decision in 1912 involving a judicial election in Douglas and Grant counties that was decided by five votes.

That 1912 decision, Bridges said in a February hearing, also determined that with an improper vote "where there was no evidence to show for whom the elector voted, and because both candidates were innocent of wrongdoing, the vote must be treated between the parties as a legitimate vote."

Beyond that, Bridges said in February, "it may be problematical for petitioners (the Republicans) to ultimately prevail based on a theory or cause of illegal votes." And Bridges has said repeatedly that judges should be extremely reluctant to overturn election results.

But for the GOP, problematical is not impossible. They've got a total of more than 2.8 million votes in the election to play with, and they only need change the bottom line by 130.

The main Republican attack rests on illegal votes such as ballots cast by felons barred by law from voting; provisional ballots, issued at polling places when the voters' status is unclear, that were included in counts before confirmation of eligibility; and ballots of voters who voted more than once.

The Republicans have rounded up hundreds of votes they claim are illegal. Most come from King County, which gave Gregoire a whopping margin of more than 150,000 votes.

But that leaves the hurdle of "evidence to show for whom the elector voted."

The Republicans have rejected the idea of parading a bunch of voters, felonious and otherwise, to the witness stand to ask them for whom they cast their illegal ballots. Instead, they hope to show circumstantially who voted for whom, using statistical projections. It's the key to their case.

The idea is simple: Look at the overall percentage of support for Gregoire and Rossi in the precinct where an illegal vote was recorded, divvy up that illegal vote based on that percentage, and then subtract the result from the candidates' totals.

The net effect, the Republicans say, is a swing to Rossi of 230 votes or so, giving him the win by about 100 votes.

To make the strategy work, the GOP needs to do two things: persuade Bridges that their statistical approach is legitimate; and prove the existence of enough illegal votes so that, when the formula is applied to those votes, it erases Gregoire's 129-vote lead.

So the Republicans will call expert witnesses to buttress the validity of their statistical approach, and they'll invoke other elections cases from across the country in which the method has been applied.

The judge has set a stiff standard for documenting that a challenged vote is, in fact, illegal. So the Republicans have been scrambling madly to nail down as many illegal votes as possible, with the knowledge that, under their theory, illegal votes from Gregoire-leaning precincts will hurt her the most.

With an eye on the Supreme Court, the GOP also will introduce evidence about a range of elections errors in King County, such as failing to follow state regulations for tracking absentee ballots and compounding that by providing misleading accounts of those ballots.

That "fubar" strategy -- from an acronym that, politely spelled out, means "fouled up beyond all recognition" -- probably won't succeed in Bridges' court because of the 1912 precedent.

Unlike Bridges, the justices of the Supreme Court have the latitude to revisit their predecessors' decisions -- but they can only consider evidence entered during the trial.

The GOP may try to convince Bridges that the absentee-ballot mistake in King County demonstrates fraud, which would allow him to throw out the election without regard to who benefited from illegal votes. But the standard of proof for fraud requires the kind of detailed, specific evidence that the Republicans have not indicated they can provide.

With typical bombast, state GOP Chairman Chris Vance in March said Rossi had "a slam-dunk case." But he backed off that this week.

"I feel cautiously optimistic," Vance said. "I don't think it's a slam dunk. I'm not as certain as that."

Still, Vance said, "I would rather have our case than theirs."

For their part, the Democrats are playing defense, seeking to fend off the GOP assault on Gregoire's win. They have the advantage of watching the Republicans roll our their case first over four days, and then planning a counterattack.

For certain, the Democrats will try to undermine the GOP proposal for allotting illegal votes based on statistical patterns. They may argue the approach isn't permitted under Washington state law, or that it just isn't convincing enough to overturn an election.

The Democrats likely will bring in experts to testify that even if the basic method is accepted, the precinct model is flawed because it doesn't take into account a voter's gender and other factors (most of the illegal felon voters are males, and males favored Rossi). So an important factor in the case will be whose experts turn out to be more persuasive with Bridges.

To counteract the Republicans' illegal votes, the Democrats have come up with their own lists of illegal votes -- most of them from counties won by Rossi. If Bridges accepts the statistical method, his verdict could well rest on which side gets more of its claimed illegal votes included in the formula -- which is why the Democrats have been scrambling as madly as the Republicans.

The Democrats have some other arrows in their quiver. They are expected to ask Bridges to look at hundreds of votes from King County that were never included in the tabulation because of what the Democrats say were errors by elections workers. Unlike the illegal votes, which can be determined only circumstantially, the uncounted ballots are still stored in the King County elections department, and they could be opened and counted by Bridges.

"I feel very confident," state Democratic Party Chairman Paul Berendt said. "I believe that in the course of this trial, we are going to be able to make the case that Chris Gregoire should have received more votes than she was credited with after the election, and that any of the errors that took place harmed Christine Gregoire. They did not harm Dino Rossi."

If Bridges rules in Rossi's favor, it's not clear what the judge would order as a result. He could invalidate Gregoire's certificate of election, which would vacate the governor's office and pave the way for an new election as early as this fall. Or he could declare Rossi governor -- although Rossi has said he doesn't want to get the job that way and would act to set up a new election.

The Democrats would certainly appeal such a decision, and the Republicans likely would appeal a verdict in Gregoire's favor. The worst-case scenario for the GOP would be winning battles but losing the war: If Bridges accepts the precinct-based statistical method but its application still yields a Gregoire victory, Rossi's chances for a reversal by the Supreme Court dwindle.

To some extent, Vance said, Rossi has won already.

"The great fear of contesting an election is that you end up looking like a sore loser," Vance said. "That has not happened.

"There's no doubt that we have proven our case, in terms that everyone believes it was a mess," he said.

A recent opinion poll suggests he's right. Strategic Vision of Atlanta asked 800 Washington voters who they thought actually won the governor's race, and 57 percent said Rossi (with a margin of error of plus or minus 3 percentage points).

But 58 percent of those polled said they were not in favor of a revote.

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ON TV

TVW, Washington state's public affairs network, will broadcast the trial in its entirety. Live streaming video and audio links are available at www.tvw.org/index.cfm.

=========================================================== © 1998-2005 Seattle Post-Intelligencer
Governor vote trial set to begin

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