Rossi v. Gregoire: What Matters Now

In all the hubbub if this election and all its accouterments, it’s easy to lose sight of what matters. Broadly speaking, the only thing that matters is the Washington State Supreme Court decision that will be made after the Chelan court decision is appealed. Within that, though, there are a lot of things that matter, based on Washington law, and a lot of things that don’t–and it can be easy to confuse the two. First off, let’s look at what the law actually says:

Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election for any of the following causes:

No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes.

RCW 29A.68.080
Misconduct of board – Number of votes affected – Enough to change result.

When any election for an office exercised in and for a county is contested on account of any malconduct on the part of any election board, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of the vote of such precinct or precincts will change the result as to such office in the remaining vote of the county.

When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that illegal votes were cast, that, if given to the person whose election is contested in the specified precinct or precincts, will, if taken from that person, reduce the number of the person’s legal votes below the number of legal votes given to some other person for the same office.

No testimony may be received as to any illegal votes unless the party contesting the election delivers to the opposite party, at least three days before trial, a written list of the number of illegal votes and by whom given, that the contesting party intends to prove at the trial. No testimony may be received as to any illegal votes, except as to such as are specified in the list.

RCW 29A.68.110
Illegal votes – Number of votes affected – Enough to change result.

No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.

50,000 ballots enhanced illegally: This matters immensely. These King County ballots were not read correctly by the vote tabulating machines, and so were taken out and “enhanced” so that the machine could read them. This is perfectly legal -- however, the election workers enhanced them to the point that it was impossible to review those ballots, which was supposed to be done. This is in violation of state law. Even if only 1% of those ballots had been determined to be invalid, that may have be enough to throw the election back to Rossi. This is an irregularity (or misconduct) that is certainly material to the result.

1,800 voterless ballots: It sure seems like this should matter, based on the RCW noted in this Sound Politics post. If the votes really are from voters who voted without signing in, as claimed by Dean Logan, it certainly should matter. If they didn’t sign in, we have no way of knowing whether they were registered voters, or voted twice, or even citizens. If it’s something more sinister, then it matters even more. It could, conceivably, be beaureaucratic incompetence, losing thousands of voter names. But I somehow doubt that -- and there’s no way to tell at this point. So obviously, this matters, even if Logan says it doesn’t. “This always happens” may be an excuse when “this” is smaller than the margin of victory, but it isn’t one now–again, it’s either an irregularity or misconduct material to the result.

348 unverified provisional ballots mixed with the real ballots: Once again, while this wouldn’t matter in a normal election, it matters here, because these disputed ballots are a great deal larger than the margin of victory. There’s no way of knowing if these ballots were signed by registered voters, unregistered voters, illegal aliens, space aliens or Mickey Mouse. This may be the strongest piece of the contest, as it has been well documented and was even anticipated before the election. This is clearly misconduct material to the result.

Felons voting: This obviously matters -- it says as much right there in part 5.a.ii of the first quoted RCW. So far, having looked at only Pierce and Snohomish counties, the BIAW has found 89 felonious votes. If there are just 40 more found in King County or elsewhere, that invalidates the election ipso facto. If those aren’t found, of course, they won’t matter at all. According to the second-to-last RCW cited abote, the names of all the voting felons will have to be produced in court, which will be all sorts of fun -- but it should be enough all by itself, let alone lumped in with everything else.

Dead voters: It makes for some catchy headlines and some amusing pictures, but there aren’t nearly enough dead voters to even come close to having an effect on this contest. I’m glad they were found, though. It provides an example of election fraud that is easy to relate to, and has no doubt helped convince most of Washington that a revote is needed. It will not, however, convince a judge.

Systemic problems: Systemic problems, problems with election law as written, as important as they are to fix, will not help with the contest -- namely, because the same systemic problems will almost certainly be in play in any revote. What needs to be shown -- and clearly has been -- is unique instances of illegal voting, or voting irregularities, that can be avoided in the next vote. Again, I’m still glad systemic problems are being brought to light, so that they can be solved. But again, it won’t matter to a judge.

Gregoire’s inauguration: This doesn’t matter a whit, according to the law. Don’t let anyone tell you different.

Polls and petitions: While these matter immensely in gauging the mood of the people, and certainly affected Rossi’s decision to go forward with the contest, they won’t actually come into play once the trial starts. This will be good to remember if the populace, understandably, starts getting tired of the mess (though I hope they’re in it for the long haul).

(Care to see something kind of spooky and completely irrelevant? If you take the total difference between Rossi’s initial margin of 261, and Gregoire’s current margin of 129, you get 390. If you subtract from that Rossi’s second margin of 42 votes, you get 348 -- which is the exact number of provisional ballots mixed in with regular ballots. Ooooh -- spooky.)

Looking at the facts right next to the law, this looks for all the world like an open-and-shut case. I can’t imagine the legal backflips and distortions that would be needed to not throw out this election. If any readers would care to give it a shot, I’m all ears. I certainly look forward to hearing the Democratic arguments in court. So far, they haven’t responded substantively to the facts, and I’m curious to hear what they say if they ever do.

You can peruse the current and archived info at http://www.soundpolitics.com for the status and history of this debacle. You'll find links to source material and other info gatherers at Sound Politics.

There are numerous FR threads. Try search words such as Rossi, Gregoire, Governor, Fraud, Vote, Washington, John Fund (he's done some op-ed pieces in the "Wall Street Opinion Journal"). Many of the threads have other URL's posted in them.

Also, the Washington FR Message Board has a lot of information daily on what's going on, including your usual level of excellent FReeper insight, insider tips, and evaluation. ;-)

You might find this a helpful summary.

Don't Count Rossi Out
A stolen election in Washington state? Not if bloggers can help it.

John Fund, The Wall Street Opinion Journal
Jan 10 2005
http://www.opinionjournal.com/diary/?id=110006139

The new media--talk radio, bloggers and independent watchdog groups--have followed up their success in exposing Dan Rather's use of phony memos by showcasing another scandal: Washington state's bizarre race for governor, which features a vote count so close and compromised it allows Florida to retire the crown for electoral incompetence. If Democrat Christine Gregoire, who leads by 129 votes and is scheduled to take the office Wednesday, eventually has to face a new election, it will have been in large part because of the new media's ability to give the story altitude before it reached the courts.

When the idea of a revote was first broached three weeks ago by a moderate Republican former secretary of state, Ms. Gregoire's reaction was swift: "Absolutely ludicrous." With Republican candidate Dino Rossi filing a formal court challenge last Friday alleging a massive breakdown in the vote count, she may still think the idea of a court-ordered revote is laughable, but her legal team is taking it seriously. "There's not even a 50-50 chance a court would rule with Republicans to set aside the election," says Jenny Durkan, a Gregoire confidant who is representing state Democrats. Hardly an expression of supreme confidence.

The feeling that a revote is possible is buoyed by polls showing the public still thinks Mr. Rossi, who won the first two vote counts before falling behind in the third, actually won. His legal team has also compiled a strong body of evidence showing irregularities, certainly one far more detailed than that which North Carolina officials used last week to order a statewide March revote of the race for agriculture commissioner after a computer ate 4,438 ballots in a GOP-leaning county. Without those votes, the GOP candidate was leading by 2,287 votes out of 3.5 million cast.

In Washington state, the errors by election officials have been compared to the antics of Inspector Clouseau, only clumsier. At least 1,200 more votes were counted in Seattle's King County than the number of individual voters who can be accounted for. Other counties saw similar, albeit smaller, excess vote totals. More than 300 military personnel who were sent their absentee ballots too late to return them have signed affidavits saying they intended to vote for Mr. Rossi. Some 1 out of 20 ballots in King County that officials felt were marked unclearly were "enhanced" with Wite-Out or pens so that some had their original markings obliterated.

Most disturbing is the revelation last week by King County officials that at least 348 unverified provisional ballots were fed directly into vote-counting machines. "Did it happen? Yes. Unfortunately, that's part of the process in King County," elections superintendent Bill Huennekens told the Seattle Times. "It's a very human process, and in some cases that did happen."

King County elections director Dean Logan, Mr. Huennekens' boss, also concedes the discrepancy between the number of ballots cast and the list of people who are recorded as voting. Even though the gap is 1,200 votes, he says, "that does not clearly indicate that the election would have turned out differently." Are voters supposed to trust an election merely because it can't "clearly" be shown to be hopelessly tainted? Mr. Logan is certainly singing a different tune now than he was on Nov. 18, when he responded to charges of voting irregularities in an e-mail to colleagues, which read in part: "Unfortunately, I have come to expect this kind of unsubstantiated crap. It's all too convenient, if not now fashionable, to stoop to this level when there is a close race."

Slade Gorton, a Republican former state attorney general and U.S. senator who is advising Mr. Rossi, says a court should order a revote rather than declare valid one of the two earlier vote counts that Mr. Rossi won. "No one can govern effectively under the cloud this race has created," Mr. Gorton says. He notes that state law doesn't require any showing of fraud to contest an election. "That is irrelevant to whether the election should be done over," he says. "The law is quite clear in giving a court the right to void any election where the number of illegal or mistaken votes exceeds the margin of victory, and it has done so in the past."

Mr. Gorton notes that Sam Reed, the Republican secretary of state who certified Ms. Gregoire's victory, issued a report in 2003 noting that King County's sloppy election procedures could lead to just this sort of election meltdown. "The county is not consistent in their ballot enhancement procedures," Mr. Reed's report concluded. "Ballot enhancement, while done in full view of political observers, did not use the procedures outlined in the Washington Administrative Code. Inconsistencies in how this procedure is handled significantly increase the possibility of a successful election contest."

Much of the evidence uncovered on King County's flouting of election laws first appeared on Soundpolitics.com, a blog run by computer consultant Stefan Sharkansky. A former liberal who worked for Michael Dukakis in 1988, Mr. Sharkansky calls himself a "9/11 conservative mugged by reality." He uses his knowledge of statistics and probability to illustrate how unlikely some of the reported vote count changes are. He also uncovered the fact that in Precinct 1823 in downtown Seattle, 527, or 70%, of the 763 registered voters used 500 Fourth Avenue--the King County administration building--as their residential address. A full 61% of the precinct's voters only registered in the last year, and nearly all of them "live" at 500 Fourth Avenue. By contrast, only 13% of all of King County voters registered in 2004.

Not all of the voters at the county building are homeless or hard to find. A noted local judge and her husband have been registered at the county building for years. When I called her to ask why, she became flustered and said it was because of security concerns, specifically because "the Mexican mafia are out to get me." When I pointed out that her home address and phone number were easily found on the Internet and in property records, she ended the conversation by refusing to answer a question about whether she had improperly voted for state legislative candidates who would represent the county building but not her residence.

Even liberal officeholders in Seattle privately acknowledge that the combination of bloggers, talk radio and local think tanks like the Evergreen Freedom Foundation have helped skeptics of the election's validity win the public relations war. Evergreen president Bob Williams says his group isn't focused on overturning Ms. Gregoire's election so much as on highlighting the obvious problems in the vote count that cry out for permanent legislative fixes. He notes the public is paying attention: A poll taken last week by Seattle's KING-TV found that by a 20-point margin state residents back a new election, and by 53% to 36% they don't think Mr. Rossi should concede.

Seattle Times columnist Joni Balter says the attack on the vote count by Republican-leaning media "is by now a near-military operation--air, land and sea." She blames radio hosts Kirby Wilbur, John Carlson and Mike Siegel for keeping listeners updated and in a constant state of outrage. "There's a lot to be outraged about," responds Mr. Carlson, an unsuccessful candidate for governor in 2000. "Last week, I did 13 out of my show's 15 hours on the election and people wanted more."

In his new book, "Blog: Understanding the Information Reformation," radio host and law professor Hugh Hewitt calls the new media a form of "open-source journalism" in which gatekeepers can no longer control what reaches the public. Readers and listeners interact with bloggers and talk show hosts so that a free market of ideas and information can emerge. "Blogs analyzed the Washington state election shenanigans in a more sophisticated and comprehensive way than the mainstream media," he told me. "When a swarm of blogs and new media focus on a story it can fundamentally alter the general public's understanding of an event or person. Ask John Kerry, Trent Lott, Tom Daschle and soon-to-retire CBS anchor Dan Rather if they think the new media changed people's perceptions of them."

Similarly, when Christine Gregoire takes the oath of office as governor on Wednesday, she will still face a threat to her seat of power should the new media keep up the pressure and more evidence of a tainted vote count emerges in court.

She would do well to recall what happened in Minnesota after the 1962 election for governor there. Republican Elmer Anderson won a squeaker and was sworn in, but a recount of disputed ballots ground on. A hundred days into Mr. Anderson's term, a panel of three state judges ruled that Democrat Karl Rolvaag had actually won by 91 votes. To end the legal wrangling, Mr. Anderson dropped any appeals and calmly left office, allowing Mr. Rolvaag to move into the governor's mansion.

You can expect the new media to talk up that historical example a lot as they seek to instill in the public's mind the belief that Washington state's election for governor isn't over just because after Wednesday someone occupies the office.

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