WA Gov. Race: Try, Try Again

We have generally decried the recent trend toward attempts to settle elections after the fact in the courts. But the voting controversy in Washington State is a special case. As Byron York reports elsewhere in [the Feb. 14 issue of NR], it is impossible to know who truly won the Washington gubernatorial race between Republican Dino Rossi and Democrat Christine Gregoire. Gregoire has just taken office, having overtaken Rossi in a second recount. Her winning margin: 129 votes out of 2.8 million votes cast. Rossi had won the initial post-election-day count by 261 votes, and the first machine recount by 42 votes. Throughout the process, Gregoire has been helped by the ability of heavily Democratic King County (home to Seattle) to produce new batches of uncounted votes, including 573 supposedly mistakenly disqualified ballots that gave Gregoire her winning margin.

Rossi has filed a contest of the election in state court, as allowed by the state constitution. (He chose not to pursue action in federal court using the fanciful equal-protection arguments that are the unfortunate spawn of Bush v. Gore.) The exact standard he will have to meet will be decided by the judge, but at the very least he will have to prove that the number of ballots accounted for by fraud, error, or illegal votes exceeds Gregoire's margin of victory. At 129, and with plenty of questionable ballots in King County alone, he should meet any reasonable test on this score. Then, the judge will have a number of remedies, including a statewide re-vote. That is the option favored by Rossi, who argues that the vote-counting process has been so chaotic and mishandled that no one can assume the governorship except under a debilitating cloud of doubt.

He is right. The painstaking precinct-by-precinct analysis of blogger Stefan Sharkansky at soundpolitics.com shows that in King County alone, there are 3,700 unaccounted-for ballots or voters. Some precincts have more ballots than voters, for a total of 2,900 "extra" ballots. Other precincts have more voters than ballots, for a total of 800 "extra" voters. These mystery voter-less ballots and ballot-less votes obviously are enough in themselves to put Gregoire's 129-vote margin in serious doubt.

Other irregularities abound. The Seattle Times has reported that 129 felons voted in King and Pierce counties. At least 348 provisional ballots — which are supposed to be closely inspected to see if they are legitimate — were directly fed into machines and counted in King County. Some 55,000 optical-scan ballots (ballots on which the voter marks a bubble) in King County were "enhanced" so that the voters' supposed intent could be determined, with no uniform standard governing the process. Roughly 500 voters used the address of the King County Administration building as their home address.

This all makes for an irrecoverable mess that Kirby Wilbur and other Washington state talk-radio hosts, the Wall Street Journal's John Fund, and above all Sharkansky have helped expose. Even Dean Logan, the Democratic director of elections in King County, when asked if we will ever know who got more votes, has said, "Statewide, you know I think that perhaps we'll never know the answer to that because of it being as close as it is."

There are reasonable grounds for considering a re-vote unwise. York advances a few of them in his article. What precedent would it set? But elections this razor-close are extremely rare, and re-votes have happened before. As Fund points out, North Carolina is about to have a statewide re-vote in an agriculture-commissioner race. The trend toward litigated election results is already well underway and there seems little chance of stopping it. It may be that Rossi will hurt his political future by seeming to be a sore loser in this race. But that judgment is for him to make. If he believes the principle of upholding the integrity of Washington's election process is more important than the political risk he runs, so be it.

There is, as many have noted, something to be said for finality in an election. We agree. But the only way to get it in this case is to tighten up procedures, and vote again.

129 votes was from Sunday Seattle Times covering three counties King, Pierce and Snohomish (or Thurston?).

Today a press release has the Republicans claiming to have found 300 verified felons voting, and the matching is not yet complete.

The dems in that Sunday piece suggested that each and every felon would have to take the stand and state how they voted.

I find it preposterous that a felon, having committed a voting crime would be ordered to testify who they voted for. How would anyone believe anything they say? There may also be 5th Amendment issues, but the court could grant immunity in exchange for testimony.

Of the 300 illegal felon votes, how many votes for Gregoire would be needed to keep the election for Gregoire (assuming felon votes were the only specific instances admitted as proof by the court and that these votes were set aside)?

a = number of felons for Gregoire
b = number of felons for Rossi

a + b = 300

X= total votes for Gregoire
Y= total votes for Rossi

X = Y +129

Delete the felon votes

(X-a)-(Y-b) >= 1 for Gregoire to keep a one vote lead,

some algebra yields:

b >= 86,

that is Gregoire side needs to show 86 or greater felons voted for Rossi.

The court is likely to place the burden on the Rossi side to show that deleted felon votes would wipe out Gregoire's 129 vote lead.

(X-a)-(Y-b) < 1 for Gregoire to lose by 1 vote or greater,

and the algebra shows that the Rossi side needs to show 215 or greater of the felon votes went for Gregoire, and again 5th amendments could render this more difficult.

So the election trial boils down to whether the case is accepted on the basis of enough errors or whether votes need to be counted from the witness stand.

For the 348 unverified provisional ballots, the same thing can be done. The provisional voters are known from the envelopes and they can be subpoenaed to court. Their privacy can be maintained by the court sealing their testimony. Their testimony would likely have to be voluntary. If enough volunteers testified under secrecy, a material impact of these votes could possibly be ascertained.

Lastly there are the military votes. If King County failed to meet a deadline for mailing out military absentee ballots, then it is possible for the court to ascertain the military vote.

What this leads to is rerunning omitted or erroneous parts of the governor's election in court. This can be done and by judging the mood of the electorate, donated funds to continue the election in court will not be a problem.

But the Rossi camp must stand up and rise to the challenge. It would be good not only for Washington State but also for the USA because many believe Hillary in 2008 will use all the same tactics and then some, that the democrats in King County used.

The Washington State election case should lead to national election reform if done right. Enough people are that fed up with it.

I think they will have to quantify enough of it to disallow the state supreme court from declaring that the evidence and proof are not specific enough.

It would be a good exercise to quantify how much discovery at a level of specific detail would be 'enough'.

Now is not the time to rest on an assumption that only errors in general will be sufficient. The democrats on the state supreme court will play hardball.

Hard work on accounting can deny the supreme dems the opportunity to declare the proof is too vague to uphold a decision by a lower court to set aside the election.

Hopefully Sharkansky and colleagues are crunching the numbers and feeding how many depositions of felons and unverified provisional ballot voters would be sufficient to deny an overturning of a lower court ruling based on vagueness.

I can see it coming.

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