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.

Here is the letter I got from King County elections today:

Thank you for taking the time to voice your concerns and giving us the opportunity to respond. Please give us a moment of your time to consider the facts, and not simply the political rhetoric.

We are not aware of any evidence of fraud or misconduct parting the administration of King County's election or recount processes. The rate of accuracy in any election in Washington State is approximately 99.9 percent. In a race this close, there is little room for even the smallest amount of human error; however, when errors do occur, election officials refer to our longstanding laws in place to ensure the errors are corrected in an open, fair and transparent manner. The record shows King County has done just that.

The standard by which King County Elections conducted this election is the same standard used in every county in accordance with state law.

Unlike Florida in 2000, Washington State has explicit election laws in place when human errors or discrepancies in the election process occur. This provides county canvassing boards and election officials' structured and consistent guidance to correct mistakes (RCW 29A.60.210).

When staff became aware that a group of ballots were incorrectly categorized and rejected, we researched and corrected the error, a decision which was ultimately upheld by the Supreme Court (read the decision at http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=763992MAJ ).

We understand in a race this close, political rhetoric is at an all time high; however, it is important to step back from these accusations and look at the facts in a nonpartisan manner.

The facts show:

* All 39 counties added votes to their original election returns during the machine and manual recounts. This is expected. Five counties added ballots during the recount process, King County being one of those. The other four counties used the same state law to correct discrepancies and add previously uncounted ballots to their election returns. The additional 566 previously uncounted ballots included in the manual recount represents a .06% fraction of change in King County's election return.

* King County did not change the way it conducts elections along the way. In fact, the county resisted efforts by the political parties to change procedures. Twice the Washington State Supreme Court validated King County's election decisions in two separate cases filed by the State Democratic Party and the State Republican Party.

* King County military and overseas ballots were mailed on time and alternative faxed and e-mailed ballots were offered to voters whose ballots did not arrive in time. All voted ballots received prior to certification of the General Election were counted as long as the ballot was signed on or before November 2. In fact, only 16 ballots from the "military/overseas/Federal Write-in" grouping were received too late to be counted. For more information, please visit: http://www.metrokc.gov/elections/news/2005_01_05.htm

* The remaining difference in the number of votes cast versus the number of registrations credited with voting in the 2004 General Election is approximately 1,800 - an accuracy rate of 99.8% based on close to 900,000 ballots cast. This number is consistent with historic reconciliation rates for King County. In 2000 this number was 1,230.

* Election officials conduct every election in an open and transparent process and work together with the parties to hire poll workers and official party observers. To ensure questions were answered on time and in an efficient manner, election supervisors met with party observer representatives throughout the day and every night during the recount to address any questions or concerns.

* With nearly 900,000 ballots cast, King County issued and counted more ballots than almost any other jurisdiction in the country, second only to Los Angeles County, California.

We welcome your feedback and appreciate the opportunity to provide additional information in response to your concerns.

Thank you,

King County Records, Elections & Licensing Services Division
King County Admin. Bldg., #553
500 4th Avenue
Seattle, WA 98104

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