GOP gets court date in recount lawsuit

By ELIZABETH M. GILLESPIE
ASSOCIATED PRESS WRITER   22 November 2004

SEATTLE Two days after Republicans filed a lawsuit saying some ballots shouldn't be included in the recount of the governor's race, a judge told them they have to wait a week to make their arguments in court.

U.S. District Judge Ricardo Martinez scheduled the hearing for Nov. 30, two days before the state is set to certify results of the statewide recount triggered by Republican Dino Rossi's razor-thin victory margin.

Election officials say the ballots in question - those that machines couldn't read - are being tracked and could be subtracted if the judge rules in Republicans' favor.

After all counties reported their tallies last Wednesday, Rossi led Democrat Christine Gregoire by 261 votes out of some 2.8 million ballots cast. State law requires a machine recount when the margin is less than 2,000 votes.

The recount began in a handful of counties Saturday and is expected to wrap up Wednesday. As of Monday night, 24 counties had reported recount results, giving Rossi an extra 25 votes.

  
  
The state Republican party filed a lawsuit Saturday, arguing that ballots rejected by machines should be excluded from the recount because they have to be checked by hand - a process the GOP contended doesn't happen in counties that use punchcard ballots. State elections officials dispute that characterization.

"Applying counting standards in ed counties different from those in others violates the equal protection and due process protections of the U.S. and Washington constitutions and ultimately will deny Washington voters their fundamental right to vote," the lawsuit stated.

On Sunday, a federal judge denied the GOP's request that heavily Democratic King County be forced to stop hand-counting ballots that machines can't read.

Republicans singled out King County in the lawsuit but hoped the judge would rule hand-counting in all counties with optical scan machines unconstitutional, state GOP Party Chairman Chris Vance said.

Most of Washington's 39 counties use optical scanners, 14 use punchcards, and two use touch screens at the polls and optically scan absentee ballots, according to the secretary of state's office. In their lawsuit, Republicans noted that Rossi carried 11 of the 14 punchcard counties while Gregoire won a majority of the votes in King County.

State Elections Director Nick Handy disputed the GOP's argument that "undervotes" - ballots that doesn't register a vote for a particular candidate - are handled one way in optical-scan counties and a different way in punchcard counties.

"The methodology is different but the standard is the same," Handy said.

In each system, machines spit out undervote ballots, then an election staffer takes a close look to see if it's clear what the voter meant to do.

If the voter's intent is clear - say, an oval was circled instead of filled in or punched out - the election staffer fixes the ballot and sends it back through the machine. If it isn't clear, a canvassing board takes an even closer look to make a final determination about the vote.

In most cases, undervotes aren't mistakes - they just reflect that voters chose not to vote in a particular race.

In King County, a Gregoire stronghold, 710 out of some 22,000 undervotes were expected to be added to the county's total, King County elections spokeswoman Bobbie Egan said Monday night. That includes ballots with clear enough markings to be fixed and those on which a canvassing board could determine voters' intent.

However, any votes Gregoire picks up from those ballots could be offset because the same recount process is happening elsewhere in the state, including Republican-leaning counties where Rossi won handily.

In their lawsuit, Republicans alleged that ballots enhanced or duplicated after Election Day weren't being properly tracked, and therefore could not be re-examined for accuracy. Election officials said that wasn't true.

Democrats decried the GOP's effort.

"Stop trying to throw away people's votes!" Paul Berendt, chairman of Washington State Democrats, said in a statement issued before the party held a count-every-vote rally on Monday at King County's recount headquarters. "Our position is very simple: Count every vote and live with the results."

In a news conference an hour later at the same spot, Republicans accused the county of corrupting the process by altering ballots.

"They are manually enhancing the ballots, and there's no way that one can go back and determine the intent of the ballot of that voter," said Diane Tebelius, a GOP lawyer.

Dean Logan, King County elections director, insisted that ballots are only enhanced when doing so won't mask what the voter originally did. If that can't be done, he said, election workers fill out a separate ballot to duplicate the voter's markings so a machine can read them.

"If they feel it furthers their cause to take pot shots at our operations ... I want to stay beyond that," Logan said. "It's not about us. It's about the voters of King County and making sure every vote counts."