Governor race could wind up in court
Justices could decide by Friday if they'll intervene

By CHRIS McGANN
SEATTLE POST-INTELLIGENCER   07 December 2004

OLYMPIA The state Supreme Court could decide as early as Friday whether it will intervene in the second recount of the governor's race, ordered yesterday by Secretary of State Sam Reed.

Legal historians believe such a move could be the first time in Washington history that the high court involved itself in deciding a statewide election.

On Friday, state Democrats filed a lawsuit insisting that Reed must instruct county election officials to review all ballots previously deemed invalid.

The same day, Democrats made a $730,000 down payment for a hand recount of the more than 2.8 million votes cast in this year's gubernatorial election.

They hope to overcome Gov.-elect Dino Rossi's 42-vote victory in the first recount, which would give Democrat Christine Gregoire the keys to the governor's mansion.

Democrats contend that election boards have no consistent standard for disqualifying ballots. The varying standard essentially disenfranchised some voters based on the particular county they cast their ballot in, Democrats say.

For example, some counties vigorously checked the authenticity of voter signatures on absentee ballots while other counties did no signature check whatsoever, they said.

"What we are looking for is a standard that will hold statewide, so every legal vote is counted," said Kirstin Brost, spokeswoman for the state Democrats.

In King County, 2,478 absentee and provisional ballots were not counted because they were not signed or the signature didn't match the voter's registration file, according to King County Elections spokeswoman Bobbie Egan.
Egan and Reed have said votes in King County were counted as consistent with state law and past practices.

Republican party leaders and some legal historians contend that such an order would obliterate the elections process because determinations and results issued by local elections boards would be forever left open to challenge. Elections would never truly be over, they say.

In addition, Republicans say that changing the criteria for determining which votes are valid is tantamount to changing the rules in the middle of a game. The secretary of state, not the court, administers election law, the say.

"Now that the counties are going ahead with a statewide hand recount, we're asking that it be done by the rules," said Rossi's spokeswoman Mary Lane. "Christine Gregoire has filed a lawsuit to try to change the recount rules midway through the process ... Dino doesn't oppose a statewide hand recount, as long as it is done fairly and legitimately."

Brost said "Republicans would rather keep it broken for their benefit than fix it to preserve the integrity of the process.

"They want us to continue with a broken system to keep their guy ahead."

State Supreme Court Chief Justice Gerry Alexander said he knew of no other incident exactly like this.

"It's unprecedented," Alexander said.

He would not tip his hand as whether the court should itself into the election.

"Courts don't go out looking for legal issues to rule on," he said. But if the case merits a new interpretation of the state constitution or election law, "We want to do our duty," Alexander said.

The parties must have all filings in by this afternoon, and oral arguments will be scheduled as soon as possible, he said. And although most high court opinions are not issued for months, Alexander said that in this case the ruling would be expedited.

Alexander would not comment about whether the decision should be deferred to Reed, the state's chief election officer.

Seattle lawyer Jeffrey Grant, who is also an instructor at the University of Washington Law School, said the court has been reluctant to get involved in purely political controversies, especially those that would decide the outcome of a specific election.

"But the legal landscape is changing," Grant said. "Bush v. Gore is perhaps the most famous turning point. I'm not sure that it's so much the courts that changed but elections of the recent past have become more partisan and close it's those factors that have brought parties to the courts."

But Grant said the Republican contention that Reed should be the point person for elections is "a great argument."

He said the court most likely would make a broad-brush statement.

"What they don't want to do, is be down there counting the votes themselves," Grant said.

"It's just not their job. They're likely to say, 'With all due respect, don't bother me with those kinds of details.' "

Washington's high court will probably want to avoid what happened in Florida where there was the feeling that the U.S. Supreme Count wanted to decide the election, he said.

"They are going to want to avoid the impression they bent over backwards to pick the winner," Grant said.

The current case does not challenge the laws themselves, Grant said.

"What's being challenged is the way the standards are being applied. The current litigation is limited in some ways to the details of this election," he said.

As it stands, each county has some discretion about how the statues are applied.

"The law has flexibility, but it creates a certain amount of ambiguity," Grant said.

"Usually it doesn't really matter but when it comes down to a Metro-bus sized pool of people ... it does."

THE HAND RECOUNT

How Washington's statewide hand recount for governor will work:

THE COUNTERS: Three-person teams will do the work, with two people counting the ballots and one recording the votes. Many counties will use temporary workers recommended by the Republican and Democratic parties. Each team will have two people checking each ballot, with the third person acting as the teller.

THE PUBLIC: is open to observers and members of the public, just as the original vote counting and the first recount were.

THE TIMELINE: The recount should be finished by Dec. 23.

THE CONTROVERSY: The big question is whether the recount will include "new" votes ballots that were not counted the first two times, for various reasons. The state Democratic Party is asking the state Supreme Court for the broader vote tally.

IS IT EVER FINAL? This is the final recount allowed by state law, although court action could complicate things and a challenged election or a tie could wind up in the Legislature. Inauguration is scheduled for Jan. 12.