Democrats dust off old rule

Some say constitutional provision would let Legislature pick governor

KENNETH P. VOGEL; The Tacoma News Tribune
Last d: December 10th, 2004 08:43 AM (PST)
 Even if Republican Dino Rossi wins the hand recount of the state?s extraordinary governor?s race, a never-before-used provision in the state constitution could allow the Democrat-controlled Legislature to hand the election to Democrat Christine Gregoire.

Experts are unsure how to interpret the provision. But the state Democratic Party says it gives Democrats the ability to contest the results of the election before the Legislature.

The Legislature would hold a trial of sorts, like an impeachment hearing, with lawmakers voting on the final outcome, according to a Democratic Party lawyer.

That scenario would seem to favor Gregoire, because Democrats will hold a 26-23 advantage in the Senate and a 55-43 edge in the House when the Legislature convenes Jan. 10.

But some Democratic lawmakers say that if Rossi wins the hand recount ? by law, the last ? they would support him, even if pressured to support the party in any legislative hearing.

?I don?t know where others are at, but I don?t think anyone will endorse someone who didn?t win the popular vote,? said state Rep. Dennis Flannigan (D-Tacoma).

Sen. Jim Kastama (D-Puyallup) and Rep. Steve Kirby (D-Tacoma) echoed Flannigan?s statements.

But Larry Sabato, director of the Center for Politics at the University of Virginia, predicted politics would prevail.

Party leaders ?would allow some Democrats to vote ?no? ? the ones in marginal districts,? he said. ?But there would be just enough votes to put her in.?

That could prompt a backlash against Democratic lawmakers in the 2006 elections, he said.

The state Democratic Party is focusing on the hand recount, which it paid $730,000 to initiate after Rossi won the initial vote count and first recount. It is also busy with a lawsuit it filed with the state Supreme Court to dictate the terms of the second recount, said state Party spokeswoman Kirstin Brost.

?And we?re not going to think beyond that,? she said.

    
But state Republican Party Chairman Chris Vance said the lawsuit could set the stage for a legislative challenge.

?This is not academic,? he said. ?This is one of the scenarios that worries me.?

?don?t change the rules!?

Republican lawyers will fight any move to have the Legislature decide the election, Vance said.

But if it does get to that point, he said, Republicans are well-positioned to use public opinion as a weapon.

Lawmakers could expect to face a torrent of pressure from constituents and partisans on both sides, Sabato said.

Respondents in two recent polls narrowly favored Gregoire conceding. But both sides are trying to rally support.

Democrats are framing their efforts on Gregoire?s behalf as a fight to count every vote. Republicans, meanwhile, are portraying Gregoire as trying to steal the election and have printed signs reading, ?Don?t change the rules!?

Rossi, a real estate investor and former state Senate leader who was an underdog in the race, beat Gregoire, the three-term attorney general, by 261 votes out of more than 2.8 million in the initial count.

That triggered an automatic statewide recount done by machine that Rossi won by 42 votes. That margin is believed to be the closest statewide race in modern U.S. political history.

The state Democratic Party requested the unprecedented statewide hand recount. It should conclude by Christmas unless prolonged by a state Supreme Court ruling.

dueling interpretations

The state Democratic Party is challenging specific aspects of the election in a lawsuit that the state Supreme Court is scheduled to hear Monday. And neither side would rule out suing to invalidate the election if the recount goes to the other candidate.

But Democratic Party lawyer David Burman said in a letter to Secretary of State Sam Reed that, after the final recount, the courts would no longer be the final arbiter of any dispute.

?If there is to be an election contest as to this office, the constitution requires that it be decided by the Legislature, not the Judiciary, and that would drag into the early months of next year,? he wrote.

The Legislature?s constitutional role in certifying election results is largely ceremonial, with two exceptions. If there?s a tie, the winner would be decided by a joint House-Senate vote.

And if there?s a ?contested election,? the section of the constitution to which Burman?s letter refers states it ?shall be decided by the Legislature in such manner as shall be determined by law.?

Burman, in an interview, said ?the language of the constitution seems pretty clear that (lawmakers) are the ones that have to decide the issue.?

But several experts said there?s no consensus on how to interpret that language, which refers specifically to statewide executive offices.

They include Jim Pharris, an assistant attorney general; John Pearson, deputy director of the secretary of state?s elections division; Seattle lawyer Hugh Spitzer, who co-wrote the definitive book on the state constitution and is defending Reed?s office against the Democrats? lawsuit; and Sen. Kastama, the incoming chairman of the state Senate committee that oversees elections.

?That sentence in the constitution has been looked at by lawyers on both sides pretty hard,? Pharris said.

?It is really uncharted territory,? said Kastama, whose staff has been studying the issue. The state law on contesting elections deals specifically with the process for contesting an election in court, not before the Legislature, he said.

?I suspect that was put into the constitution as a safeguard against some real appearance of malfeasance or some real apparent discrepancy,? he said, adding that the governor?s race doesn?t appear to rise to that level.

?last-ditch? effort?

Burman said that in order to contest an election, the challenger would likely have to prove that vote-counting or election administration errors could have reversed the result if corrected.

The party?s lawsuit identifies several ways in which it alleges voters were disenfranchised, particularly in Gregoire?s base of King County. And state Party Chairman Paul Berendt has asserted that the disenfranchised voters in King County would have gone for Gregoire.

But party spokeswoman Brost said ?I?ve talked with everybody. No one wants to take this to the Legislature.?

Though Vance said his lawyers believe the constitution would prohibit it, he charged ?that?s what (Democrats) are preparing for. The last-ditch, burn the system down, hard-core strategy from Paul Berendt is to try to take this to the floor of the House and the Senate.?