Justices consider recount rules

By Jerry Cornfield
Everett Herald     14 December 2004

OLYMPIA - The state Supreme Court on Monday considered the breadth of the state's recount law and whether it requires thousands of rejected ballots in the governor's race be given a second look in the hand tally now under way.

This is the first-ever hand recount of a statewide office and thus the first time Washington's high court had been asked to determine on the rules for vote counting.

Democratic Party lawyers, who filed the lawsuit, argued that the intent of the law is for a full accounting of every vote cast in the Nov. 2 general election. Attorneys for the Secretary of State and Republican Party countered the law is limited to ensuring that a mandated machine recount Nov. 30 got it right.

No decision had been issued by late Monday. A ruling is expected soon as more than half the state's 39 counties are finished counting votes to determine if Republican Dino Rossi or Democrat Christine Gregoire becomes governor.

Neither of them attended Monday's 70-minute court hearing.

State Democratic Party lawyer David Burman led off by warning justices that thousands of votes "are on the verge of being erroneously invalidated" because errors cited by canvassing boards for their disqualification can be corrected.

"We are not suggesting all (their) decisions have to be thrown out. We are suggesting where errors are alleged ... they should revisit them," Burman said. "There is not much time but there is enough time."

Burman asked the court to order that unopened provisional and absentee ballots that had been rejected be reexamined. He wants voters who cast them to be given a chance to legally remedy the problem and have the ballot counted.

Thomas Ahearne, special counsel hired by the Secretary of State's Office, told justices the law is clear that canvassing board decisions are not open for review. He said the law is limited to a retabulation of the machine recount. What Democrats seek, he said, is a "recanvass" that starts the counting process all over.

"The place to change the recount statute is the Legislature not the court. The time to change the recount statute is before the election, not now," he said.

"They seek an unprecedented change in the middle of the process," said Mark Braden, attorney for the state Republican Party and Rossi. He said Gregoire and the Democrats can raise their objections if they contest the final results.

Braden questioned why Democrats are challenging procedures while the machine recount was occurring. Burman said the problems did not surface until after that process ended.

Eight justices conducted the afternoon hearing. Justice Richard Sanders was absent.

It began hours after King County election officials admitted finding 561 ballots that were wrongly rejected. That county's canvassing board will meet Wednesday to consider including them in their totals.

Both sides used the news to bolster their arguments. Democrats said it proved that reviewing all rejected ballots is needed to uncover similar situations. On the other side, lawyers said these are not rejected ballots getting a second chance. These are ones that should have been counted, and the law allows for that to occur.

While legal forces tangled inside the Temple of Justice, supporters of Rossi and Gregoire stood outside on the steps in chilly temperatures and periodic spits of rain s.

Rossi backers wielded signs such as "Concede Christine" and "Keep Your Lawyers Off This Election" while Gregoire supporters held "Count Every Vote" signs.

No problems were reported.

If the Supreme Court sides with the Democratic Party, the focus of this electoral fight will shift to the canvassing board in each of the 39 counties.

Each panel is made up of the county auditor, chief prosecuting attorney and chairman of the county council - all elected positions - or one of their designees. In Snohomish County, the members are Council Chairman John Koster, County Auditor Bob Terwilliger and Rick Robertson, assistant chief deputy prosecutor in the civil division and the designee of Prosecuting Attorney Janice Ellis.

The Democratic Party claims 32,398 ballots were disqualified statewide. The Snohomish County Canvassing Board disqualified 261 mail ballots of the 200,737 cast. Of those, 153 were not signed by the voter, 68 were signed by someone other than the voter and 40 had a signature that did not match the voter's registration card.