561 valid King County ballots still uncounted
Rossi still leads, but erroneously rejected votes may aid Gregoire

By CHRIS McGANN   14 December 2004
SEATTLE POST-INTELLIGENCER CAPITOL CORRESPONDENT

OLYMPIA Five hundred sixty-one valid absentee ballots that had been erroneously rejected have been discovered in heavily Democratic King County, buoying Christine Gregoire's hopes of prevailing in a hand recount of the governor's race.
King County Elections Director Dean Logan announced the find yesterday. Hours later, lawyers for the county, the state and Republican Gov.-elect Dino Rossi appeared before the state Supreme Court to argue that counties should not be required to reinspect roughly 3,000 rejected ballots for the hand recount that began last week.

State Democrats filed a lawsuit seeking a ballot reinspection the same day they agreed to pay for a statewide hand recount of the governor's race. They hope additional scrutiny of previously uncounted ballots will give Gregoire enough new votes to reverse Rossi's victory.
   

Rossi won the first count by 261 votes. That set in motion a mandatory mechanical recount of more than 2.8 million votes, which Rossi won by 42 votes.

Logan said the newly discovered 561 mistakenly rejected ballots would likely be counted.

"We take full responsibility," said Logan, who took over a department that had been criticized in previous elections for the late mailing of absentee ballots. "An error has been made that has prevented valid ballots from being counted. We need to correct the error."

But Logan said the county would not reconsider nearly 2,000 other absentee and provisional ballots that were ruled invalid unless ordered to do so by the Supreme Court.

The Republicans told the high court that Washington state law makes a clear distinction between recounting and recanvassing (the process by which ballots are validated).

"The place to change their recount statute is the Legislature, not here," Thomas Ahearne, a lawyer for the Republicans, told the court. "The time to change the recount statute is before the election, not in the middle of the ongoing recount."

While Republicans said the suit is a case of the losing party trying to change the rules to win, Democrats said yesterday's reevaluation in King County bolstered their case.

David Burman, the Democrats' attorney, told the justices that election boards accepted and rejected votes based on a standard that varied greatly county to county.

"Some counties will discretionarily correct, others will not," Burman said. "There has to be more consistency."

If the new votes break for Gregoire by 57 percent as they did countywide, she would pick up 79 new votes.

Up to now, Rossi has been slowly expanding his margin of victory as hand recount results from the state's smaller counties continue to pour in. Last night, his margin had grown to 88 votes, with 24 counties reporting.

Until yesterday, the 561 rejected votes would not have been added to the recount.

But Logan said correcting an administrative error does not mean that the other rejected ballots should be rechecked.

"That would be a dangerous precedent," Logan said.

Ahearne, the lawyer for the Republicans, said finding the mistake in King County only shows that the system in place works. But, he said, the counties must be allowed to stop reviewing their findings.

"We have deadlines for a reason," he said. "We have deadlines so we can have closure for elections. ... If we were always looking for reasons to extend the deadline, we wouldn't have orderly elections and we wouldn't have closure to elections."

Ahearne said the votes were found within the statutory deadline for the hand recount. Had the problem been discovered in February, for example, it would and should be too late to overturn the election, he said.

King County Councilman Larry Phillips brought the problem to Logan's attention Sunday, when he discovered his ballot had been ruled invalid.

Apparently election workers found no match when they checked signatures of Phillips and 560 other King County voters against an electronic database. But instead of setting the ballots aside to be checked against the actual paper registration forms, as they should have been, the ballots were simply filed as invalid.

State Elections Director Nick Handy said current law gives King County the discretion to review the 561 ballots in question.

"Matters that have already been decided by county canvassing boards should stand," Handy said.

But counties can review disqualified ballots in cases such as this one involving an obvious inconsistency or irregularity.

"This would be the classic example of an irregularity," Handy said. "People were registered to vote and there was an administrative error. The county can go back and correct that."

Other people, including 26-year-old Miles Erickson, who attended the hearing yesterday, said the counties should be forced to go even further.

Erickson moved from Seattle to Birch Bay near Bellingham in January. He registered as an absentee voter in April.

But Erickson did not receive his mail-in ballot, so on Nov. 2 he went to a polling place and filled out a provisional ballot.

He said Whatcom County election officials mistakenly mailed his ballot to King County, where his voter registration had been canceled. But instead of bringing the problem to his attention, Erickson said, his vote was simply not counted.

"I am angry," Erickson said. "I understand that mistakes happen, but the idea that my vote can be thrown out by mistake and that it can be done without my knowledge and it takes a court order to fix it is just wrong," he said.

During the hearing, Justice Bobbe Bridge asked Burman how elections would reach finality if individuals such as Erickson could bring suit for the right to vote.

"Is every voter supposed to take a lawyer with them when they go to vote?" Bridge asked.

"Perhaps they should," Burman said.

The state Supreme Court could issue a ruling on the case as early as today.