Law vague on Legislature's role

BRAD SHANNON THE OLYMPIAN   16 December 2004

Some state legislators dread the idea, but some lawyers say it's possible the Washington Legislature could have the last word on who becomes the state's next governor. 
 
The state Constitution carries a little- understood phrase that says "contested elections ... shall be decided by the Legislature in such manner as shall be determined by law."

But state law on elections is murky on what would happen in such a situation. So if the question of who won the closest governor's race in history does fall into state lawmakers' hands, "It's unclear how they could proceed," said Marty Lovinger, one of two lawyers who advise the state Senate.

In fact, it's unclear whether lawmakers could invalidate an election, declare a winner or call for a new election, said Mike Hoover, the Senate's other counsel.

"I think those are all reasonable possibilities," Hoover said this week. "I think even if it happened, the court would be the final arbiter."

In any case, such a challenge of election results is a ways off because a statewide hand recount of ballots is under way.

The recount will determine whether Republican Gov.-elect Dino Rossi's 42-vote margin of victory over Attorney General Christine Gregoire in the first recount will stand.

The laborious hand counting of nearly 2.9 million ballots statewide is expected to continue until the middle of next week.

"It would be insane for legislators to think of doing that," House Majority Leader Lynn Kessler, D-Hoquiam, said flatly Wednesday. "If she (Gregoire) did win the recount, I think it would be Republicans who would ask us to step in. Us being Democrats, it puts us in kind of an awkward position."

Nonetheless, the state Democratic Party raised the specter of a contested election as well as threatened legal action in a Dec. 1 letter to the Secretary of State's Office.

The party eventually filed that legal action, which went this week before the state Supreme Court in a failed bid to have previously rejected ballots reconsidered; the court denied the request.

"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 inevitably drag into the early months of next year," Democratic lawyer David Burman wrote.

Lawyers in the Attorney General's Office agree the Constitution's direction is clear but say the specifics of how lawmakers should proceed is hard to discern.

"I don't know how they'd handle that. In the judicial world, that's easy: You file a lawsuit, and you go from there," said Jeff Evan, an assistant attorney general who advises the Secretary of State's Office on election-related issues. "It's kind of hard to get your arms around this one."

State Democrats have said they have no intention of trying to get a Democratic-controlled Legislature to throw the election to Gregoire. Gregoire herself has said the ongoing recount should be the final decider.

"I talked to everybody about this. Everybody is pretty firm they don't want to see this happen," Democratic spokeswoman Kirstin Brost said this week. "Chris Gregoire said she will abide by the results of the hand count."

State Republican Party Chairman Chris Vance has said he thinks Democrats will move to have the Legislature intervene if the recount favors Rossi. The GOP controls the Senate by one vote today; however, Democrats assume a majority in the Senate and expand their edge in the House to 12 votes in January.

On the other hand, Republicans could contest the election if Gregoire wins, and Rossi's campaign spokeswoman, Mary Lane, didn't rule out that possibility Wednesday.

Lane said that if an ongoing hand recount of ballots flips the result to Gregoire, anything is possible especially with discoveries this week that more than 570 ballots were improperly excluded from earlier counts and that 22 additional ballots surfaced late Tuesday night.

"If there's enough funny business in King County and the results of the first two counts end up being overturned, we are reserving all our options," Lane said in a telephone interview.

As of Wednesday, Rossi led by roughly 100 votes over Gregoire. Thurston County finished its share of recounting Wednesday, adding 15 more votes to Gregoire's total and 13 to Rossi's.

What state law says

Article 3, Section 4, of the Washington state Constitution spells out in very general terms what is supposed to happen with election results that are reported by the Secretary of State's Office to the House speaker, who then declares the results to both houses of the Legislature:

"The person having the highest number of votes shall be declared duly elected, and a certificate thereof shall be given to such person, signed by the presiding officers of both houses; but if any two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses.

"Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law."

What that "manner determined by law" really means is a subject of much conjecture.