All the Votes Fit to Count
Ukraine gets to revote. Why can't Washington state?

John Fund    Wall Street Journal   December 20, 2004 12:01 a.m. EST

If President Bush's margin of victory in Ohio had been 1,190 votes instead of 119,000 votes, it's a safe bet that state's 20 decisive electoral votes would still be locked in a bitter legal battle. In fact, the battle would likely resemble the one going on right now over who won Washington state's bizarrely close race for governor. The state is now concluding its third count of the 2.9 million ballots, and Republican Dino Rossi clings to a 50 vote lead over Democrat Christine Gregoire. King County, which includes liberal Seattle, is the only county left to report.

Amid all the wrangling over this election, almost all semblance of a fair system has been lost. It now looks like Washington's election will be decided by lawyers and a court, rather than by the voters. The result probably hinges on whether 923 King County absentee ballots that were rejected during the first two vote counts will be counted after all. A local judge has ruled that it is too late to inject the 923 ballots into the recount and that if they were valid votes they should have been counted in the first or second recounts. Democrats respond that the fault lies with King County clerks, who failed to take extra steps to verify the ballots, and not with the voters.

The state Supreme Court will in all likelihood settle the argument and thus determine who the winner is this coming week. Regardless of the outcome, there's now a growing number of people who believe the counting process in King County has been compromised. King County, after all, has a long history of incompetence in handling its elections and has now discovered "new" uncounted ballots nine times since Nov. 2and there's still time for another surprise or two.

Washington state's election nightmare began when Dino Rossi apparently won the election by about 3,000 votes. Then two days before the original vote count was certified, King County announced it had 10,000 more absentee ballots than it had previously estimated. Mr. Rossi's lead fell to less than 1,000 votes.

A local judge allowed Democratic Party officials to obtain the names and addresses of 929 people who had cast provisional ballots but were in danger of not being counted because of mismatching or missing signatures. Democratic officials then contacted voters and asked them who they had voted for in the race for governor. If the answer was Ms. Gregoire, the voter was allowed to correct his or her signature and thus have their ballot counted. Republicans belatedly began contacting their voters. The result was a net gain of some 400 votes for Ms. Gregoire. Mr. Rossi's lead fell to 261 votes.

At that point, the state began a mandatory machine recount of all ballots. But in King County the recount went beyond running the ballots through the counting machines. Officials there "enhanced" some 300 votes that had been rejected by the machines, in some cases altering them with white-out or filling in the ovals on the optical scan ballots. Again, these additional ballots benefited Ms. Gregoire. In 38 of the state's 39 counties, only 208 net votes were added to either Mr. Rossi or Ms. Gregoire in the recount. Then came King County, which represents 30% of the state's votes. Ms. Gregoire, who won 58% of the overall King County vote, harvested a net gain of 245 votesmore than the changes in the rest of the state for both candidates combined. At that point, with Mr. Rossi holding only a 42-vote lead, Democrats put up the money to pay for a third recount that would be conducted by hand, a process that most election observers, including those in charge of King County, view as less accurate than a machine count.

It didn't take long for new ballots to be discovered. On Dec. 7, more than a month after the election, King County said it had found 573 absentee ballots which had been rejected because they lacked or had improper signatures. A couple of days later, another 22 ballots were found hidden in voting machines that had been put into storage. None of these ballots had been stored in sealed and secured boxes. Election officials are usually leery of counting votes that haven't been kept under constant lock and key.

Nonetheless, the Democratic controlled King County canvassing board rejected the Republican county prosecutor's advice not to count the 573 ballots. Then someone noticed that the list of disputed ballots did not include any voters whose names began with A or B. Another treasure hunt turned up 150 more votes that had been mistakenly put into storage. On Friday, Stephanie Arend, a local judge in neighboring Pierce County, stepped in and blocked the counting of all 923 new ballots. She said state law clearly stipulated that a recount was only supposed to count ballots already ruled valid, not add any more ballots to the mix.

On top of all this, the actual hand tabulation of the rest of the ballots in King County also saw a change in procedures midway through the count last week. Officials announced that they were overturning the policy of not counting ballots that had ovals filled in for both candidates ("over votes") and now would send these ballots to the canvassing board for final review. Officials said this represented no change in the rules, but the fact is that ballots are now being treated differently depending at what point in the recount they were examined.

The state Supreme Court will have to sift through this tangled web and reach a final decision quickly. The inauguration of a new governor is scheduled for Jan. 12. The dilemma the court faces is clear. The 923 disputed new voters were rejected by King County officials using a level of verification and scrutiny that they had agreed on in advance. Now county officials want to add votes into the final recount that were not included in the first two counts because they have belatedly found that the ballots would have been declared valid if the clerks had gone further and taken additional verification steps.

 

Legally, there is a strong argument for not adding new ballots into the already compromised recount process. But perception also matters. Should Mr. Rossi win because some ballots aren't counted, he'll take office under a cloud of "fraud" as Democrats claim that more people wanted Ms. Gregoire to win. Their argument will carry some weight.

Former Secretary of State Ralph Munro, a moderate Republican, says confidence in the election system has been so damaged that the only way to restore it may be to consider holding a new election in February. King County has now added ballots into its count so many times that almost no one other than the lawyers involved can easily explain the chain of events.

There is no provision in Washington state law for holding a new election. It would have to be ordered by the state Supreme Court or by a special session of the legislature. But now is the time to raise the issue because no one knows for sure which candidate will come out ahead this week in the final count. Sam Reed, the state's secretary of state, says a rerun of the election is eminently doable and notes that a small town in Washington did rerun an election after it was discovered that some people who were ineligible had been allowed to cast ballots.

There is also a precedent for a statewide rerun of an election in recent times. In 1974, New Hampshire Democrat John Durkin ran for the U.S. Senate and very narrowly lost. A recount overturned the original result and gave Mr. Durkin a 10-vote lead over Republican Louis Wyman. But then the state's Ballot Law Commission recounted the ballots and certified Mr. Wyman the winner by two votes. Mr. Durkin had no real evidence of fraud, but he contested the election anyway. The Democratic-controlled Senate sided with him and refused to honor the state's certification. The seat remained vacant for seven months. The debate spanned 100 hours over a month with 35 inconclusive roll-call votes. The 1975 impasse ended only when Mr. Durkin agreed to a special election. He won that race, but then lost a bid for a second term in 1980.

 

If leaders of both parties could agree that the November election has been hopelessly compromised, public pressure for a clarifying rematch would build. It would be highly irregular, but so too is the fact that whoever wins the third count of votes would govern under a cloud in which their legitimacy would be questioned. Let's hope the public will also demand a thorough housecleaning of Washington state's election laws, which imprudently allow 65% of its voters to cast troublesome absentee ballots.

Washington state's predicament is also a warning flare for the rest of the country about how sloppy our election procedures still are. In most states we are just as unable to handle a photo-finish election as we were when the Bush v. Gore legal fight occurred in 2000; It's time to redouble our efforts to make our elections something the rest of the world can't snicker at.