Reed says county has right to fix error, tally 735 ballots

By David Postman

Seattle Times    21 December 2004

OLYMPIA ? If the state Supreme Court stops King County from counting 735 disputed ballots in the governor's race, it will invalidate recount totals in other counties, according to court papers filed yesterday by the Secretary of State's Office.

Attorneys for Secretary of State Sam Reed say counties across the state made errors that were corrected by canvassing boards, which resulted in new votes being counted.

Attorney Thomas Ahearne argues that if the court now rules that King County can't correct errors during a recount, other counties will have to comb through results in both the completed machine recount and the hand recount to pick out any votes that they had added when correcting errors. The hand recount has been completed in all but King County.

Reed maintains that King County has the same right as every other county to correct errors during the recount. Rulings on the validity of ballots are made by local canvassing boards, three-person panels in each of 39 counties. If the court rules that King County can't count the 735 disputed ballots, Reed says, that means no county should have been able to reconsider ballots after the initial count.

Republicans have sued to stop King County from counting the 735 ballots. They worry that the ballots could tip the election to Democrat Christine Gregoire, who trailed Republican Dino Rossi in the initial count and the machine recount.

"In a situation in which everyone knows how close the margin of victory was, to allow the King County Canvassing Board to reopen and presumably change some of its prior decision about whether particular ballots are valid is to invite mischief," Republicans said in papers filed with the Supreme Court yesterday.

Rossi won the Nov. 2 election by 261 votes, which triggered an automatic statewide recount. Rossi's lead ped to 42 votes after the first recount, prompting Democrats to request a second recount by hand. Rossi has gained seven votes in the latest tally, bringing his lead to 49.

Discretionary power

The disputed King County ballots were discovered last week. County election workers had rejected them because they erroneously believed there were no matching signatures to verify the ballots. Now the officials want to include them as part of the hand recount.

On Friday, Pierce County Superior Court Judge Stephanie Arend granted a Republican request for a temporary order preventing King County from including the ballots in the hand recount. Democrats, King County and Reed have appealed that to the Supreme Court, which will consider the matter tomorrow.

Playing a big role in the arguments will be a unanimous ruling last week by the Supreme Court against a Democratic Party lawsuit that asked the court to order all counties to reconsider the thousands of ballots that had been rejected in earlier counts.

During oral arguments, attorneys for Reed, King County, the Republican Party and Rossi ? all teamed up to oppose the Democratic request ? said that counties have discretionary power to recanvass ballots and that a statewide order was not necessary if problems arose.

But when the court issued its order, it didn't make specific mention of that discretionary power.

Arend read the Supreme Court order to mean that no reconsideration of previously rejected ballots could occur. Reed's attorneys say she misread it.

Papers filed yesterday by Reed's office make the unusual request for the court to clarify its decision in the Democrats' case. Attorneys want the court to make clear that in denying the Democratic request for a statewide mandated recanvassing, it recognizes that counties already have discretionary power to recanvass if problems are found.

If the Supreme Court instead says Arend read its order correctly, Reed's attorneys wrote, "then the recount results certified in this election's machine recount are not correct, and the results certified by the 38 counties which have been reported to date in the hand recount will have to be returned so each county's canvassing board can attempt to pull from their previously certified totals all of the error corrections attributable to the recanvassing of ed ballots."

Corrections elsewhere

State Director of Elections Nick Handy filed a declaration with the Supreme Court yesterday detailing corrected errors in several counties that resulted in changed vote tallies, either in the machine recount or the current hand recount.

The Whatcom County canvassing board decided to include in the manual recount nine provisional ballots that didn't get counted in either of the first two tallies, according to Handy's declaration. Seven were ballots that had been mistakenly put in a pile of empty envelopes and not discovered until after the first recount. The other two were valid provisional ballots that were mailed from other counties but didn't arrive in time to be included in the first two counts.

Debbie Adelstein, Whatcom County's deputy auditor, said the ballots were included in the manual recount but kept separate from the rest of the ballots.

But at least one county that added new ballots will not be able to go back and undo that decision. During the first recount, Grant County discovered and tallied 52 ballots that hadn't been included in the initial count. County elections manager Faith Anderson said that before those ballots could be tallied on election night, someone had mistakenly put them in a pile of already-counted ballots.

Anderson said the issue of whether to count the ballots was never taken to the canvassing board and those ballots were not kept separate from the rest of the ballots.

Law includes "safety valve"

Secretary of State Reed says the law on recanvassing boards' authority has "safety-valve provisions" giving local election officials the right to reconsider ballots if they learn of an error.

Reed wants the court to clarify its earlier decision to make clear that the law does not allow for "the wholesale recanvassing of all ballots in a recount" but "does grant each county's canvassing board the discretion to correct prior errors."

In addition to Reed's request that the Supreme Court clarify its earlier decision, the court will hear arguments tomorrow morning on whether to uphold Arend's decision to stop King County from counting the disputed ballots.

Arend's decision amounts to "extraordinary interference by the Pierce County Superior Court," Democrats said in their appeal brief filed yesterday.

Democrats argue that King County has the obligation to correct its errors, even if the law didn't include a "safety-valve" provision.

Republicans said if there are errors, the proper way to address them is to wait until after the recount, when Democrats could bring a "contested election" charge before a judge.

Republicans argue that if Arend's decision is not upheld, the Supreme Court should delay any action until a trial court can take testimony.