Supreme Court hears arguments in recount dispute

By Rebecca Cook

The Associated Press  22 December 2004

 OLYMPIA - The state Supreme Court today promised a speedy decision after hearing arguments over the fate of hundreds of mistakenly rejected ballots in Washington's incredibly close governor's race.

Republican Dino Rossi won the election by 261 votes, then won a machine recount by 42 votes out of 2.9 million ballots cast. Democrats paid for a hand recount, which currently has Rossi 49 votes ahead of Democrat Christine Gregoire.

But late Tuesday, Paul Berendt, state Democratic Party chairman, said preliminary results of the hand recount gave Gregoire an eight-vote edge and the lead for the first time.

This morning, the high court considered whether King County the state's largest and a stronghold for Gregoire should be allowed to add to the recount 723 ballots that weren't counted originally because of mistakes by county election workers.

State law says county canvassing boards can reconsider votes when there is "an apparent discrepancy or an inconsistency in the returns."

A Pierce County Superior Court judge on Friday granted the state Republican Party's motion for a temporary restraining order to stop King County from counting the newly discovered ballots. King County, the state Democratic Party and the secretary of state appealed that ruling.

Unless the Pierce County order is reversed, Democrats argued, voters will be disenfranchised through no fault of their own. Republicans countered that the real harm would be if the newly discovered ballots are allowed to be counted so long after the election.

Thomas Ahearne, a lawyer for the secretary of state's office, told justices Wednesday that state law allows canvassing boards to fix errors caused by election staff.

"The recount process is to secure a prompt, accurate closure to close elections," Ahearne said. "It serves the purpose of accuracy. Correcting errors by election officials makes the results more accurate."

Harry Korrell, a lawyer for the Republican Party, argued that state law does not grant King County the right to correct its mistake. "A recount is limited to a retabulation of the ballots that were already determined to be valid," Korrell said. 
   
David Burman, counsel for the Democrats, said he found the Republicans' effort to exclude hundreds of ballots from being counted "startling and disturbing."

"They are aware of voters who were entitled to vote in their view ... and at a time when that denial can be corrected they're holding back those voters' rights," Burman said.

After hearing about an hour and a half of arguments, the Chief Justice Gerry Alexander said the high court would discuss the case in chambers and rule "with all deliberate speed."

Whatever happens, today's drama may not end of the epic 2004 governor's election.

If Rossi loses, he may challenge the election in court Republicans are already preparing a possible legal challenge. Gregoire has promised to concede if she loses the recount. But on Tuesday her spokesman said if the Democrats lose the state Supreme Court case she may appeal to the state Legislature or challenge the election under state law.

If Gregoire wins the third tally, the state would have to pay back the Democratic Party, which fronted a $730,000 down payment for the hand recount.

Berendt said Tuesday that the stunning turnaround for Gregoire was based on party officials' analysis of the King Count hand recount. Republicans maintained the race was still too close to call.

King County planned to post the official results of its recount of nearly 900,000 ballots this afternoon.