Third time may be a charm for Gregoire
She leads by 10 as court allows 735 county ballots

By CHRIS McGANN
SEATTLE POST-INTELLIGENCER CAPITOL CORRESPONDENT  23 December 2004

OLYMPIA Riding two huge wins yesterday, Democrat Christine Gregoire appears to have undone Republican Dino Rossi's victory in the closest governor's race in U.S. history.

In a unanimous decision, the state Supreme Court ruled that 735 disputed ballots in King County may be reviewed by the county canvassing board and counted if they're valid.

Separately, Gregoire took a 10-vote lead in the statewide hand recount of 2.8 million votes after King County posted unofficial returns. She gained 59 votes, erasing Rossi's previous 49-vote lead, to take the lead for the first time since the initial statewide results were announced last month.
 

The 735 disputed ballots were not included in yesterday's totals. Gregoire won with 57 percent of the vote in King County, which gives Democrats reason to believe her lead will expand when the disputed ballots are considered today.

However, neither side sees that as a foregone conclusion.

"It is too early to declare victory," Gregoire said last night to a small crowd of supporters in Seattle. "Although we are ahead right now, there are still hundreds of votes left to be counted. ... Once King County is able to fix their mistakes, count the votes and certify the results, we will know who the next governor of the state of Washington really is."
   
  Stunned Republicans vowed to seek out Rossi votes in the other 38 counties where election workers also may have mistakenly rejected valid votes. With few options left, Rossi spokeswoman Mary Lane said Republicans would go to canvassing boards statewide and ask them to "to review their decisions and to consider these ballots."

"It's inconceivable that the court can change the rules for a group of voters in King County and not offer the same opportunity to the rest of the voters in the state," Lane said. "We will put to the test Gregoire's sincerity when she said count every vote."

Republicans plan to raise questions about military voters they say were disenfranchised and other people who have signed affidavits saying they voted and their ballots were wrongfully rejected.

Rossi did not make himself available to the news media yesterday.

State Republican Party Chairman Chris Vance said yesterday's high court ruling fundamentally changes the rules for elections, but Secretary of State Sam Reed said the ruling upheld election procedures that have been in place for decades.

Vance said: "They wiped out any deadlines for when canvassing boards can make decisions. I guess canvassing boards now can recanvass, redecide, reinvent, do whatever they need to do. ... So, we will fight on. ... The canvassing board can change their mind."

Reed, a Republican, said Vance is wrong.

"The counties don't have the authority now to do that," Reed said. "The statute says specifically that you have to do this by the day of certification in the county. They have now certified, and they're through."

Only King County has yet to officially certify hand count results.
 

Reed said Republicans would have to get a court order or contest the election to follow through on what they've proposed. He will formally end the recount by amending the certification with the final results today.

Vance said it's too early to say whether the party plans to contest the election or demand a second election.

County election officials said they too were skeptical that Republicans could ask them to reconsider their previous decisions.

Tim Likness, elections supervisor for Clark County, said he hasn't heard from the GOP. He said the elections office has not identified any ballots that were not counted because of worker error.

"As far as we're concerned, that process is complete," Likness said.

If Gregoire prevails, it will be the first time in state history that a gubernatorial race has been overturned through a recount. Rossi won the original tally by 261 votes and the mandatory machine recount by 42.

The latest hand recount result differed from those of the machine recount in part because King County elections officials were able to discern voter intent on 45 light or partially marked ballots that machines had passed over as "under votes," ballots in which the governor's race was left blank.

Voter intent was likewise determined for some "over votes," those the machines rejected because more than one candidate was marked for governor.

In yesterday's arguments before the state Supreme Court, Republican lawyers said the rules for recounts are clear and only votes that already have been validated by county canvassing boards may be retabulated. Therefore, they said, the 735 King County ballots should not be added to the hand recount.

The court disagreed and said state law makes clear that King County can proceed. Although they said a recount is a retabulation, not a recanvass, the justices added that the definition was subject to another provision:

"Whenever the canvassing board finds that there is an apparent discrepancy or an inconsistency in the returns of a primary or election, the board may recanvass the ballots or voting devices in any precincts of the county."

The justices wrote that the evidence indicated that King County had discovered a correctable mistake.
   
 King County officials say they discovered during the third and final governor's tally that the ballots had mistakenly been misfiled and rejected.

The justices wrote in their decision: "When election workers found no matching signatures for these ballots in the county's electronic voter files, the ballots were apparently set aside to check for signatures elsewhere, including original paper registration forms. But this was never done. Instead, the ballots were described to the canvassing board and not counted in the returns as votes."

Republican attorney Harry Korell told justices that allowing the disputed votes in King County to be tallied would almost certainly lead to a disputed result and a contested election.

And he said by ruling in the Democrat's favor justices would be putting Rossi at an unfair disadvantage for a contested election.

"There is certainly a huge difference between being declared the winner of an election and defending that and being declared the loser of an election and having to then bring an election contest," Korell said.

"To allow the county to go ahead and count those ballots will put us in a position that we would not otherwise have been in. That simply can't be corrected by any remedy at law."

But contesting the election may be the only choice Rossi and the Republicans have if the new King County votes uphold Gregoire's slender lead.

State law prohibits the ballots from being counted a fourth time.

Kevin Hamilton is a lawyer at the Seattle firm of Perkins Coie who worked with Sen. Maria Cantwell, D-Wash., during the recount of her 2000 race against Slade Gorton.

He said according to the state constitution, Republicans must go to the Legislature to contest the election. Democrats control both the state House and Senate, making that an unlikely choice for the Republicans.

Officials at the Secretary of State's Office said that there are some legal provisions for challenging an election in court.

Under state law, any registered voter in Washington can contest the results of an election in court. Such cases must be based on several grounds identified by the law, such as misconduct on the part of elections workers; the ineligibility of a candidate to hold office; or if illegal votes were cast.

The inauguration is scheduled for Jan. 12. Any registered voter has until Jan. 20 to file suit challenging the results of the contest.

The King County Canvassing Board will meet this morning to decide how many of the 735 ballots in question are valid and should be counted.

Elections staff will verify voters' signatures, then separate ballots from the return and security envelopes and count them.

King County elections officials plan to certify the results of the hand recount this afternoon.

"This process will take time; however, democracy is worth the wait," King County Elections Director Dean Logan said. "I assure voters this process will be done in the same open and transparent process with which we have conducted this entire election."