Votes tallied for governor, but what's next is unclear

By David Postman

Seattle Times   26 December 2004

While Democrat Christine Gregoire won the third ? and presumably, final ? tally in the governor's race by 130 votes, no one is sure yet whether the election really is over.

And no one is sure about what happens next.

Even Gregoire isn't quite claiming victory yet. Supporters of Republican Dino Rossi, who was leading after both the initial vote count and the first recount, are exploring their options for challenging the outcome of the just-concluded hand recount.

There is a massive gulf separating the perceptions of Gregoire and Rossi.

Gregoire says the state's election system showed itself to be a model for the world and an inspiration to children everywhere. (When she was trailing, her Democratic supporters were much less impressed: They have filed lawsuits against election officials and said Rossi was trying to steal the election.)

Rossi says the election was not clean and that there is no legitimate governor-elect.

The counting of nearly 3 million votes three times uncovered a series of mistakes, by both voters and ballot counters.

The final hand recount showed that 4,018 votes of validly registered state residents had been missed in the original tally from the Nov. 2 election.

A handful of ballots were found left in machines, hundreds more were discovered in misplaced trays, and many more didn't get counted for a variety of reasons. For example, an optical-scanning machine might have failed to read votes that weren't marked properly. Additional ballots were found in nearly all of the 39 counties during the final recount.

Here are some of the many questions remaining about what is being called the closest governor's race in the nation's history: 
  
Q: Was this expected to be such a tight race?

A: No. Gregoire was the favorite throughout the campaign. She had more money than Rossi and had won three previous statewide races for attorney general. Moreover, no Republican has been elected governor since 1980.

Q: Why was the race so close?

A: Gregoire ran an uninspired campaign, cautious to the point of paralysis at some points. State Democratic Party Chairman Paul Berendt said on election night that Gregoire just never connected with voters in a personal way.

Rossi, meanwhile, proved an affable and accomplished campaigner. While both candidates portrayed themselves as outsiders, that worked better for Rossi and his seven-year legislative career than for Gregoire and her 12-year reign as attorney general and a long career in government.

Q: How come Gregoire was allowed to ask for a hand recount after trailing in the initial tally and the initial machine recount, but Rossi can't ask for one now that he trails?

A: The law allows for only three counts. The initial tally from the Nov. 2 election showed Rossi the winner by 261 votes. Because the margin was less than 2,000, it triggered an automatic machine recount.

That recount showed Rossi ahead by 42 votes.

At that point, the law allowed the Democrat to make a formal request to the secretary of state for a hand recount. There is no provision in law for any more counts.

Q: But didn't Rossi win two out of three?

A: It's not a playoff series. If you need a sports metaphor, consider the recounts as an instant replay of a disputed call. The point was to look for errors in the initial count.

Q: Were mistakes found?

A: Yes, lots. King County is the most-obvious example, with 735 ballots that workers mistakenly rejected. But every county in the state found votes in at least one of the recounts that had been missed in the original count. In all, there were an additional 4,018 more votes counted in the hand recount than in the original tally.

Q: Who paid for the recount?

A: Democrats had to put up more than $700,000 to pay for the hand recount. However, state law says they'll now get the money back because the recount reversed the result. So the bill will be paid by taxpayers.

Q: What can Rossi and the Republicans do now?

A: Their first move is to try to get county auditors to reconsider previously rejected ballots, as King County did. Most auditors say they won't do that because they have already certified the results of the hand recount.

Q: How come King County could do it?

A: Until Wednesday it had been unclear how much authority counties had to reconsider rejected ballots during the recount. A unanimous state Supreme Court ruling that day made it quite clear that county canvassing boards have discretionary power to reconsider ballots. But by the time the court ruled, all but King County had certified their results.

Q: Can Republicans go back to court?

A: Litigation is always an option. Republicans could go to state court to challenge the county auditors' refusal to reconsider rejected ballots.

A federal lawsuit is also possible. Republicans could claim that since King County went further in reconsidering ballots than any of the other 38 counties, it meant a vote in King County was more likely to be counted than a vote elsewhere in the state.

They could argue that is a violation of the U.S. Constitution's equal-protection clause, as set out in the lawsuit that ended the 2000 Florida recount of the presidential race, Bush v. Gore.

The U.S. Supreme Court found "counties used varying standards to determine what was a legal vote."

"The majority's fundamental holding in Bush v. Gore is that a voter should have an equal right and an equal probability to have his or her vote counted," said Nathaniel Persily, a professor and election-law expert at the University of Pennsylvania Law School.

"In the event that the standards applied to the recount are vague and easily manipulated, particularly to suit a partisan interest, then you can expect the loser of this battle to raise Bush v. Gore."

Q: Haven't some people called for a new election?

A: Yes. Some Republican supporters of Rossi, notably former Secretary of State Ralph Munro, have called for a new election because the current results are so muddled. They worry that voters won't have confidence that a true winner was ed.

Q: Is a new election possible?

A: Republicans would have to go to court to contest the election. State law says a judge has the right to "set aside" an election because of "error, wrongful act, or neglect" in the conduct of the election.

Q: How would that be proven?

A: Essentially, a judge would put the election on trial. Republicans could present evidence and witnesses to make their case that the election was flawed.

The judge could confirm the election, make Rossi the winner instead, or annul the election.

Q: What happens if the election is nullified?

A: No one seems to know for sure. The law does not specifically say the judge can call for a new election, just that he or she could set aside the current one.

State Elections Director Nick Handy said his reading of the law is that a judge's action to set aside the Rossi-Gregoire election would create a vacancy in the governor's office. That would call for a special election, which would be open to any valid candidates, not necessarily just Rossi and Gregoire.

The state Supreme Court, which is likely to eventually rule on any contested-election case, could set a runoff election between Gregoire and Rossi.

Q: Who can contest an election?

A: Any registered voter. The law says the challenge can be made for several reasons, including misconduct by an election worker or the counting of "illegal votes."

That's a broad term that can mean many things, including more than one vote cast by a voter or a vote cast by a felon whose voting rights were suspended.

Q: Has there ever been an election set aside under the contested-election law?

A: Yes, though not in a statewide race. In 1974 there was an Adams County Commission election nullified by a Superior Court judge, a decision later upheld by the state Supreme Court, over concerns about ballot security. The loser in the race argued that security was lax and presented evidence that ballots had been tampered with.

The Supreme Court ruled "that the irregularity was such that the actual result of the voting could not be ascertained and a new election should be held."