Rossi's fight could enter federal realm
Lawyer cites equal protection elements of Bush-Gore case

BRAD SHANNON THE OLYMPIAN 09 January 2005

The battle may not be over, even if Washington Democrats beat back Republican efforts in state court to invalidate Christine Gregoire's 129-vote victory in the race for governor. 
 
It's quite possible that GOP candidate Dino Rossi's legal team or another sympathetic group could take action in the U.S. Supreme Court, citing the equal protection elements of the 2000 Bush v. Gore case.

That's the view of Mark Braden, a Washington, D.C.-based lawyer playing a role in Rossi's election challenge, which was filed Friday in Chelan County Superior Court.

"We do have the potential for a piece of federal litigation as we speak now," Braden said in a telephone interview Saturday. "There is clearly a federal equal protection claim. ... It's clear the election process in King County was, in many ways, different than the election process in other counties."

However, Braden said, he thinks they have a strong case in state court and there is no plan at this point to move into federal court.

At the same time, there could be other groups considering a federal challenge independent of Rossi, he said.

University of Washington political science professor David Olson shares Braden's assessment of the federal option.

Olson noted that the core of the Bush v. Gore case was the equal protection finding that voters should have their ballots similarly handled.

Although that issue is raised in the Chelan County case, Rossi's formal court challenge takes more direct aim at sloppiness in election practices, which led to 348 provisional ballots being counted without adequate validation in King County, and other allegations that votes were recorded from dead people and felons at least one of whom voted for Rossi, according to newspaper reports.

"A dead person can't vote, not even for me. ... You just can't do that," Rossi said Friday at a news conference announcing his legal action to overturn the election and win another vote.

Many voters say they are bothered by the apparent discrepancies in voting, although it appears some are confused by what really did happen with votes in King County. Secretary of State Sam Reed, a Republican, has said that his efforts to get facts to the public "rumor control," as he put it have been difficult.

But others, like state employee Jeanne Andreasson, who distrusts the election results and favors Rossi, are well-informed. Andreasson pointed out Saturday that King County's discrepancy between voter names and votes cast was about 0.1 percent and not the 0.01 percent claimed by King County, based on the county's figures.

And she was bothered by the fact that the gap is 1,217 in King County and apparently zero in Thurston County.

"I have no confidence in this" election result, Andreasson said. "I just think there are too many problems with the whole load of issues with dead people on the rolls and two people voting (under the same name), the provisional ballot fiasco. ..."

Even so, Democrats say evidence in the case is too weak to help Rossi under the law.

"Based on the evidence the Republicans have, we would not have contested the election if we lost because there was not enough evidence" to merit a new election, said Paul Berendt, state Democratic Party chairman.

On the other hand, Berendt said that if a King County canvassing board had chosen not to reconsider 735 votes that were mistakenly rejected due to election- worker errors, "we would have contested the election."

Braden, who has been involved in eight statewide recount cases across the country and was in on the New Mexico recount in the 2000 presidential race, said a ruling by a King County Superior Court judge opened the door to irregularity in the treatment of provisional ballots, which is a clear federal issue.

He said Judge Dean Lum let state Democrats have access to a list of provisional voters whose ballots had signatures that had been questioned, and activists were able to solicit affidavits from the voters in person to verify that the ballot signatures were valid.

Reed rolled out a package of proposed changes to the election system last week. Among them is the prevention of third parties from handling the voter affidavits. At the same time, Reed said, he'd like to require that counties like King be required to notify voters of provisional ballots with signature questions just as absentee voters now are notified.

Democrats say the Republicans should concede the election, and they began a radio campaign with departing Gov. Gary Locke urging voters to accept the election results.

"At what point do they accept defeat graciously?" asked state Democratic spokeswoman Lisa Cohen, when told of the federal court option. "I guess we're beyond gracious. But at what point do they accept defeat? ... It's win at any cost.''