Election issue: No decision soon
By Associated Press
Feb 14, 2005 -

OLYMPIA, Wash. (AP) The legal challenge to the governor's election won't be resolved until June at the earliest, a former Supreme Court justice says.

Republican Dino Rossi's challenge to the 129-vote election victory of Democratic Gov. Christine Gregoire is heading toward a trial, possibly sometime next month. The state Supreme Court will make the ultimate decision and former Supreme Court Justice Phil Talmadge says Rossi has a chance, however slim, of winning.

"It would be unusual to unseat a sitting governor," said Talmadge, a liberal Democrat who ran against Gregoire before ping out due to health concerns. "On the other hand, they have the responsibility of dealing with this very serious situation of election law ... The court won't be swayed by the immediate politics of the moment."

Talmadge said he can't imagine the Supreme Court hearing arguments on the case until June, and that's assuming the speediest possible schedule.

Conventional wisdom says the longer Gregoire stays in office, the more legitimacy she gains and the less people will demand a new election. Of course, conventional wisdom also had Gregoire winning in a landslide.

Gregoire, formerly a three-term attorney general, lost the first count by 261 votes and lost a machine recount by 42 votes to Rossi, a real estate agent and former state senator. A final, hand recount of 2.9 million ballots made Gregoire the winner by 129 votes.

Rossi sued the state under the election challenge law, and is asking for a new election.

Rossi said in an interview this week he believes people are willing to wait for a resolution.

"People want a chance to vote again, is the bottom line," he said.

If Rossi wins his challenge still a long shot the state heads into uncharted territory. The court's options would be to nullify the election and call for a special election; to nullify the election and leave it to the Legislature to decide what's next; to nullify the election and simply let the constitutional provisions for filling a vacant office take over; or to install Rossi as governor.

Rossi has said he would resign and call for a new election if a judge appointed him governor. Chelan County Superior Court Judge John Bridges, who's hearing the case, ruled that the courts don't have the power to order a "revote," as Rossi had sought. But the Supreme Court could reverse his ruling.

Whatever happens, a Rossi win in court would mean at least a few months of Lieutenant Gov. Brad Owen filling in as governor. Rossi said that would be fine.

"The sky is not going to fall," Rossi said. "I think he could do the job, sign the bills and make that work. I don't see a problem with that that's the way it's set up."

The timing of a new election is a subject of legal wrangling. The state constitution says the governor must be elected "at the same time and place of voting as for the members of the legislature."

Democrats say the earliest possible date for a gubernatorial election would be November of 2006, when the state House and a half the state Senate are up for re-election.

But Republicans point out that one legislator, Rep. Dean Takko of Longview, will stand for election this November, because he was appointed to fill an opening created when Democrat Brian Hatfield resigned.

What kind of election would it be? A runoff between Rossi and Gregoire would be simplest, but state law and the constitution are mum on that option.

Assistant Attorney General Jeffrey Even, representing Secretary of State Sam Reed in the election challenge, said he believes a new election for governor would have to start at the beginning with a filing week and a primary.

Talmadge said he might consider running against Gregoire again if there's a new primary. Anyone could run.

Before the state gets close to a new election, though, Rossi will have to prove his case in court no easy feat.

"It's clear that more election contests have been rejected than have been successful," Bridges said at the last court hearing. "The reason, of course, is that there are some well-recognized presumptions, if not policy reasons, why elections should not be overturned. For instance, do we as voters and as constituents of candidates want to engage in what one judge referred to as 'seasons of discontent' commencing the moment after the polls close on Election Day?"

But Bridges denied Democrats' attempts to close off avenues to the Republicans by limiting the evidence or the proof they could bring to court. The big debate between the two sides is what, exactly, Rossi has to prove to get the election results thrown out.

Rossi and his attorneys say it's enough to show that illegal votes put the 129-vote margin of victory in doubt. The Democrats say Rossi will have to prove whether the illegal votes went for Gregoire or Rossi, and then subtract proven illegal votes from both their totals, and then show that Rossi would have actually won without the illegal votes.

The state's election challenge law is not crystal clear. Bridges indicated there may be different standards for illegal votes cast by felons and dead people, as opposed to illegal votes that were counted because of errors by election workers.

Talmadge said he doesn't believe state law will require Republicans to match every illegal vote with a candidate, despite Democrats' arguments that it should be done that way.

"It's almost impossible to prove how any one of those ballots were cast," Talmadge said. "I have to believe it would be something that doesn't require proof of an elector's vote."

Talmadge said Republicans will probably be allowed to do some sort of statistical analysis to show how many of the illegal votes likely went for Gregoire or Rossi. That's the standard of proof the secretary of state's office is backing as well, Even said.

Both attorneys said Republicans will have to prove that illegal votes changed the outcome of the election, and that will be a tough sell in the absence of obvious fraud or skullduggery.

Meanwhile, Gregoire is trying her best to forge ahead as governor in Olympia while downplaying the election challenge unfolding in Wenatchee.

"I'm not looking over my shoulder," she said last week. "I don't know what to look at, to be honest."