Strategies in governor's contest now clearer
'Proportional analysis' may be key argument in court

By GREGORY ROBERTS
SEATTLE POST-INTELLIGENCER REPORTER    21 March 2005

Dead people voted. Some felons cast ballots although their rights were not restored. And then there were legal votes possibly not counted.

Who? How many? What difference does it make?

As Democrats and Republicans argue in the court of public opinion, the real answers are pending in Washington's courts of law, which will decide Republican Dino Rossi's challenge to the 129-vote victory by his opponent in the governor's race, Democrat Christine Gregoire.

And while GOP lawyers won't say exactly what they will argue before Chelan County Superior Court Judge John Bridges in the trial that could start late next month, possible strategies outlined so far include "proportional analysis" striking illegal votes in the same proportion as Gregoire received legal votes.

The court will decide if Gregoire's victory stands or at least the court will make the initial decision. It's widely expected the case will end up before the state Supreme Court, and both sides are maneuvering for an advantage there as well, where they will play under a different set of guidelines.

Bridges has not set a date for the trial to start. He's waiting for both sides to complete their research into the election.

"We're doing (legal) discovery to make sure they're not improperly or erroneously claiming that voters voted illegally," Democratic lawyer David McDonald said last week.

And Rossi spokeswoman Mary Lane said, "We are continuing to do research on felons. We're adding more to the list.

"Obviously, the more evidence we find of illegal voting, the stronger our case becomes."

  
 
Lane said the investigations may wrap up in time for a trial to begin in late April.

Trial courts, like the one Bridges sits on, are bound by previous appellate court decisions in interpreting the law. And it was a 1912 state Supreme Court ruling that Bridges cited when he rejected a key GOP argument in pretrial proceedings.

The Republicans maintained that if the number of illegal votes exceeded Gregoire's margin of victory, then the results should be set aside. But Bridges said no that the GOP needs to show that any illegal votes Gregoire received tipped the balance in the election.

It "may be problematical for petitioners (Rossi and the GOP) to ultimately prevail based on a theory or cause of illegal votes," the judge said in court Feb. 18.

But he didn't quite slam the door on the Republicans. He left them an opening by withholding a decision on how the GOP can go about proving that illegal votes gave Gregoire her win.

One way to show that would be to haul the potentially hundreds of felons and other illegal voters to the witness stand to testify about how they voted. Lane has emphatically rejected that idea, noting the enormous credibility issue, but that could change depending on how the trial unfolds. For that matter, the Democrats could start summoning felons as witnesses if they thought it helped their case.

But Republican lawyers have outlined other potential approaches in the pretrial proceedings.

One possible line of attack they have sketched out is what Lane calls proportional analysis. The idea is this: If Precinct A cast 60 percent of its votes for Gregoire and 40 percent for Rossi, but it turns out that 10 votes from there were illegal, the court can assume that six of those votes were for Gregoire and four for Rossi and deduct those amounts from their respective totals.

Given that most of the 1,000-plus supposed illegal votes the GOP has rounded up so far came from King County, where Gregoire beat Rossi by 58 percent to 40 percent (amounting to a 155,000-vote difference), that strategy holds lots of appeal for the Republicans. And that's one reason they're trying to dig up as many illegal votes as they can.

The Republicans have cited a number of cases from other states where courts have applied that kind of numerical calculation to illegal votes. McDonald says those out-of-state decisions aren't part of Washington case law, which is what will mainly guide Bridges.

But to hedge their bet, the Democrats are trying to ferret out votes on their own, either legal Gregoire votes that mistakenly were not counted or illegal Rossi votes that were. That could change the proportions that might be subject to analysis.

The GOP also floated another potential argument in the pretrial proceedings that drew on that 1912 decision.

Although the court did not set aside the election returns in the one precinct at the heart of the 1912 case, the justices said that might be warranted "under circumstances which demonstrate beyond all reasonable doubt that the disregard of the law (by elections officials) has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever" even if the officials are just negligent, and not guilty of fraud.

Again, King County looms large in the GOP's sights. Republicans have backed off charges of fraud there, but county elections officials have acknowledged that close to 660 provisional ballots were mistakenly tabulated on Election Day when voters or others fed them into counting machines in violation of the rule that says the voter's registration must be validated first. They've admitted to other errors, too.

Republican lawyers aren't saying what arguments they'll raise before Bridges. But they'll pretty much have to bring up all their points in his courtroom, before an appeal to the state Supreme Court, which generally cannot consider new evidence or arguments. So even if they think an argument may be a loser with Bridges, they'll want to get it on the trial record.

Once the case gets to the state Supreme Court, the justices will have more latitude than Bridges to interpret the law. They can revisit the 1912 decision and others, and come to a conclusion of their own.