Democrats wish and hope as judge rules

The news media generally got it wrong yesterday when they tried to describe the content and effect of the judge’s rulings in the contested gubernatorial election, but by this morning they seem to be coming around to an understanding of the actual effect of the rulings.

Regarding the Democrats’ argument that the Republicans must prove for whom illegal or invalid votes were cast, the judge ruled in favor of the Republicans (at least, according to the Seattle Post-Intelligencer):

The judge also rejected an argument by Democrats that the case should be dismissed because Republicans had not shown specifically that any of the hundreds of votes they've alleged were illegally cast in the case accounted for Gregoire's margin of victory.

Bridges ruled that, at least in this pre-trial stage of the case, Republicans need not show such proof.

In other words, the judge has not said that the petitioners must prove for whom any questioned votes were cast.

Regarding the Democrats’ claim that the judge has ruled out the option of electing a new governor to fill a vacancy in the office in the event that the petitioners prevail, the judge did not rule out an election in November (again, according to the Post-Intelligencer):

The only way to attain a legitimate election, Republicans have consistently argued, would be a revote -- a new election between the two candidates. They specifically called for a revote in their lawsuit filed in court last month.

But with the judge's ruling yesterday, that's not going to happen -- at least not one ordered by Bridges.

He cited state law and constitutional provisions saying that even if the election was tossed out and Gregoire removed from office, such a vacancy for governor could only be filled during the next general election in which voters are allowed to vote for the state's executive office.

The idea that the next general election is the earliest time at which the vacancy could be filled by a vote of the citizens was discussed earlier, and won’t be repeated here. Clearly, though, the judge did not rule against having the voters choose a new governor in the event that the election is set aside.

There is one statute that should be specifically noted in light of the assertion made by the Democrats’ lawyers that the judge must choose either Rossi or Gregoire as the new governor:

RCW 29A.68.050
Witnesses to attend -- Hearing of contest -- Judgment.
The clerk shall issue subpoenas for witnesses in such contested election....

The court shall meet at the time and place designated to determine such contested election by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable, and may dismiss the proceedings if the statement of the cause or causes of contest is insufficient, or for want of prosecution. After hearing the proofs and allegations of the parties, the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.

If in any such case it shall appear that another person than the one returned has the highest number of legal votes, said court shall declare such person duly elected. [Emphasis added.]

Note the word “if” at the beginning of the last sentence – the court shall declare a winner, if the evidence persuades the court that a winner can be determined.

The court is obviously not required to declare a winner, but is required either to confirm or annul the election.

Meanwhile, David Postman of The Seattle Times is clinging to the Democrats’ version of the judge’s ruling about the eventual need to prove for whom the votes were cast:

A major issue that appeared less than settled yesterday was whether Republicans would have to show that each illegal vote they find was cast for Gregoire and that they can find enough to erase her 129-vote victory margin.

Democrats argue that that's the standard set in law. Republicans have said they only need to show there were enough illegal votes to make the true results of the election unknown.

Bridges said that at least at this point in the case, it is "sufficient to state generally" that there are enough illegal votes to cast doubt on the true outcome of the election.

While it would naturally be better to have a transcript or videotape of the judge’s actual statements from the bench, it seems from a comparison of this morning’s reports in the two major Seattle newspapers that the “PI” is hewing closer to what the judge said – and the Times is treating the out-of-court statements of the Democrats’ lawyers as reliable indicators of the effect of the judge’s rulings.

This part of the report by the Times seems to hint at the truth of the matter:

Bridges said in Chelan County Superior Court that allegations in the lawsuit filed by Republican candidate Dino Rossi and Republican voters, if proved at trial, would be sufficient to overturn the election. And he denied a Democratic motion to limit any challenge to issues of fraud and illegal votes, saying misconduct or neglect by election officials would also be sufficient grounds for setting aside the election.

The election statutes do indeed make it very hard to prevail on the basis of “illegal votes.” Prior to trial, RCW 29A.68.100 requires the petitioner to provide a list of the names of the people who allegedly cast “illegal votes,” and no evidence about any other “illegal votes” can be introduced. Under RCW 29A.68.110 the court is supposed to determine whether it “appears” that the “illegal votes” were cast for one candidate or the other, and the court isn’t supposed to set aside the election based on “illegal votes” unless it “appears” that taking away the “illegal votes” cast for the apparent winner would erase the apparent margin of victory.

It seems obvious that the legislature has made it difficult, if not practically impossible, to prevail in an election contest based solely on “illegal votes.”

Probably, that is why the supreme court in both Foulkes v. Hays and Gold Bar Citizens v. Whalen didn’t include within the term “illegal votes” any votes which don’t have to be included. Otherwise, there would be a clear miscarriage of justice in cases like Foulkes when the ballots were altered by someone after they were cast by the voters.

The Republicans aren’t contesting this election based solely on “illegal votes,” as recognized by the judge when he stated that “misconduct or neglect by election officials would also be sufficient grounds for setting aside the election.”

If the evidence shows that votes were counted on far more ballots than there were eligible voters who participated in the election, then it is obvious that some neglect or misconduct by election officials occurred. Somehow, ballots that were not legal got into the ballot boxes and the votes on those ballots were included in the returns. Ballot boxes aren’t stuffed innocently, nor are they stuffed without at least some neglect on the part of the people charged with the responsibility for ensuring the integrity of our elections.

For those ballots which were not legally cast by any known eligible voter, there is no requirement to prove for whom the votes were cast.

All things considered, it seems the citizens who want a duly elected person to be in the governor’s office will have to wait until November 2005 to choose that person – assuming the evidence is found to be sufficient to annul the election and void the certificate of election that put Gregoire in office before anyone could know if she is the duly elected governor.

The people who simply want Gregoire to be in office, no matter what, will get their wish for a little while longer.