No new election, judge says - Republicans still can take
governor’s race contest to trial
P. VOGEL; The News Tribune
Last updated: February 5th, 2005 07:41 AM
WENATCHEE – Republicans trying to overturn Democrat Christine Gregoire’s
129-vote victory in the governor’s race will have their day in court
but not the new election they want, a Chelan County judge ruled Friday.
Superior Court Judge John Bridges made a series of decisions laying
the groundwork for a trial in the Republican lawsuit seeking to overturn
Gregoire’s victory over Republican Dino Rossi.
Bridges dismissed the state’s 39 counties, many of which complained
the case was siphoning off scarce resources. And he set a high bar
for the type of evidence Republicans can use to try to convince him
to annul the election, though he said the decisions on evidence were
If he decides the election was so flawed he should set it aside, he
said he could not call for a new election, as Republicans requested
in their so-called “election contest” lawsuit. He agreed with Democrats’
arguments that the state’s contest election law and the state constitution
prohibit a new election for governor.
“The court doesn’t have that authority,” he said, acknowledging his
interpretation of the constitution tread new legal ground.
Bridges didn’t give either side all of what they wanted. But afterward,
lawyers representing Democrats and Republicans acted exuberant when
answering reporters’ questions, trying to spin the decisions as a
Rossi spokeswoman Lane called them “a pretty overwhelming win for
Gregoire, who’s said she’s not involved with the state party’s case,
issued a written statement: “Obviously, I am pleased. This is an important
step to allowing the state to move on.”
Though the judge acknowledged the Washington State Supreme Court likely
will get the final say on the contest, Bridges’ decisions will keep
the case in his court for the time being.
He rejected Democrats’ arguments that he should punt it immediately
to the Supreme Court or dismiss it on the grounds the Legislature
is the more appropriate arbiter of election contests.
Bridges did not immediately schedule the next hearing, telling lawyers
at the end of the daylong hearing he was tired and that they should
call him next week.
His decision barring the new election means that, at the end of the
case, if he agrees with Republicans, his options likely would be declaring
Rossi governor or making the governor’s office vacant, in which case
Lt. Gov. Brad Owen would step in.
The first option would set up a politically tricky situation for Rossi,
the former state Senate leader, who won two vote counts before Gregoire
won an unprecedented statewide hand recount.
When he announced last month that he would contest Gregoire’s win,
Rossi said he wouldn’t accept the governorship if a judge handed it
“The only way for us to get out of this problem is to have a revote,”
he said at the time. That still holds, his spokeswoman Mary Lane said
after the hearing.
Republicans originally sued elections officials in every county, as
well as Secretary of State Sam Reed, Speaker of the House Frank Chopp
and Owen for their roles in administering and certifying Gregoire’s
Friday, at the request of several counties including Pierce, Bridges
dismissed the counties.
“I can’t see where the counties’ involvement is helpful to the court,”
the judge said. In fact, he said, handling filings and hearing from
counties has become a burden in the case, which has produced mountains
Bridges left open the possibility that counties could remain parties
in the case if they desired. Pierce County probably won’t, said Dan
Hamilton, a lawyer from the county prosecutor’s office who attended
the hearing. Lawyers for King County said they weren’t sure if their
Rea Culwell, a deputy prosecutor for Benton County, said her county
probably wouldn’t opt in. But she said its auditor, a Republican,
would likely continue to cooperate with Republican requests for information.
The decision left the secretary of state as the main defendant in
the case. But the primary combatants in the saga remain backers of
Rossi and Gregoire, particularly the state Democratic Party, which
intervened in the contest lawsuit.
Though Bridges said, “I’m not ruling on the burden of proof,” he made
several rulings that could affect Republicans’ ability to make their
They have alleged hundreds of specific illegal votes, including 240
cast by felons, 44 cast on behalf of dead people and 16 by people
who voted more than once. But Bridges said that – expect for votes
by felons, those declared mentally incompetent and people who voted
more than once – Republicans must prove the votes were challenged
on or before Election Day to be considered illegal.
“Based on the record before the court, however, it is very difficult,
if not impossible at this stage, to know” whether the votes were challenged
like that, Bridges said.
And, to use the specific illegal votes to overturn the election, Bridges
said Republicans will have to trace them to the candidates and show
the winner would change after subtracting them.
Republicans have acknowledged the state’s ballot privacy laws would
make it difficult, if not impossible, to prove to which candidate
illegal votes went.
But Bridges also said Republicans could introduce evidence about errors
by election workers. Presumably these would include their allegations
that 437 provisional ballots were counted without first verifying
signatures. It’s less clear whether those would have to be traced
to specific candidates.
After the hearing, both sides said the rulings on evidence benefited
Republican lawyer Harry Korrell said he thinks Bridges’ ruling leaves
room for the Republicans to argue it’s unclear whether Gregoire got
the highest number of votes.
But the Democrats’ Kevin Hamilton said, “The ground rules just got
set in a way that is going to be very difficult for them to prevail.”
Kenneth P. Vogel: 360-754-6093