No new election, judge says - Republicans still can take governor’s race contest to trial

KENNETH 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 “exceedingly difficult.”

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 clear victory.

Rossi spokeswoman Lane called them “a pretty overwhelming win for us.”

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 to him.

“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 win.

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 of paperwork.

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 county would.

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 case.

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 them.

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



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