The Republicans Blow It
The Democrats won the final recount for governor by playing the game better. Now the GOP's best and maybe only hope is litigation.

by George Howland Jr.   Seattle Weekly   29 December 2004

The nasty fight for the Washington governor's mansion is not likely to end anytime soon. Election tabulations are not noble searches for truth. They are poorly refereed contests fought by partisan warriors in power suits, and until both the Democrats and the Republicans declare an end to combat, the fighting will continue. At the moment, Democrats are on top, but Republicans refuse to surrender, and who can blame them? Their candidate won the first two tabulations, by 261 votes out of more than 2.8 million in the regular count in the Nov. 2 election and by 42 votes in a machine recount.

But on Thursday, Dec. 23, Democrat Christine Gregoire won the third and supposedly final tally, a recount by hand, beating Republican Dino Rossi by 130 votes. This turnaround wasn't happenstance. The Democrats played a brilliant endgame, aggressively hunting for votes that had been incorrectly disqualified, while the GOP focused on trying to ferret out fraud that wasn't evident. Now the GOP's best hope is that the courts will nullify the election because the tabulation was so chaotic.

On Monday, Dec. 27, state Republican Party Chair Chris Vance called a news conference to repeat Republican demands that election officials across the state reconsider ballots that the GOP claims were mistakenly disqualified. (Their sudden ardor to "count every vote" is as hilarious as it is predictable. To complete the role reversal, Democrats now have adopted the Republicans' earlier line that the election is over and the loser should concede.) The GOP effort to have ballots reconsidered seems likely to fail, however, because Republican Secretary of State Sam Reed, the state's top elections official, says it would be illegal for counties that have certified the hand recount results to reconsider rejected ballots. But this election has been so weird that anything could happen. Reed was planning to certify Gregoire as the winner on Thursday, Dec. 30. At that point, the Republicans' only recourse would be in court. They have until Jan. 22 to file a lawsuit contesting the election.

At the press conference, Vance and others presented evidence that they said showed that the election was conducted in an illegal and sloppy fashion. They didn't claim fraud outright; they argued that incompetence and inconsistency led to chaos. Vance says Republicans have not decided whether to seek in court to overturn the election results. "You don't challenge an election lightly," he says. While he got that right, he wouldn't admit that the Democrats had outfoxed the GOP.

For decades, Democratic electioneering philosophy has been turnout?making sure their voters participate in the election. Republicans have traditionally preferred to see a low overall turnout because conventional wisdom says their core supporters are among the most reliable voters, while Democrats are favored among people less likely to vote regularly. The GOP, meanwhile, has a history of worrying about cheating.

Everyone had voted already in this governor's race, but the Democrats' strategy during the two recounts was still about turnout, though an odd form of it: tracking down voters who had had their ballots incorrectly disqualified. True to their inclinations, Republicans looked for irregularities, a strategy that earned them few new votes.

After the first count, Republican Rossi led by 261, a margin so small that it triggered an automatic recount. State Democratic Party Chair Paul Berendt knew exactly what to do. A gangly, low-key political veteran, Berendt understood that our election process is far from perfect. In any election, there are a certain number of ballots that are disqualified incorrectly. In particular, Berendt made sure Democrats searched aggressively in King County for ballots that had been mistakenly tossed out, for three reasons: It is Washington's biggest county, representing roughly a third of the statewide vote; it is a liberal Democratic stronghold; and it has been plagued with election problems that a series of directors, including the latest, Dean Logan, have been unable to solve. There were bound to be ballots there that could be turned into more votes for Gregoire.

The first big bunch of disqualified votes that Democrats went after were those cast with provisional ballots, by voters who showed up at the wrong polling place. Washington law allows such ballots to be sent to the proper county and, if verified, counted. At first, King County refused to release the names of voters who had cast provisional ballots that had been rejected for apparent signature problems. The Democrats went to court, and on Nov. 12, King County Superior Court Judge Dean Lum ordered the county's Elections Division to make the names of "provisional" voters available to both parties. Democrats immediately identified provisional voters who likely voted for Gregoire, went door-to-door collecting affidavits from them, and turned the affidavits in to King County, resulting in hundreds of legal ballots being counted. Republicans, meanwhile, got on the phone and called likely GOP provisional voters, asking them to go to the county election office and verify their identity. Guess who got more votes in that round of the fight. Republican Vance says there's a perfectly good reason the GOP didn't go door-to-door at first, although eventually they caught on. "We didn't think that was legal," he says. Democrats clearly understood better how to get more votes.

On Dec. 1, at the end of the first recount, done by machines, Rossi's lead had shrunk, from 261 to 42. But he still was the winner. The Democratic Party, however, in a week's time raised the $700,000 necessary to pay, as required by law, for a third and final recount?and Berendt requested that it be done by hand, not by machine. "This is going to be an ignition point for a national upheaval about elections and how they are conducted," says Berendt. "People do not trust the machines. People want to see this done by hand."

As workers gathered in groups of three across the state to painstakingly examine each of nearly 3 million ballots, Democrats kept up the search for more votes. This time, they went all the way to the state Supreme Court to request that all ballots cast be re-examined for the manual recount?even those that had already been rejected by election officials.

On Dec. 14, the Democrats lost that lawsuit. The Supreme Court unanimously ruled that the third recount should not include ballots that had been correctly rejected by elections officials in previous tabulations. The court also referenced a state law that spells out the role that canvassing boards play if incorrectly rejected ballots are brought to their attention. Think of the canvassing boards as the official referees in the electoral process. Each of the state's 39 counties has a board made up of a representative of the county's legislative body, the county prosecutor's office, and the county auditor or elections chief.

While the Democrats lost that second lawsuit, their continuing effort to find more votes hit the jackpot. While preparing for the lawsuit, Democrats went over the list of rejected voters and prepared to contact each one individually?again, aggressively seeking their voters. King County Council Chair Larry Phillips found his own name on the list and demanded to know why his ballot had been disqualified. King County Elections Director Logan determined that Phillips' ballot and some 500 others had been rejected by election workers who had failed to do everything they should have to verify the qualifications of the voters. Logan, being the stand-up guy that he is, admitted the county's mistake and asked the canvassing board to correct it.

The next day, after inquiries from election observers and The Seattle Times, Logan found another 200 or so ballots from the same incorrectly disqualified bunch. At this point, it was clear that despite Logan's best efforts, King County was having another election meltdown.

The Republican Party sued to stop King County's canvassing board from considering the newly discovered votes?735 ballots in all. On Dec. 22, the state Supreme Court ruled, again unanimously, that canvassing boards may reconsider ballots that were incorrectly rejected in previous counts.

Even without the reconsidered ballots, Gregoire won the hand recount, and the governorship, by 10 votes, affirming Berendt's faith in people over machines. Later, the King County Canvassing Board allowed 566 of the 735 newfound ballots to be valid, and Gregoire's lead increased to 130.

While Republicans were resisting Democratic efforts to reconsider previously disqualified King County ballots, surely they knew there was a possibility, even a likelihood, that the party would lose the fight to exclude them. So here's another tactical mistake: The GOP should have tried to stop county election certification statewide until the rules were clarified. Instead, 38 of the state's 39 counties finished the third and final count and certified the results before King County's outcome was clear. Now, Secretary of State Reed says, the counties, most of them Republican-leaning, are finished?they may not reopen the recount process, even if there are improperly disqualified ballots out there.

So Democrats found additional votes before the game was over, but Republicans did not. "How can you anticipate that things are going to happen?" Vance asks. "The election is not supposed to be about who is better at gaming the system." Unfortunately for Vance, that is precisely what the election is about at this point. The process is so imperfect, and the 2004 governor's race is so close, that we will never really know who won. All we can be certain of is who is declared the victor.