GOP expected to file suit over Gregoire's win

By David Postman

Seattle Times chief political reporter  07 January 2005

 OLYMPIA ? The Republican court challenge to Christine Gregoire's election as governor, expected to be filed today, will center on mishandled provisional ballots in King County and lingering questions about why the county shows more votes counted than people voting on Nov. 2.

That's Republican candidate Dino Rossi's best bet for getting a judge to overturn Gregoire's 129-vote victory, said former U.S. Sen. Slade Gorton. Gorton, an attorney who lost his Senate seat in a close 2000 race, is not part of Rossi's legal team but is a close adviser to the candidate and has been consulted about the imminent legal challenge.

"That will be the primary ground of any election contest," Gorton said yesterday. "And I've got to say I think it's not only a valid argument, but a compelling argument."

The lawsuit also will likely include allegations of votes by dead people and felons, and multiple votes by the same voter. But those issues, while garnering much attention among Rossi supporters in recent days, will be secondary.

"If you're bringing one of these things, I suppose you throw everything in," Gorton said.

Although it's not definite that the suit will be filed today, party officials say they are close to filing. Earlier this week, former Republican Gov. Dan Evans said any lawsuit should be filed by today to begin the process before Gregoire is sworn in next week, though the legal deadline for a challenge is not until Jan. 22.

"We are all very mindful of two clocks that are ticking," state Republican Party Chairman Chris Vance said. "One is the legal clock. The second is the political and public-perception clock, and there's going to be a big event next week. She is going to raise her hand and take the oath of office. At least she's scheduled to."

Gorton said he was initially skeptical that a lawsuit could succeed. Votes by dead people and felons likely wouldn't have been enough to unseat Gregoire, he advised Rossi's team.

"Earlier this week when it looked like that was all there was, I said, 'Fine, go ahead, but you don't have an awful lot,' " Gorton said.

He was much more optimistic after the discovery this week that an unknown number, perhaps hundreds, of provisional ballots were improperly fed into voting machines on Election Day.
  
  
Those ballots are given to voters who show up at the wrong polling place or whose registration is in question. They are supposed to be kept separate and secure from other ballots until election workers can determine if the voter is properly registered.

When the ballots were put in the counting machines, it became impossible to separate legitimate ballots from those that should have been disqualified.

The Republican challenge also could include the allegation that King County election workers improperly "enhanced" ballots when the voter intent was not clear, said Republican Party Attorney Peter Schalestock.

The type of challenge the GOP is planning would essentially put the election on trial, with a judge hearing testimony and taking evidence on allegations of fraud or error that resulted in enough "illegal votes" that the true outcome of the election is unknown.

A judge can throw out the claim, declare Rossi the winner or nullify the election and call for a new one.

Two people got the jump on the official Republican challenge and filed complaints with the Supreme Court.

One was from Dr. Arthur Coday Jr., a Shoreline pediatrician and Republican Party donor who did his own research and drafted his own complaint.

"It was an issue of conscience, to be honest," Coday said.

He was particularly bothered that state law allowed the Democrats to order a hand recount if they came up with the $730,000 or so needed as a deposit to cover the costs if the recount didn't reverse the results.

He said he read the state Constitution, which says elections should be "free and equal."

"Gosh, if private parties can get a recount if they pay and if they can't if they don't, there's something wrong with that. It's not free anymore."

The other complaint was filed by Daniel Stevens of Fall City. He said he filed his complaint Dec. 30, the day Gregoire was certified as governor-elect, and later sent the court the $250 filing fee.

King County Elections Director Dean Logan concedes there were mistakes made with provisional ballots. He said there may be as many as 350 that were improperly put in the vote-counting machine.

But, he said, it would be wrong to "come to a conclusion that those were invalid votes that would have tipped this election."

He said that up to 90 percent of provisional ballots countywide were found to be valid in this year's election, so only a small percentage of the 350 are likely illegitimate votes.

He also said that the county is continuing to reconcile its lists of people who voted Nov. 2 and the number of ballots cast. While there was a difference of about 3,500 in those lists, Logan said that by today it will be down to 1,200 to 1,500.

That, he said, is in line with past elections and what some other counties have seen, and does not present a ripe target for an election challenge.

"That does not clearly indicate that the election would have come out any differently," he said. "There are valid explanations for why there might be a discrepancy."

He will issue a report today detailing the numbers and the reasons for the remaining discrepancy.

An attorney for the Democrats said she doesn't think Republicans will find any strong evidence for an election contest.

"Suspicion is not proof," said Jenny Durkan, a Gregoire confidant representing the state Democratic Party. She is not worried about a judge throwing out the mishandled provisional ballots.

"There is a strong presumption in law that you don't throw out votes just because someone made a clerical mistake," she said. "There's not even a 50-50 chance a court would rule with Republicans to set aside this election."

But this election has seen several unprecedented turns. "That's the only thing that keeps me from saying there's no chance," she said.