State Supreme Court rules in favor of Dems

03:05 PM PST on Wednesday, December 22, 2004

From KING and NWCN Staff and Wire Reports

OLYMPIA, Wash. — The Supreme Court of Washington ruled unanimously in favor of the Democrats Wednesday, saying state law allows county canvassing boards to correct discrepancies in election returns - a decision that could very well decide the astoundingly close race between Republican Dino Rossi and Democrat Christine Gregoire.

The ruling lifts the temporary restraining order issued by a Pierce County judge last Friday and allows King County's canvassing board the discretion to consider up to 735 previously uncounted ballots.

Gregoire said in a statement the decision is a victory for voters. Gregoire planned to hold a 5:00 p.m. press conference; KING 5 and NorthWest Cable News planned to carry the press conference live.

"Today's decision by the Supreme Court is a victory for voters whose ballots were not counted through no fault of their own," King County Elections Director Dean Logan said in an issued statement Wednesday afternoon.

Logan is expected to announce the unofficial numbers of King County's hand recount - excluding the 700-plus uncounted votes - at a 3:30 p.m. press conference Wednesday.

Rossi won the election by 261 votes, and won a machine recount by 42 votes out of 2.9 million ballots cast. Democrats paid for a hand recount, which currently has Rossi 49 votes ahead of Gregoire.

King is the last and biggest county to report the hand recount. Their 900,000 ballots could flip the results, even without the extra 700 plus newly discovered ballots — basically making the Supreme Court case moot.

But if Rossi is ahead after King County reports on Wednesday, the Supreme Court’s decision will be very important. Though the 723 or so ballots haven’t been counted, it’s believed they would give Gregoire a boost larger than the current 49-vote margin lead by Rossi.

The King County Canvassing Board will meet Thursday morning to decide how to proceed with the 700-plus ballots not included in King County's original election returns.

If the three-person canvassing board decides to include the ballots in the official manual recount results, staff must first verify voters' signatures, then separate ballots from the return and security envelopes, then prepare valid ballots for tabulation before counting and certifying the results of the manual recount.

"This process will take time; however, democracy is worth the wait," said Logan.

The canvassing board will meet a second time Thursday at 3:00 p.m. to certify the final recount returns, including the additional 700-plus ballots counted as a result of the Supreme Court decision.

Wednesday’s drama will probably not be the end of the epic 2004 governor’s election — just the beginning of a new chapter.

If Rossi loses the third count — after winning the first two — he may challenge the election in court. Republicans are already preparing for a possible legal challenge.

Gregoire had promised to concede if she loses the recount. But on Tuesday her spokesman said if the Democrats lose the state Supreme Court case she may appeal to the state Legislature or challenge the election under state law.

To include or not include

The Supreme Court justices deliberated about two hours after hearing arguments from both sides Wednesday morning.

At Wednesday’s hearing in Olympia, a lawyer for the secretary of state’s office, Thomas Ahearne, told justices that state law allows canvassing boards to fix errors caused by election staff.

A lawyer for the Republican Party, Harry Korrell, argued that state law does not grant King County the right to correct its mistake.

A lawyer for Democrats, David Burman, said it was disturbing that Republicans want to exclude ballots and limit voters’ rights.

The question before the state Supreme Court was whether King County should be allowed to add to the recount 700-plus ballots that weren’t counted originally because of mistakes made by county election workers.

Democrats wanted the ballots counted and so did Republican Secretary of State Sam Reed. If the court ruled otherwise, said Reed, the ruling might have invalidate votes in at least five other counties that corrected and counted election office errors.

Republicans said a recount should not include new votes and that Supreme Court justices don’t necessarily have to consider the five other counties.

“I believe we disagree that the circumstances are similar enough to King County," said Mary Lane, Rossi campaign.

NWCN

The Washington Supreme Court justices are being asked to revisit and clarify a previous decision, a request that sometimes inspires a touch of crankiness from judges who believed they were quite clear in the first place.

The recanvassing law says county canvassing boards can reconsider votes when there is “an apparent discrepancy or an inconsistency in the returns.”

Some of the questions are: what’s the definition of “discrepancy,” “inconsistency,” and “returns”? And does the recanvassing law even apply in this case?

The justices were asked to revisit and clarify a previous decision, a request that sometimes inspires a touch of crankiness from judges who believed they were quite clear in the first place.

“They don’t like cases like this, but this one is unavoidable,” said University of Washington Political Science Professor David Olson. “If they didn’t take this case there would be chaos.”