May 24, 2005, 10:34 a.m.
The Never-Ending Gubernatorial Race
Rossi v. Gregoire, Round Two.

By Peter Kirsanow

The penultimate round in the dispute over the state of Washington gubernatorial election began Monday in a Chelan County courtroom. Republicans filed a petition contesting last November’s election — won by Democrat Christine Gregoire over Republican Dino Rossi by a mere 129 votes — on the grounds that the alleged errors, omissions, and misconduct of election officials rendered the election’s results unknowable. Republicans want the election set aside and a new election ordered.

Evidence uncovered in depositions and by local media reveals a vote-count process so questionable that it makes what one Democrat called the “nightmare of the Florida (2000) election” look like a model of electoral precision and probity. Nonetheless, the state’s standards for setting aside an election render Republicans’ success at the trial-court level far from certain.

On election night it had appeared that Rossi would win by just a few thousand votes out of approximately 2.9 million ballots cast. Then the fun began. Rossi’s lead narrowed to 261 after provisional ballots were counted two weeks later. A mandatory machine recount featuring a host of peculiarities further reduced Rossi’s lead to 42 votes. A hand recount ensued, providing Gregoire with an eventual victory after batches of uncounted votes kept popping up in boxes, warehouses, and even in the bases of the voting machines themselves. Gregoire was certified as governor on January 10, 2005.

It appeared as early as election night that there might be a challenge to the election. Polls conducted during the recount process showed a substantial majority of Washington state residents favored a revote. Polls also showed that a majority of citizens believed Rossi had won. Republicans filed an election-contest petition on January 7, 2005, citing numerous grounds for setting aside the election. Democrats initially contended that there was no basis for the petition, but evidence unearthed during the discovery process over the last few months suggests that the Republican case may be far more substantive than the rumors, myths, and legends that pervaded Florida 2000.

Among other things, the Republicans’ petition alleges that:

Election officials employed procedures that resulted in thousands more votes being counted than there were eligible voters. The Seattle Times reports that in heavily Democrat King County alone county officials counted 875 more absentee ballots than the number of voters actually recorded as having cast absentee ballots. The Times further reports that a King County absentee-ballot supervisor admitted in her deposition last week that she and the assistant election supervisor collaborated to file a report that falsely showed that the county had accounted for all absentee ballots.

Provisional ballots were counted without first verifying that the voters were lawfully registered and hadn’t already voted. Provisional ballots may be cast by voters who don’t have I.D., whose names don’t appear on the registry for the polling place, or who are recorded as having requested an absentee ballot. The ballots are held “provisionally” until such time as the voter’s eligibility to vote is verified. Counting provisional ballots without first verifying eligibility can result, obviously, in multiple voting or ineligible voters casting votes.

The Seattle Times reports that more than 700 provisional ballots were counted in King County without first verifying voter eligibility. A King County assistant election superintendent has testified that he instructed staff to count unverified ballots.

Felons unlawfully cast votes. Like most states, Washington prohibits felons from voting unless they’ve had their voting rights restored. Republicans assert that they’ve identified nearly 900 felons who voted illegally. Other reports put the figure above 1,100. (Democrats also contend that they’ve identified a number of felons who voted in traditionally-Republican counties.) Republicans will likely assert that a majority of the felon votes went to Gregoire. Indeed, a number of studies show that when felons do vote, unlawfully or otherwise, they tend to vote Democrat. A study by sociologists Christopher Uggen of the University of Minnesota and Jeff Manza of Northwestern showed that felons voted for Democrats at a rate approaching 70 percent. In fact, this estimate may be low. In Florida 2000, in some counties more than 80 percent of the felons who voted illegally were registered Democrats. If votes unlawfully cast by felons in the Washington gubernatorial election are proportionately deducted in this fashion from each candidate’s total, Rossi’s lawful vote total would exceed Gregoire’s by approximately 270 votes. Precinct proportionality, however, might well yield a different result.

Officials counted the votes of persons who had died before the election. The Seattle Post Intelligencer reported that at least eight people were credited with voting in heavily-Democrat King County after they had died. Republicans maintain that they have evidence of approximately 40 other votes cast by the dead. Republicans maintain that election officers accepted and counted votes cast by individuals fraudulently voting in place of deceased voters.

5 Military ballots were not sent out in a timely manner. Hundreds of overseas military personnel maintain they didn’t receive their ballots in time, and overseas personnel, in general, vote disproportionately for Republicans.

Different standards for counting were used from county to county. John Fund reports in a November 29, 2004 Wall Street Journal article that King County election officials “enhanced” hundreds of optical-scan ballots that had been rejected as unreadable by vote counting machines. Officials reportedly filled in incomplete vote ovals manually to comport with the officials’ determination of voter intent — a process reminiscent of Florida’s hanging-chad fiasco. Sometimes duplicate ballots were even created to affect voter intent. More than 700 ballots were counted in this fashion in King County.

Furthermore, Fund reports that when the provisional ballots of nearly 1,000 people in King County weren’t counted because of mismatched or missing signatures, a local judge granted Democrats’ demand for the names and addresses of the voters in question so that they could be contacted to correct the errors. Democrats then called voters to determine whether they’d meant to vote for Gregoire in order to validate the provisional ballots. (So much for secret ballots.) There’s no evidence of what the callers said to the voters. The National Labor Relations Board would throw out the results of a union election conducted in the same fashion. (Fund reports that, “Republicans played catch-up by belatedly using their own phone banks to call up voters and identify ballots that might fall their way if made valid.”)

Republicans are sure to introduce evidence of numerous other alleged irregularities at trial, such as the discovery of a batch of ballots in King County after the vote count had already been certified.

In the key case of Foulkes v. Hays, the Washington state supreme court recognized that a court may order a new election “where no other remedy would adequately correct distortions in election results caused by fraud or neglect.” But at a hearing earlier this month the trial judge indicated that Washington’s standard for overturning an election is a bit more onerous than that. The judge seemed to suggest that petitioners can’t simply show that the number of votes in question (felon votes, unverified provisional ballots, etc.) exceeds the number by which Gregoire won (129) — petitioners could easily do that. Rather, petitioners must show that the questionable votes actually resulted in Gregoire’s victory; i.e., that the number of felons, dead, etc., voting for Gregoire actually provided her margin of victory. The only sure way of proving that is by asking the voters in question for whom they had voted.

A less precise way of doing it is by statistical extrapolation. Republicans have suggested that they would use this method, taking, for example, the number of illegal votes in a particular county and allocating them to each candidate according to the candidate’s overall vote percentage for such county. The votes calculated in this manner are then subtracted from the candidates’ respective totals. This method, known as proportional deduction, has been used in scores of election contests throughout the country. Democrats may be able to challenge the accuracy in such a case unless Republicans employ multiple regressions to harden the projections made by this modeling.

Republicans will also emphasize the deposition testimony of elections officials showing that they consciously violated election counting procedures. While Republicans may not be able to satisfy the threshold for fraud (in fact fraud wasn’t specifically pled), they may be able to demonstrate that the election was so tainted as to mandate a revote. Indeed, Foulkes v. Hays does recognize that petitioners needn’t present “smoking gun” proof that illegal votes provided the margin of victory. Rather, if there’s proof that there were enough illegal votes resulting from the errors and omissions of election officials so as to throw the matter into doubt, the election may be set aside.

Whatever the outcome at the trial court, the case will be appealed. No election is perfect. Whenever millions go to the polls, glitches will occur. The glitches in most elections are the result of voter error (e.g., Florida 2000). But the problems of the Washington gubernatorial election seem to go far beyond that.

— Peter Kirsanow is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the position of the Commission.

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