EDITOR’S NOTE: This editorial appears in the February 14, 2005, issue of National Review.
We have generally decried the recent trend toward attempts to settle elections after the fact in the courts. But the voting controversy in Washington State is a special case. As Byron York reports elsewhere in [the Feb. 14 issue of NR], it is impossible to know who truly won the Washington gubernatorial race between Republican Dino Rossi and Democrat Christine Gregoire. Gregoire has just taken office, having overtaken Rossi in a second recount. Her winning margin: 129 votes out of 2.8 million votes cast. Rossi had won the initial post-election-day count by 261 votes, and the first machine recount by 42 votes. Throughout the process, Gregoire has been helped by the ability of heavily Democratic King County (home to Seattle) to produce new batches of uncounted votes, including 573 supposedly mistakenly disqualified ballots that gave Gregoire her winning margin.
Rossi has filed a contest of the election in state court, as allowed by the state constitution. (He chose not to pursue action in federal court using the fanciful equal-protection arguments that are the unfortunate spawn of Bush v. Gore.) The exact standard he will have to meet will be decided by the judge, but at the very least he will have to prove that the number of ballots accounted for by fraud, error, or illegal votes exceeds Gregoire’s margin of victory. At 129, and with plenty of questionable ballots in King County alone, he should meet any reasonable test on this score. Then, the judge will have a number of remedies, including a statewide re-vote. That is the option favored by Rossi, who argues that the vote-counting process has been so chaotic and mishandled that no one can assume the governorship except under a debilitating cloud of doubt.
He is right. The painstaking precinct-by-precinct analysis of blogger Stefan Sharkansky at soundpolitics.com shows that in King County alone, there are 3,700 unaccounted-for ballots or voters. Some precincts have more ballots than voters, for a total of 2,900 “extra” ballots. Other precincts have more voters than ballots, for a total of 800 “extra” voters. These mystery voter-less ballots and ballot-less votes obviously are enough in themselves to put Gregoire’s 129-vote margin in serious doubt.
Other irregularities abound. The Seattle Times has reported that 129 felons voted in King and Pierce counties. At least 348 provisional ballots–which are supposed to be closely inspected to see if they are legitimate–were directly fed into machines and counted in King County. Some 55,000 optical-scan ballots (ballots on which the voter marks a bubble) in King County were “enhanced” so that the voters’ supposed intent could be determined, with no uniform standard governing the process. Roughly 500 voters used the address of the King County Administration building as their home address.
This all makes for an irrecoverable mess that Kirby Wilbur and other Washington state talk-radio hosts, the Wall Street Journal’s John Fund, and above all Sharkansky have helped expose. Even Dean Logan, the Democratic director of elections in King County, when asked if we will ever know who got more votes, has said, “Statewide, you know I think that perhaps we’ll never know the answer to that because of it being as close as it is.”
There are reasonable grounds for considering a re-vote unwise. York advances a few of them in his article. What precedent would it set? But elections this razor-close are extremely rare, and re-votes have happened before. As Fund points out, North Carolina is about to have a statewide re-vote in an agriculture-commissioner race. The trend toward litigated election results is already well underway and there seems little chance of stopping it. It may be that Rossi will hurt his political future by seeming to be a sore loser in this race. But that judgment is for him to make. If he believes the principle of upholding the integrity of Washington’s election process is more important than the political risk he runs, so be it.
There is, as many have noted, something to be said for finality in an election. We agree. But the only way to get it in this case is to tighten up procedures, and vote again.