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Thursday, December 16, 2004  

Law: Washington court rules against Democrats

Neither the slim lady nor the plump man has sung yet. The election for governor of Washington will not be over until a hand recount of all the ballots is complete. So, former attorney general Christine Gregoire and multimillionaire Dino Rossi await the outcome with even more interest than other residents of the Pacific Northwest. However, one of the questions unresolved for weeks has been answered. Only ballots previously counted will be recounted.* The Supreme Court of Washington ruled on the issue Tuesday.

Let's look at the slip opinion.

The Court considered the rationale for relief set forth by the Democrats of Washington state.

By a petition invoking this court’s mandamus jurisdiction and a statute entitled “Prevention and correction of election frauds and errors,” RCW 29A.68.011, various electors and the Washington State Democratic Central Committee seek an order directing Secretary of State Sam Reed to promulgate “uniform standards” for the manual recount now taking place in the Washington State election for Governor. Their Motion and Brief in Support of Emergency Partial Relief specifies that three such sets of standards are being sought:

(1) standards that ensure that all ballots rejected in previous counts are fully canvassed so that the hand recount produces as complete and accurate a tabulation as possible; (2) standards for evaluating previously-rejected signatures according to the more liberal standards applied in most counties; and (3) standards that allow party representatives to meaningfully witness the hand recount, by observing all actual ballots being counted.

The Court rejected that rationale as not supported by the evidence. The justices apparently do not believe a faulty electoral procedure caused votes not to be counted, or, to be counted so inaccurately it requires reconsideration of rejected ballots.

In this context, a “ballot” is a physical or electronic record of the choices of an individual voter, or the physical document on which the voter’s choices are to be recorded. RCW 29A.04.008(1)(c),(d). “‘Recount’ means the process of retabulating ballots and producing amended election returns….” RCW 29A.04.139 (emphasis added). The procedure for recounts is set forth in RCW 29A.64.041, and starts with the county canvassing board opening “the sealed containers containing the ballots to be recounted.” See RCW 29A.60.110. Thus, under Washington’s statutory scheme, ballots are to be “retabulated” only if they have been previously counted or tallied, subject to the provisions of RCW 29A.60.210.

It follows that this court cannot order the Secretary to establish standards for the recanvassing of ballots previously rejected in this election.

The justices went on the discuss specific arguments that had been made in regard to populous King County's ballot procedures, but found none of the worthy of finding infirmity in the current statutes.

I expected this outcome. The Supreme Court needed to be convinced of a major failure of the ballot counting procedure. Otherwise, the justices would not intervene in a legislative function -- establishing the criteria for voting and counting ballots. If the Democrats are serious, the appropriate response is to clarify state law in regard to the areas of the process that they consider inadequate presently. They should bring these concerns to the legislature.

Why the asterisk? Because some ballots that were not counted before probably will be, despite the Court's ruling. King County election workers accidentally failed to check a card file that contained signature cards for more than 500 absentee voters. Instead, workers mistakenly checked a computer record and failed to find those signatures. The ballots were excluded. Since the mistake was clearly worker error, King County intends to count those ballots. They could deliver the election to Gregoire. The Republicans are suing.

11:45 PM