Judge signs order in election challenge -Trial date uncertain

05:25 PM PST on Friday, February 18, 2005

Associated Press
King 5 News

OLYMPIA, Wash. - The Republicans' challenge to the election of Gov. Christine Gregoire will move forward in Chelan County Superior Court, but it may not move very quickly.

Judge John E. Bridges signed an order Friday in Wenatchee, confirming several rulings he made at a hearing two weeks ago.

Republicans asked for an April 4 trial date, but Bridges said he wants both sides to finish their legal fact-finding before he sets a date. That could take weeks, or months.

Democrats had asked the judge to clarify what, exactly, the Republicans need to prove to win their case. But Bridges said he thought he was plenty clear at the previous hearing. He stiff-armed the Democrats' attempt to more narrowly define the standard of proof that Republicans will have to meet.

However, Bridges said he wants to answer that question before the trial. He invited the Democrats' lawyer to make a motion and submit a brief, aiming for a hearing sometime in the next three weeks.

Republican Dino Rossi and the state Republican Party filed the election challenge in Chelan County last month, seeking to nullify Gregoire's 129-vote victory. They sued Secretary of State Sam Reed, who's a Republican, and all 39 counties. The state Democratic Party intervened to defend the election.

Republicans argue that hundreds of illegal votes and election worker errors make it impossible to know who the true winner was, so there should be a new election.

Democrats say that while the election had some flaws, it was accurate and Gregoire is the legitimately elected governor.

Both sides say they want a speedy trial and accuse the other of foot-dragging.

"The Democrats got totally shut down" on Friday, Rossi spokeswoman Mary Lane said. "They keep trying to delay or limit our case and they keep failing." Democrats complained that Republicans haven't handed over the list of allegedly illegal voters, as the Democrats have requested.

"Until the petitioners stop playing hide-the-ball it's awfully difficult to talk about a trial date," said Kevin Hamilton, a lawyer representing the Democrats.

Republicans pointed out that they have until Tuesday to respond to the Democrats' discovery request.

"It's hard to drag our feet when they're not even due yet," said Harry Korrell, lawyer for the Republican Party. He said the Republicans have also requested, and have not yet gotten, information about possibly illegal voters that Democrats have identified.

"If you show us your stuff, we'll show you our stuff," Korrell said.

On Friday, Bridges signed the Republicans' proposed order, which stated which motions were denied and which were granted, and included the transcript of the judge's ruling on Feb. 4.

The next step will likely be a hearing to decide what Republicans will have to prove to win their case.

State law says to win an election contest, you have to show that illegal votes or election workers' errors changed the outcome of the election. The question is, how? Democrats say the standard is strict: Republicans must match every illegal vote with a voter and a candidate, and then subtract the exact number of illegal votes from each candidate's total. That might mean asking felons, under oath, how they cast their illegal ballot.

Republicans say that burden of proof would be impossible to meet, and would render the election challenge statute unusable.

They have two theories. First, they say it's enough to show that the number of illegally cast ballots is greater than the 129-vote margin of victory.

Failing that, the GOP will argue that it should be able to present circumstantial evidence to show how illegal ballots were cast. For example, if 10 illegal ballots were cast in a precinct that voted 60 percent for Gregoire and 40 percent for Rossi, six votes would be subtracted from Gregoire's total and four from Rossi's total.

Just to make things interesting, both sides can point to a Washington State Supreme Court decision that backs their position.

The order Bridges signed Friday confirmed these rulings: denying the Democrats' motions to dismiss the case or move it to the Legislature; granting the Democrats' motion to take the "revote" option off the table if the Republicans win; and granting the counties' requests to be dismissed from the case.

Bridges allowed counties to continue as defendants if they chose. Most county attorneys, overwhelmed by the mountains of paperwork in the case, gladly dropped out. But four counties - Chelan, Klickitat, Lewis and Snohomish - decided to stay.