Usually, an election ends when the votes are counted. This year, Washington Republicans want to try something different: toss out the 129-vote hand-recount victory of Democratic Gov. Christine Gregoire and hold a whole new election between her and her Nov. 2 opponents, Republican Dino Rossi and Libertarian Ruth Bennett. The GOP calls this a "revote." Why would the electoral system perform any better a second time? The idea is wacky. But then, so is the Washington electoral system.
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Every day, there have been new revelations: dead people voting, felons voting, errors in the processing of ballots. Every day, too, Republicans shine a light on facts that do not surprise election bureaucrats but make the rest of us hang our heads in shame: Soldiers don't always get to vote. Lists of voters and the number of votes cast are never completely reconciled because eligibility checking—such as it is—occurs at the beginning of the electoral process. Every day, these real flaws in the system are decried, with plenty of rhetorical flourish, in the vast Republican echo chamber that is the blogosphere, talk radio, and newspaper letters columns.
On Tuesday, Jan. 11, the cries were heard in another echo chamber, the newly remodeled state Capitol. Their party already had sued to overturn the election results, but Republican legislators tried to help the revote cause by seeking to delay the inauguration of Gregoire. Their effort in a joint session of the state House and Senate failed along party lines, 80-65, with the exception of one Dinocrat, Sen. Tim Sheldon, D-Potlatch. No matter. The Republicans' effective invocation of wrongdoing seems to be everywhere.
As the Legislature began its 105-day session this week, and on the eve of Gregoire's swearing in Wednesday, Jan. 12, the GOP was in the midst of a beautifully conceived and wonderfully executed campaign in the court of public opinion. While the party will need an actual legal ruling, probably by the state Supreme Court, to force a new election, the GOP is banking a whole lot of political capital for the future. The Democrats, meanwhile, are making Gregoire's victory Pyrrhic in a couple of ways: They have barely mounted a defense of her legitimacy, and the newly elected chief executive makes matters worse every time she talks about the botched election. (Advice to future governors-elect: Never mention your adult daughter's purchase of a gown for the inaugural ball while trying to convince the people to accept an election outcome.)
This rhetorical imbalance is partly the result of the basic electioneering tendencies of both parties. Nothing makes the GOP grass roots grow deeper than election high jinks. While the lawyers representing Republicans in the revote campaign are very careful to say they have no evidence of fraud, the GOP's political leaders haven't been playing it so safe. Senate Republican Leader Bill Finkbeiner of Kirkland demonstrated how far the GOP is willing to go on flimsy evidence in a Dec. 30 e-mail: "I believe there is no question that King County's election process was biased in favor of Christine Gregoire. The King County elections process, run by an appointed elections official who reports to the Democratic King County executive, pushed the envelope repeatedly until they had the votes necessary for a Gregoire victory."
Because the GOP is so focused on fraud, the state party performed terribly during the recount process, actually allowing its candidate to lose the lead he held in the initial count and the machine recount (see "The Republicans Blow It," Dec. 29, 2004). The Democrats won the hand recount because they are better at finding votes—even after the ballots have been cast. The Dems aren't so particular about whether every little rule has been followed as long as they get those votes counted by the system. No wonder they are having trouble responding to evidence of a flawed electoral process. They've never been terribly concerned about such problems.
This difference in approach to elections will next be played out most significantly in court. On Friday, Jan. 7, the Rossi campaign and its allies officially challenged the governor's election in Chelan County Superior Court in Wenatchee. The Democrats say the GOP is looking for a small-town judge to toss the election. The Republicans claim it's better they sue in a county where they need not worry about bias. The lawsuit alleges that the number of illegally cast votes and valid votes that were rejected "renders the true result of the election uncertain." Attorney Harry Korrell of Davis Wright Tremaine explains that his Republican clients need not prove fraud. They just have to convince a judge the system performed so poorly that Gregoire's 129-vote win doesn't hold up. (Davis Wright Tremaine also counts Seattle Weekly and other media outlets as clients.)
Democrats counter that the proper venue for contesting a gubernatorial election is actually not the state judiciary but the Legislature, both chambers of which are conveniently controlled by their party. "I'm not certain that anybody can challenge a governor's election in front of a judge," says Democratic Party attorney David McDonald of Preston Gates. He says the election of nine state constitutional officers, which include the governor, abides by different rules than those that apply to the election of lesser offices, like mayor or county executive. McDonald quotes article 3, section 4 of the state constitution: "Contested elections for such officers shall be decided by the Legislature in such manner as shall be determined by law." That means the courts have no jurisdiction, he argues.
Republicans say this is nonsense—that to challenge the election of a state constitutional officer, including governor, citizens can use a state law, RCW 29A.68, which spells out the standard by which a judge can toss out the results.
One thing that both sides agree on is that there is almost no case law in Washington on election challenges for constitutional officers—and very little case law in the entire U.S. That means the outcome is uncertain, despite how strongly each side believes in its case.
The Republicans recognize they have an opportunity, whether or not they win in court. That's why their revote campaign is so smart. By whipping up a frenzy, the GOP has left most of Washington feeling like 2004 was a botched election. According to The Seattle Times, a statewide poll by Stuart Elway found that 60 percent of those surveyed believed "the election was not certain or legitimate." A legalistic ruling—let's say, for example, the Democrats win their argument that the courts don't have jurisdiction—isn't going to erase that feeling. The election of 2004 might be regarded like the Legislature's declaration of an "emergency" in order to fund the Seattle baseball stadium. Common sense said there was no emergency—that was just a way for the Legislature to prevent angry citizens from running a referendum to stop stadium funding. When the state Supreme Court upheld the Legislature's right to call stadium financing "an emergency," it just seemed like legal gobbledygook to annoyed citizens.
With the revote campaign, the GOP is hoping to play on similar voter anger. It is risky, of course, because the evidence of a seriously flawed electoral system could be revealed in court to be a lot of hot air. The Republicans could be painted as merely sore losers with a big bankroll and fancy lawyers.
But for that to happen, someone has to make a case against the revote, and the Democrats aren't doing that. State Party Chair Paul Berendt says he hasn't spent a lot of time worrying about a revote because it isn't going to happen. "This has been smash-face politics—a Republican PR ploy that has no traction," he says.
Maybe, but in addition to the free ink Republicans are getting by filling the echo chamber, the conservative Building Industry Association of Washington is buying radio and print advertising in support of a revote, and ReVote Washington (www.revotewa.com), a grassroots effort headed by Dinocrat political consultant Sharon Gilpin, bought $30,000 worth of TV ads.
The Democrats have made some effort. The party bought $50,000 worth of radio advertising supporting the legitimacy of Gregoire's election, featuring former Gov. Gary Locke, but the party failed to even notify the media of the ad campaign. Democrats also organized a counterprotest to the GOP's revote rally outside the Capitol on Tuesday, Jan. 11. But attendance paled in comparison to the Republican turnout, estimated to be 1,000. The Dems need to do much, much more.
Democrats are hoping, of course, that Gregoire will be her own best spokesperson. She has the bully pulpit of the governor's office, but so far she is showing no signs of knowing how to use it. Communication was a weakness of her gubernatorial campaign, too. She has announced she will make a "healing tour" of the state, which could be effective—if she has a message. Election reform would be an obvious first initiative for the governor. Picture Gregoire saying that she will guarantee that never again will the winner of an election be in doubt, that no candidate will have to go through what a deeply flawed system put her through. Such opportunities present themselves every day, but Gregoire fails to take advantage.
On Thursday, Jan. 6, Republican Secretary of State Sam Reed held a press conference at which he unveiled his election reform agenda for the legislative session. Reed trotted out a number of substantive proposals. Gregoire responded with the worst press release I've ever received from a politician of her stature. It was one sentence: "I look forward to working with Sam and the Legislature to ensure that we improve our election process."