Initial developments in the Republican lawsuit challenging the 129-vote re-recount victory of Gov. Christine Gregoire make one thing clear: The Democrat will be in office through the first key period of her, or any, administration—the 105-day legislative session in Olympia, which began Jan. 10. The case already has bogged down. It will be no sooner than Thursday, Jan. 20, that Chelan County Superior Court Judge John Bridges rules on two key motions that will determine how—or even if—it proceeds.
Who's Running This State?
Our Guide to the Mess in Olympia.
Donkey Kong: The Democrats are in charge — for now. But the many challenges facing Washington are going to test their ability to govern. By George Howland Jr. MORE
Fat Cats: Howard Schultz is among the many who have double-tall demands. By Rick Anderson MORE
The Revote Revolt: The Republicans are executing a perfect PR campaign, and the Democrats have rolled over. By George Howland Jr. MORE
Governors of Yore: Mossback's guide to the characters of the 1960s, '70s, '80s, and '90s. By Knute Berger MORE
On Thursday, Jan. 13, state Republican Party lawyer Diane Tebelius called a press conference to excoriate the Democrats for delaying the legal process. "The Democrats don't want to discover what the real facts are," she said. "If you really believe your mantra—'count every vote'—[Gregoire] should be saying, 'Let's get on with this case.'"
But Gregoire is not a defendant in the lawsuit, nor has she a lawyer representing her. Besides, the GOP's losing gubernatorial candidate, Dino Rossi, chose to take the matter to court knowing full well that the legal system is not built for speed. The Rossi campaign and the lawsuit's plaintiffs, which include regular citizens and state Republican Party Chair Chris Vance, are suing many, many people and institutions: all 39 counties, all 39 county auditors, Republican Secretary of State Sam Reed, Speaker of the House Frank Chopp, D-Seattle, and Democratic Lt. Gov. Brad Owen. All had a hand, however small, in certifying Gregoire's election. This week, Bridges allowed the state Democratic and Libertarian parties to have their say, too. Everyone—the plaintiffs, the defendants, and the interveners—is entitled to a lawyer, and every lawyer is entitled to make motions on behalf of his or her client. The first consequence is that the trial will be moved from the Chelan County courthouse in Wenatchee to the Chelan County Auditorium, just to accommodate all the defendants and their lawyers.
On Friday, Jan. 7, when Rossi filed his election challenge, his lawyer, Harry Korrell of Davis Wright Tremaine, claimed that the whole matter could be wrapped up in a few weeks. "The court is supposed to hold a hearing in not sooner than 10 and less than 20 days," Korrell said at the time.
The first thing to delay the case was Franklin County's request that the original judge, T.W. "Chip" Small, recuse himself. That caused the court's consideration of the preliminary motions to be delayed a week.
Then, on Wednesday, Jan. 13, Judge Bridges told Korrell that the 10- to 20-day time frame in advance of a hearing—the courtroom phase of a lawsuit—would not begin until after the evidence-gathering phase, according to Democratic Party lawyer Kevin Hamilton. "When the judge is ready, he'll give you notice," says Hamilton.
The Republicans have asked for a shortened "discovery" phase of three weeks, as opposed to the normal period of months in a lawsuit of this complexity. Even if the judge rules in favor of the motion for expedited discovery, the earliest a trial could begin would be Friday, Feb. 25. And if the trial wrapped up in a day and there were no appeals, which is improbable, there are only certain dates on which special elections may be held, and the law requires 45-day notice.
So the soonest a new election could be held for governor would be April 26—two days after the end of the year's scheduled legislative session. That gives Gregoire and the Democratic-controlled House and Senate plenty of time to pass a bunch of laws and maybe even a budget, although most observers think a special session extending into May or June will be required to accomplish the latter.
Of course, the Democrats have no intention of letting the case go the way the Republicans want, having filed a motion to stop it. The Democrats believe there are four problems with the lawsuit. First, the courts do not have jurisdiction in an election challenge of a governor's race (the state constitution assigns that power to the Legislature). Second, if any court has jurisdiction, it's the state Supreme Court, not a county superior court. Third, it's unconstitutional to hold a special election for governor. And fourth, the Republicans' claims don't have merit under the state law that speaks to contested elections.
No matter how the judge rules on the Democrats' motion to dismiss the case, any of the parties can appeal all the way to the state Supreme Court, and that fact guarantees that Gregoire will continue to be governor for the foreseeable future.
On Jan. 21, the Republicans also expect a ruling, on their motion for the shorter, three-week discovery period. University of Washington Law School Adjunct Professor Jeffrey Grant says that if the judge rules that the court has jurisdiction, he'll likely grant the Republicans a relatively speedy trial. "If the judge is going to say the Republicans have the right to be here, then it seems the judge has to do what he can to make the process move as quickly as possible."
Grant, who gave money to Gregoire but claims to be dispassionate on the legal case, says the GOP faces a big challenge, even if it gets a speedy trial. "The Republicans are pushing a rock up a hill," Grant says, having to show that illegitimate votes—whether by dead people, felons, or other ineligible voters—benefited Gregoire. "There has to be some demonstration of the 'so what?' rule," Grant says.
Republican Tebelius disputes that. "All we have to prove is there were 129 illegitimate votes," she says. "You don't have to prove that the votes attach to anyone." Tebelius admits, however, that the GOP's argument is based on its interpretation of court cases regarding past election challenges, not what the statute explicitly says.
Democrats will dispute that and anything else they can think of. And just as the Republicans have the right to challenge the election, the Democrats have the right to argue every point in court. "The Democrats are going to want to make sure everything proceeds thoughtfully. No hurry. If they are successful, we might not have a decision until 2008," quips Grant.