The Monkey Wrench Trial

Dino Rossi's challenge of the 2004 election is on shaky legal ground. But if he prevails, watch litigation become an option in close races everywhere.

The political trial of our new century begins on Monday, May 23, in Wenatchee, the seat of Chelan County, a small city of about 28,000 known for apple orchards and Republicans. It's nearly the geographical center of the state, and while everyone knows the stakes are high for Washingtonians, Wenatchee also will be the center of attention for politicos nationwide. If the GOP successfully overturns an election of a Democratic governor in court, litigation will become a monkey wrench in campaign toolboxes everywhere.

Republicans and their losing 2004 gubernatorial candidate, former state Sen. Dino Rossi of Sammamish, want Chelan County Superior Court Judge John E. Bridges to nullify the 129-vote, hand- recount victory of Gov. Christine Gregoire, who took office in January. The Republicans want a new vote next November. Aside from possibly forcing an unprecedented off-year gubernatorial election, a Rossi win in court and at the polls would bring a very different set of priorities to state government: business, business, business, and conservative Christianity—in roughly that order. If Rossi loses, either in court or at the polls again, Gregoire would continue in her role as a moderate Democrat who favors targeted tax increases—on sin, gasoline, and the estates of the wealthy, for example—to invest in education, social services, and transportation. It's kind of like the difference between George W. Bush and John Kerry. This trial's outcome will touch every Washington resident.

Election systems are far from perfect anywhere. So a reversal of the outcome here is certain to encourage political operatives elsewhere, too, to swoop in when a margin of victory seems to be less than a margin of error. In that world, expect more legal challenges and fewer concession speeches. Conservative writer John Fund of The Wall Street Journal's calls this "the margin of litigation." He observes that lawsuits already have played a role at the presidential level, starting with the U.S. Supreme Court's decision regarding the 2000 Florida tally in Bush v. Gore.

Rossi's case in the trial court of small-apples Wenatchee is officially Timothy Borders et al. v. King County et al.—named for a GOP election observer listed first among several plaintiffs. The others are regular citizens Thomas Canterbury, Tom Huff, Margie Ferris, Paul Elvig, and Edward Monaghan; state GOP Chair Chris Vance; and the Rossi for Governor campaign. Other defendants are the state's 38 other counties and their auditors; Secretary of State Sam Reed, a Republican; Speaker of the House Frank Chopp, D-Seattle; and Democratic Lt. Gov. Brad Owen, who presides over the Senate.

Republicans have been honing their arguments since the election Nov. 2, and they haven't fared too well in pretrial decisions. They have tried several approaches and discarded them, and now are relying on presumptive statistical analysis to show that Gregoire likely received more illegally cast votes than Rossi did. The Democrats call it "guessing." Imprecision aside, legal experts caution that it is difficult to predict how a judge will rule. An argument that seems to lack all common sense might hold sway, or some testimony might emerge at trial that wins the case for the GOP. That said, the Republicans appear to have a weak case in a court of law.

In the court of public opinion, however, the GOP has already won. Since last November, the Republican Party has run an incredible public relations campaign to discredit the electoral system—particularly King County's—and to label the governor "Fraudoire." Polling data show that the PR campaign has helped Rossi and hurt Gregoire. The strength of the PR effort might even withstand a loss in court.

"The flow of news matched the GOP's game plan," says Western Washington University professor of political science Todd Donovan. Every new revelation from the news media about the failings of our state's electoral administration has brought cries from the GOP of fraud and thievery. Whether it has been screwups with military ballots, failure to reconcile the number of ballots and the number of voters, or voting by felons and dead people, the GOP has held numerous press conferences to rage against the machine that kept Rossi out of the governor's mansion. The Republicans also have brilliantly used elder statesmen—former U.S. Sen. and 9/11 Commission member Slade Gorton, former Gov. Dan Evans, and former Secretary of State Ralph Munro—to protest against this supposed miscarriage of justice. The charges have been repeated endlessly on talk radio and in the blogosphere. You can see the effect in public opinion polls done by Strategic Vision, an Atlanta-based GOP consulting firm.

Strategic Vision conducted polls without a paying client, hoping to raise its visibility in the Washington media market. Four polls of 800 people each between Dec. 30 and March 23, with a margin of error of plus or minus 3 percent, seem credible because they show that the public no longer supports a new election—hardly the Republican Party line. In January, 50 percent of respondents favored a revote and 39 percent were opposed. By March those numbers had reversed, with only 39 percent wanting a new vote for governor and 56 percent opposing. That is consistent with what election professionals know about voters—they are not dying to vote at the drop of a hat. "The last thing a normal citizen wants is more politics," says Dean Nielsen of Progressive Majority, a liberal campaign group.

While Washingtonians don't want a new election, Strategic Vision poll respondents now are more inclined to think Rossi was robbed of victory than they were in December, when 43 percent believed Rossi won and 41 percent thought Gregoire was victorious. By March, 56 percent called Rossi the winner and 36 percent believed Gregoire legitimately came out on top. Rossi's approval rating has grown, too, from 45 percent in December to 55 percent in March. Meanwhile, Gregoire's approval rating has dropped, from 44 percent in December to 39 percent in March.

That disapproval of Gregoire is mirrored in a poll conducted this month by Survey USA, a nonpartisan firm that works for television stations, including Seattle's KING-TV. The governor's May approval rating—34 percent—is the lowest of any Democratic governor in the nation and 47th among all 50 governors.

Rossi spokesperson Mary Lane says the GOP has exposed a tremendous wrong, and that's why public opinion favors Rossi. "One of the benefits that is going to come from this is to shed light on this terribly broken system. Maybe King County will clean up its act. It's in the vested interest of King County, the Democratic Party, and Christine Gregoire to keep it the way it is. It has worked for them, but it hasn't worked for democracy."

The actual evidence of intentional incompetence is nonexistent, however. The GOP is not claiming fraud in court. Rather, it has introduced evidence of administrative errors that are common, in particular a list of hundreds of alleged felons in urban and heavily Democratic King County who allegedly voted illegally, though for whom it is not known. Democrats have countered with their own list of illegal voters, in counties that favored Rossi, suggesting that mistakes in election administration did not benefit one candidate more than the other.

When you generously combine all the illegal votes claimed by Republicans and Democrats, you get around 2,000 out of more than 2.7 million cast for governor. That's 0.07 percent. Felons cast 1,622 of those illegal votes.

Republicans like to point out that the number of illegal votes is more than 15 times Gregoire's 129-vote margin of victory. Unfortunately for the GOP, that is not legally relevant. There is no law requiring a runoff between the top two finishers if an election's margin of error exceeds the margin of victory. It would be a commonsense electoral reform, but neither Republicans nor Democrats argued for anything like it in the recently completed legislative session.

What the law actually requires is that Rossi show that Gregoire received 129 more illegal votes than he did. In other successful election challenges, evidence was introduced to show that illegal votes or tampered ballots changed the outcome of the election. You cannot examine the 2,000-some illegal ballots—they are indistinguishable from the more than 2.7 millionlegal ones—so you have to figure out for whom people voted using other means. The illegal voters can be subpoenaed and put on the stand, but the number of witnesses required, not to mention the reliability of their testimony—many are felons, after all—makes this impractical for the GOP.

Instead, the Republicans are advocating a method of proportional deduction prepared by a respected statistician and political scientist, Jonathan Katz of the California Institute of Technology. Rossi spokesperson Lane says Katz's method of "ecological inference" has been widely used in voting-rights cases around the country and has even been upheld by the U.S. Supreme Court.

But three social scientists interviewed by Seattle Weekly, including one of the other leading experts on "ecological inference," say Katz is trying something very different in this case than has ever been tried before. In fact, they say they do not know of any court, let alone the U.S. Supreme Court, that has accepted what Katz seeks to do. George Mason University political science professor Michael McDonald, a leader in the field of elections and statistics, says of Katz's work in this case: "This is a whole new way of looking at things. I'm very hesitant about it. It hasn't been published. It hasn't been vetted in the academic community."

What Katz does is figure out how illegal voters cast their ballots by analyzing the precinct in which they voted. If a given precinct went 60 percent for Gregoire and 40 percent for Rossi, and there was one illegal voter in that neighborhood, for example, Gregoire would be assigned 0.6 of that one illegal vote and Rossi would be assigned 0.4. Says McDonald: "A court has never been comfortable in making this leap of faith."

It seems unlikely that Judge Bridges will be the first.

Chelan County Superior Court in Wenatchee is on the fifth floor of the Regional Law & Justice Building, which also houses the county jail. It's a long, rectangular block of concrete and brick. The building's most distinguishing characteristics are prominent ventilation ducts that break up the monotony of huge walls of poured cement, gravel, and sand. It was here, Democrats charge, that the Republicans came shopping for a sympathetic judge. As McDonald, an expert witness in many election cases, puts it, "More often than not in these cases, the judge's partisanship determines the outcome."

Unfortunately for the Republicans, Bridges does not appear to be anything like a partisan. While he has said he will allow the GOP to present its statistical analysis during a special hearing at trial, he has not indicated that he will actually allow its use to decide the case, much less whether he will find it convincing. This is a bench trial, there is no jury, and Republicans must convince Bridges to declare Gregoire's election invalid and the office of governor vacant—in which case, Lt. Gov. Owen would become governor—or declare that Rossi was the actual winner. Bridges has patiently explained more than once that the law presumes that the election of Gregoire is valid. Rossi and the Republicans must prove otherwise. Whatever Bridges decides will not settle it. The losing side will appeal to the state Supreme Court, a wholly different legal and political arena.

Political consultants around the country are watching the lawsuit and public relations campaign carefully. To date, there has been no downside for Rossi. He has kept his hopes for a new election alive in the legal arena and continued to be popular in public opinion polls—setting up a possible rematch with Gregoire in 2008, should his court case fail. Says Strategic Vision CEO David Johnson, a national Republican political consultant: "The political class, consultants—everybody is taking a look at it." Mark Mellman, a national Democratic consultant from D.C. who worked for Gregoire in 2004, agrees: "There's no question that not only the consultants but also the parties are looking at this case. It could well encourage many future challenges in many future close elections."

Professor Rick Hasen, an elections expert at Loyola University Law School, notes that the number of legal challenges has already climbed in the wake of Bush v. Gore from 62 cases in 1998 to 250 cases in 2002. "There is much less concern about damage to the democratic process and more concern about who won," he says.

University of Washington political scientist Bryan Jones thinks technological advances have encouraged electoral challenges. Computers have made it easy to collect and analyze data, he says. Before, if a candidate wanted to challenge results, he or she would have had to pay to have paper ballots recounted by hand. Jones thinks election challenges are actually good for democracy. "The more you look into this, you give people confidence that the system works right," he says. "It also makes the election administration better—which is even more important—because people are looking over their shoulder." Jones has examined the evidence in this case, and he has come to a very different conclusion than the Republicans' PR campaign. "What's amazing to me is how well this election was run," he says.

Western Washington professor Donovan agrees that the 2004 election's administration is holding up well under the microscope, but he thinks challenges have been bad for democracy. Opinion surveys show that supporters of the losing candidate in an election tend to be distrustful of the electoral system—for example, Democrats in 2000's presidential race and Republicans in 2004's Washington gubernatorial contest. "If you ratchet up the rhetoric, you start making more people more distrustful," Donovan says. "Is American democracy over? I don't think so, but the bitterness and cynicism on the loser's side will be more amplified."

That bitterness will flow into the governing process. Elected officials of both parties will be less likely to cross party lines to pursue sensible legislation that represents the public interest.

Rossi contends that his lawsuit is serving the public interest by forcing a cleanup of the electoral process. The GOP has done a tremendous job of using the real flaws in the electoral system to fulminate about how Rossi was unfairly denied the governor's mansion. Democrats have never figured out how to mount a rhetorical counteroffensive—although recently they have been trying. Even if Rossi loses his court case, GOP rhetoric might succeed in undermining Gregoire and helping Rossi win election as governor in a 2008 rematch. If that occurs, the election challenge will have succeeded on a political level, even if it failed legally.

If, however, Democrats can defend Gregoire's election in the courts and mount a successful rhetorical strategy that marginalizes Rossi as a sore loser, election challenges might not seem so attractive to other candidates around the country, and the search for a better monkey wrench will focus elsewhere.

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