Trial of the Century

Politically speaking, it's the trial of the century—at least in these parts—though it hasn't been much of a century yet. It's a trial to settle, once and for all, who was elected governor of Washington last November: Christine Gregoire, the Democrat who was sworn in, or Dino Rossi, the Republican who has sworn not to concede. Chelan County Superior Court Judge John Bridges and, inevitably, the state Supreme Court are unlikely to actually settle this. We'll never know who really won in an election decided, so far anyway, by a margin of 129 votes out of 2.8 million. The whole exercise seems faintly ridiculous. But there's no denying that the stakes are high.

The temptation, at this point, is to get lost in the legal minutiae. Will Bridges buy Republican allegations that King County's bumbling constituted electoral fraud? Will the Republicans get anywhere arguing that enough felons voted illegally that Gregoire might have lost without their support? (And aren't undereducated young males part of the Republican base, anyway?)

In the end, none of this should matter. This case does not belong in court, and it does not belong on the ballot in November 2005. If it did, every close election would be decided not by counting votes but by protracted court proceedings and dueling lawyers. Here's a handy rule: The richer attorneys are getting, the less likely it is that the will of the voters is being carried out.

Imagine the havoc in 2000 if Gore v. Bush had gone to the courts six months after Dubya took office. Imagine the potential for underhanded dirty tricks. Imagine the massive distraction it would have posed to the governance of the country.

As flawed as Florida's 2000 outcome was, the solution was to do exactly what Washington state did in 2004: count the votes—all of them—carefully. And then install the winner.

That's how Christine Gregoire became governor after the third counting, and that's where matters should have rested. All elections are imperfect. The winner is the person for whom the most votes are counted—not cast. The goal of beleaguered elections officials is to try to get the votes cast to match the votes counted, but when the difference is greater than the margin of victory, it's the tally that matters.

To her credit, Gregoire has governed as though none of this were hanging over her. She actually got more out of the Legislature in three months than her predecessor, Gary Locke, did in eight years. But for that reason, a revote would not be the same as the election a year earlier. Gregoire now has a record—including an unpopular new gas tax—to run on. One way or the other, the outcome would not be representative of the voters' will in November 2004.

Voters know this. Public support for a revote has declined sharply in the past four months, not so much because the public supports Gregoire or even accepts as fair the outcome of the election. Rather, most of us want to put the election behind us and get on with the business of the state.

In the name of expediting matters, the 5-4 U.S. Supreme Court majority in Bush v. Gore refused to count the votes. Today, Washington state faces the opposite problem: We're counting them over and over and over, as each side tries to game the system. That's what the trial in Wenatchee represents.

As such, Judge Bridges' threshold for overturning the election or ordering a revote should be very high. It can't be enough for the Republicans to demonstrate statistical probabilities or election-counting incompetence. For the election to be overturned, Republicans should have to demonstrate that Rossi won so convincingly that no other future forum could conceivably reverse the outcome again. That task is nearly inconceivable. It's not worth this elaborate trial.

Is that fair? No. But in an election, somebody's got to win and somebody's got to lose, and the state has an interest in determining the outcome quickly as well as accurately. With three counts of the votes, including one by hand, Washington did as much as we could reasonably ask to ensure accuracy. In that final hand recount, the Democrats were more effective at turning up miscounted votes than the Republicans. It's not a perfect system, but both sides played by the same rules, and Gregoire prevailed.

First the votes were counted by machine —twice; then they were counted by hand, which is less accurate even as it uncovers mistakes in the original count. Now the Republicans are hoping to rely on statistical analysis to prove fraud. With each step, we're getting farther from the intent of the voters. This is ridiculous. Throw the Republicans' lawsuit out, let Gregoire govern, and let her defend herself in three years. Once and for all, she has won the election.

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