Both sides claim win in pretrial rulings

WENATCHEE – Republicans can try to prove Dino Rossi won last year’s governor’s race based on statistics, a Chelan County Superior Court judge ruled Monday.

But they’ll need to meet a very high “burden of proof,” and Democrats can offer their own evidence of illegal votes to try to prove that Christine Gregoire is the rightful occupant of the governor’s mansion.

Judge John Bridges gave both parties reason to claim victory during the last hearing before a two-week trial begins May 23.

Democrats said they got the better of the morning session because Bridges said he wants “clear and convincing” proof that felons and others not eligible to vote cast ballots illegally. That’s a tougher standard than Republicans had suggested, known as the preponderance of evidence.

The judge also said he wants “all the evidence available, if any,” on how those illegal voters marked their ballots in the governor’s race.

He can’t invalidate Democrat Gregoire’s win simply because there may have been more illegal votes cast than her 129-vote margin of victory over Republican Rossi, the judge ruled.

But when the upcoming trial reviews the results of the closest governor’s race in American history, Bridges will let Republican experts describe how they think illegal votes should be subtracted from the candidates’ totals based on statistical analysis.

Republicans contend that type of analysis will leave Rossi with more votes than Gregoire. With Bridges’ ruling, they believe they can convince him that so many mistakes were made in the way ballots were cast and counted that no one can tell who really won.

If that happens, they want Bridges – or the state Supreme Court, because everyone assumes any verdict will be appealed – to order a new election for governor.

Democrats say they can prove Gregoire got the most votes.

Under the state constitution, it is illegal for felons to vote unless they have had their rights restored, and those illegal votes shouldn’t be counted for the candidate who received them. Republicans say they have found evidence that 946 persons with felony convictions voted last November, and GOP researchers haven’t found any documentation that their rights had been restored.

“Felons stole this election from the citizens of Washington state … who had the right to vote and voted legally,” attorney Dale Foreman, former state senator and a one-time GOP candidate for governor, argued.

To restore the public’s confidence in the election, the illegal votes should be removed so they don’t dilute the votes of qualified voters, GOP attorney Mark Braden said.

But removing a specific voter’s ballot after an election is impossible, so the parties spent much of the morning arguing how to account for any illegal votes they can prove.

“Can we tell you how John Smith, murderer, in Precinct 1 of King County, voted for governor? We cannot tell you that,” Braden said.

Instead, Republicans want to use statistical analysis – also called “attribution” or “proportional deduction” – which they contend will show that Rossi got the most legal votes. Under that process, if 10 illegal votes showed up in a precinct that voted 60 percent for Gregoire and 40 percent for Rossi, she would lose six votes from her total and he would lose four.

David Burman, an attorney for the Democrats, called the system “probability based on inferences” and said there is no way to be sure that felons in a specific precinct voted like their neighbors.

“The rights of those who elected Gov. Gregoire should be given rights over a game of chance,” Burman said. “It does not reassure the public at all to know that the court is going to engage in an elaborate game of chance.”

Democrats also contend Republicans have focused on a few counties that voted heavily for Gregoire. They want to present evidence of felons voting in counties that favored Rossi to readjust any new tally.

“It will be clear at the end of the day that nobody stole this election,” Jenny Durkan, an attorney for the Democrats, said.

In rejecting the Democrats’ motion to bar testimony about statistical analysis, Bridges emphasized he wasn’t “adopting statistical analysis.” Instead, he said, he couldn’t refuse to let the analysis be presented at the trial, where he will weigh it with other evidence.

Also on Monday, Republicans argued they have done enough to call into question the voting rights of the felons their researchers have identified. Democrats who are contesting the list should have to prove individual felons have had their rights restored.

But Democrats contended that anyone who is registered to vote is presumed to be a legal voter unless a challenger proves otherwise. The GOP should be required to do more than merely “scan the files” for records that might show whose rights have been restored, as well as prove that each voted in November and marked his or her ballot in the governor’s race.

Bridges agreed mostly with the Democrats. “The burden of proof rests with the party contesting the election,” he said, and the Republicans’ list of names by itself isn’t proof that illegal votes were cast.

Democrats also can present proof of illegal ballots being cast in the election – presumably for Rossi.

“You folks should come up with all that you have,” Bridges said.