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Politics, math collide in court

Mon., May 23, 2005

Washington’s long-running election drama opens a nine-day run in Wenatchee this morning, with Republicans trying to prove that Dino Rossi is the real winner of last November’s gubernatorial election.

Democrats will be arguing that Christine Gregoire didn’t just win the governor’s mansion fair and square, but she also won it by more than the 129 votes that put her on top in the second recount.

Much of the testimony over the next two weeks in Chelan County Superior Court is expected to be about political math – the adding and subtracting of ballots that one side or the other contends were cast improperly by people who voted more than once or shouldn’t have voted at all because they are felons, nonresidents or otherwise ineligible.

The Washington state Republican Party will focus much of its attention on heavily Democratic King County, which has the state’s greatest number of voters and, according to the GOP, the most problems with who voted and how.

“There are so many errors made by King County elections officials that it is impossible to rule out the possibility that votes were fraudulently added or subtracted from this election, and that fact alone is enough to void this election,” state Republican Chairman Chris Vance said last week at a news conference.

Among the alleged problems are questions about people who voted more than once, usually by absentee and at the polls or at separate addresses, and those who fed provisional ballots into voting machines instead of setting them aside so elections workers could verify the voters’ registration later.

For months, Republicans also have had staff researchers comparing lists of felons with lists of registered voters and believe they have found about 950 matches. Under the state constitution, a person convicted of a felony loses the right to vote when sentenced. Those rights can be restored, but the trial may focus some attention on how, and when, that happens.

Democrats have recently begun to counter that the Republicans are focusing too heavily on the Puget Sound counties that either favored Gregoire or gave Rossi small victory margins while ignoring possible felon votes in Eastern Washington counties that went heavily for Rossi.

State Democratic Chairman Paul Berendt says his party has 743 suspected felon votes from so-called Rossi counties and accused the GOP of hiding them while pushing the others. Pull out those votes, and Gregoire wins, he contended this month, which “reinforces the Democratic Party’s long-held belief that Dino Rossi has concealed illegal votes that benefited him in November.”

That complaint came a few days after Chelan County Superior Court Judge John Bridges, who will preside over the trial, ruled that all potentially illegal votes cast by felons, not just the ones the GOP submitted earlier in the year, should be considered in the trial.

But Bridges has yet to spell out how they will be considered, and that’s another legal skirmish expected in the trial. Calling more than 1,600 felons to the stand would take months, and Bridges has set the trial at nine days. Asking people on the stand if they committed a crime by casting an illegal ballot raises questions about self-incrimination; asking them for whom they voted violates the secrecy of the ballot, and results in an answer that can’t be verified.

Republicans have a pair of mathematicians – one from the University of Washington, the other from California Institute of Technology – ready to explain different formulas to subtract illegal felon votes from Gregoire and Rossi. Under their proportional analysis formulas, one called a binomial system, the other a multinomial system, the totals would change more for Gregoire, and Rossi would win.

Democrats have their own mathematicians, both from the University of Washington, who say the GOP’s experts are wrong. “We will not be able to resolve this question using data and statistical methods currently available,” Christopher Adolph said in a recent deposition.

Republicans have already filed a counterargument with Bridges, listing instances where proportional analysis has been used around the country.

A Seattle Times analysis published Sunday found that even if the felons’ votes were disqualified, Gregoire would still win under the proportional analysis method.

The Times initially analyzed both the Republican and Democratic lists, presuming they were entirely accurate. That approach showed Gregoire ahead by 112 votes.

The key is not necessarily in the number of felon votes, the Times reported, but where those votes were cast: Almost all of the felon voters identified by Democrats were cast in precincts won by Rossi. Using the proportional deduction method, that means more Rossi votes would be tossed out.

The Times also found that both parties made mistakes in compiling their lists: Some people on the lists were not felons – nor had they voted.

An analysis of a random sample of names on the GOP list submitted in March found that about 1 in every 9 names was wrongly included – an error rate of 11 percent, the Times said.

The Democrats’ list, completed a little over a week ago, had not been thoroughly analyzed by the Times. But assuming any errors would be distributed evenly across the list, its error rate would have to be astronomical – about 74 percent – for Rossi to emerge on top. A preliminary check indicates an error rate only slightly higher than that of the Republicans.

So even adjusting for errors, tossing out felon votes alone won’t make Rossi governor, the Times said.

Another area of argument will be the discrepancy between the total number of ballots counted and the number of voters credited with casting a ballot. Republicans say that’s another sign of a fatally flawed election, noting that in King County alone, there are 216 more ballots than there were voters signing in at the polls.

Democrats can be expected to argue that the system to track voters and credit them with voting, known as reconciliation, is designed for different purposes than a ballot counting system, and therefore not relevant to this dispute. To which the Republicans are likely to counter that reconciliation is a key element of preventing or catching voting fraud.

When they started this election challenge, Republicans suggested it could be over in a few weeks, or at most months, and result in an order for a “revote,” another matchup between Rossi and Gregoire. But Bridges has ruled the courts don’t have the power to order that kind of election.

Some state laws suggest that if enough votes are subtracted from Gregoire to leave her behind Rossi, he could be declared the governor by the courts. Other laws suggest the lawsuit could result in a new election, either this fall or next, for governor.

Whatever Bridges decides, the fight won’t end in Wenatchee. Both sides expect the loser to appeal to the state Supreme Court, for at least one more round of arguments.


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