Parties tangle in election ‘mess’

WENATCHEE – The 2004 governor’s election was so riddled with fraud and neglect that there’s no way to tell who won, an attorney for the state Republican Party charged Monday morning.

“This is the biggest mess I’ve ever seen,” Dale Foreman, a former legislator, told Chelan County Superior Court Judge John Bridges as the historic trial started.

But Kevin Hamilton, an attorney for state Democrats, said the errors the GOP will cite are the types of things that happen in every county in every state and in every election. Republicans have never produced any evidence of fraud, he countered, nor proof that the problems they cite would have changed the results and made Dino Rossi the winner instead of Christine Gregoire.

“It’s not enough to throw a bunch of dust in the air and make allegations,” Hamilton said. ” ‘Could have’ is not the standard.”

In the closest statewide election in Washington history, Gregoire beat Rossi in the second recount by 129 votes out of more than 2.8 million cast. Rossi had been on top after the first tallying of votes and the first recount, done by machines, were conducted.

Gregoire was certified the winner and serves as governor. But Republicans sued last January to overturn the election, citing a wide range of problems, from illegal votes by felons who haven’t had their voting rights restored, to ballots cast in the name of people who died before the election, to ballots improperly fed into voting machines.

All are illegal votes and should not be included in the totals, Foreman said.

King County, the state’s most populous and the one with the biggest margin of votes for Gregoire, had a culture of election problems ranging from “unbelievable neglect” to “outright fraud,” he said.

He showed a copy of a death certificate for a Seattle woman named Jazzy Blue, who died last Sept. 28. But somebody cast a ballot in her name that was signed on Jan. 19.

The party also will try to prove this week that ballot boxes were “stuffed” with extra votes for Gregoire in two King County precincts with the highest vote margins for her, and that ballots for Rossi were “dumped” from two precincts that had some of the highest margins for her, Foreman said.

“This election was stolen from the legitimate voters with a combination of illegal voters and bungling bureaucrats,” he said.

While Republicans can’t produce all the felons who voted or the people who stuffed or dumped ballots, Foreman argued they don’t have to for Bridges to void the election. They will have circumstantial evidence, such as a statistical analysis of voting patterns, and “sometimes circumstantial evidence is more potent than any direct evidence you can imagine,” he said.

But Hamilton said direct proof is exactly what the law requires before a court can take the “breathtaking step” of overturning an election and removing a sitting governor. Not only do the Republicans not have that evidence to bolster their case for Rossi, but they ignored evidence from around the state that would offset their claims and support Gregoire’s election, he charged.

Republicans plan to call mathematics experts to explain how the vote totals could be adjusted through a statistical analysis, based on how a precinct voted. But Hamilton said Democrats have their own experts to say why that’s not a valid way to revise election figures.

In one case, a precinct that went heavily for Gregoire had five felons who voted without having their rights restored, and under the GOP theory the majority would be subtracted from Gregoire, he said. But the Democrats interviewed all five, and four said they voted for Rossi and the fifth for Libertarian Ruth Bennett. One of the Rossi voters even contributed twice to his campaign and received a note of thanks from the White House for supporting Republicans, Hamilton said.

Despite public criticism of the election, Republicans never claimed in their lawsuit that fraud occurred, he said.

Bridges agreed, saying the GOP can offer evidence of illegal votes, neglect or “wrongful conduct” by elections officials but fraud would require a higher standard of proof: “The court does not believe there is a fraud element to this case.”

A Republican consultant called as a witness late Monday said the party has brought to Wenatchee 30 boxes of records to show that felons who aren’t legally eligible to vote did cast ballots in the November election. Daniel Brady said he organized the records of felons the GOP had investigated and found no records of their rights being restored.

But under cross-examination by Jenny Durkan, Brady said those boxes don’t include any of the felons the Democrats have discovered in counties that went heavily for Rossi. He was also forced to admit repeatedly that the GOP records only show those felons voted in November, not whether they voted in the governor’s race or for whom they voted.

“I haven’t seen any ballots or any marks on any ballots,” Brady said.

“So you don’t know?” Durkan insisted.

“Correct,” he replied.

Earlier in the afternoon, attorneys read testimony from a deposition of Secretary of State Sam Reed, the state’s top elections officer, who said he was “appalled” at mistakes in King County. Those included problems with tracking absentee ballots and provisional ballots, and matching the number of ballots received with the number of ballots it reported counting.

Those errors could have resulted in Gregoire being certified as governor even though Rossi got more votes, Reed said. “I can’t say this is absolutely the accurate result,” he said.

The King County Elections Department had a “culture of problems” that went beyond mere glitches, but some small counties also had mistakes that were proportionally bigger, he said. But there was no evidence that either party manipulated votes and “nothing rises to the level of fraud.”