House Republicans plan to continue their legal fight over the razor-thin race for the 6th Legislative District in Spokane by asking a court to order that the likely hand recount use some 7,000 problem ballots sent in by voters, not the replacement ballots that had to be made for the vote-counting machines.
At a press conference outside the Spokane County Courthouse, State Rep. Richard DeBolt, of Chehalis, said the House Republican Organizational Committee didn’t have any evidence that anything improper was done when the ballots were “remade” so they could be tallied. The group’s lawsuit was an attempt “to allow more sunshine into the process,” he said, in the close race between Republican Rep. John Ahern and Democratic challenger John Driscoll.
Spokane County Auditor Vicky Dalton said the law doesn’t allow the county to do what House Republicans are asking. If the Driscoll-Ahern race goes to a recount, the law says ballots that were counted the first time around must be used, she said.
“We are recounting the vote that was tabulated,” Dalton said.
The controversy arises because Driscoll leads Ahern by 63 votes out of more than 75,000 cast, or less than one-tenth of 1 percent, and state law requires a hand recount whenever a race is closer than one-fourth of 1 percent. Among those 75,000 ballots are about 7,000 that had to be remade, either because they were cast as provisional ballots by voters with questionable registration; they came in to the elections office torn, wrinkled, wet or sticky; had stray marks on the ballot; were marked with colors of ink the machines can’t read; or were marked to show voter preference some way other than filling in the oval next to a candidate or choice on a ballot measure.
Whenever such ballots come in, the elections office has two workers fill in the voter’s choices on a blank ballot. The remade ballots are run through the machine and sealed; the original ballots are sealed separately. Although DeBolt insisted state law requires the county to use the original ballots when doing a hand recount, two election law experts for the state said that’s not the case.
Jeff Even, who represented Washington state on most recent elections challenges including the lawsuit over the 2004 gubernatorial election, said state statutes are silent on how to handle remade ballots in a hand recount. A case could be made that the original ballots are a better source, because a hand recount is “focusing very specifically, down on this one race,” he said. Also, the new ballots were made so a machine could read them, and a machine isn’t doing the reading in a hand recount.
But questioning whether the replicated ballots have mistakes in them is not the purpose of a recount, he added. Katie Blinn, the staff attorney for the Washington Secretary of State’s elections office, agreed that while statutes don’t address the point of remade ballots in a recount, she believes a state Supreme Court decision in the protracted Dino Rossi-Chris Gregoire court fights does.
“A duplicated ballot is counted during a recount. That was squarely decided in ’04,” Blinn said, adding that it was Democrats who had asked that year to have other ballots considered for the recount, and the state’s highest court said no.
The Spokane County Canvassing Board, which consists of Dalton, County Commissioner Bonnie Mager and Chief Civil Deputy Prosecutor Jim Emacio, could agree to review all 7,000 problem ballots and their duplicates before the election is certified on Monday, Blinn said.
The canvassing board refused to do that on Tuesday. “That is within their discretion,” Blinn said.