Race could go beyond recount

OLYMPIA – The race for governor might not be over even after a second recount, a lawyer for the state Democratic Party has suggested in a letter to state election officials.

The Democrats, citing a little-known, never-tested sentence in the state constitution, say the final decision might not be made by vote-counters or judges. A contested race, Democratic Party attorney David Burman wrote, would come down to a vote of the 147 lawmakers in the Statehouse in Olympia, which is controlled by the Democrats.

“If there is to be an election contest as to this office, the Constitution requires that it be decided by the Legislature, not the judiciary, and that would inevitably drag into the early months of next year,” Burman wrote in a letter to Secretary of State Sam Reed and Reed’s Election Division supervisor, Nick Handy.

After two tallies of nearly 2.9 million ballots, Democrat Christine Gregoire is trailing Republican Gov.-elect Dino Rossi by just 42 votes. A second recount – this time by hand – is under way statewide and is expected to take until at least Dec. 22.

Despite Burman’s citing of the constitutional language, the prospect of a final showdown in the Legislature probably is a very long shot in an election that has dragged on more than five weeks past Election Day. In a telephone interview Friday, Gregoire said she will abide by whatever the third count shows.

“I wanted a hand recount, and I will live by the result,” she said. “I don’t see any reason to go beyond that.”

But the state’s top Republican said he thinks the Democrats are telegraphing their next move if they lose the recount and a state Supreme Court fight slated for today.

“What’s frightening is the fact that the Democrats are seriously talking about this,” said state GOP Chairman Chris Vance. “If all else fails, they’ll build up a case to contest the election on the floor of the House and Senate.”

The section of the constitution in question – Article 3, Section 4 – reads, “Contested elections for such (statewide) officers shall be decided by the legislature in such manner as shall be determined by law.”

“We take it seriously,” said Vance. “I think that’s what they (Democrats) are planning.”

Neither Burman nor state Democratic Party Chairman Paul Berendt returned calls seeking comment for this story. But election and constitutional-law attorneys contacted by The Spokesman-Review on Friday said it’s unclear whether the framers of the state constitution really meant that legislators should pick the winner in disputed races.

“It could also have a more limited meaning, that it was simply authorizing the Legislature to pass laws” dealing with such elections, said Jim Pharris, a state lawyer who works in Reed’s office but isn’t handling the recount litigation.

And some Democratic lawmakers say they would be reluctant to back Gregoire in such a fight if she hadn’t won any of the three statewide counts.

“I don’t think it’s that likely a scenario,” said Sen. Jim Kastama, D-Puyallup, who heads the Senate committee that deals with election law. “I think it boils down to this: Whoever wins the (second) recount, we’ll back. I do not think either party will be successful in contesting it to the Legislature.”