All snideness aside, after reading some of the comments on the previous two threads, I thought it might be time to once again summarize and reiterate my position on this election and the subsequent contest.
As I have repeatedly and consistently stated since before the hand recount, this election was a statistical tie… the margin of victory too far within the margin of error to confidently determine the outcome. Ties happen, statistical or otherwise.
A tie does not result in a so-called “revote” (a new election.) When an actual numerical tie occurs for most offices, the winner is determined by lot; in Washington state, when a numerical tie occurs for an executive office, the winner is determined by the Legislature. If neither of these tie-breaking methods strikes you as particularly fair… too bad. The collective wisdom of the world’s oldest democratic republic is that settling things and moving on is more important than absolute certainty. And these are the established rules for settling things and moving on.
Likewise, there are established rules for settling the outcome of a statistical tie: one or two recounts. The very presence of a recount statute is an implicit acknowledgment that vote counts are never entirely accurate, but that a recount — being more carefully conducted — is less inaccurate than the count that preceded it. The very fact that the statute specifies a limited number of recounts, is an implicit acknowledgment that we are willing to accept some degree of uncertainty in the final results. Our statutes clearly consider a hand recount to be the most reliable tally (a position supported by the scientific literature, if not common sense) and thus a hand recount is specified as the final remedy to an extremely close election. So those are the rules for settling a statistical tie: count, machine recount, hand recount.
Christine Gregoire won the hand recount. Thus, by the rules both candidates agreed to prior to the election, Christine Gregoire won.
Of course, there is also a contest statute, and Dino Rossi has every right to utilize it to press his case. But we must be clear that the purpose of this statute is not to settle close elections, and not to provide certainty… for all extremely close elections are uncertain. Rather, the contest statute is intended to provide a remedy when it appears that illegal votes and other irregularities actually changed the outcome. It is not enough to show that the outcome is uncertain; we already know that, and our election statutes have no qualms with this. To set aside an election, it must appear that due to illegal votes and other irregularities the wrong person was declared the winner. That is Rossi’s burden in this contest.
And it is, admittedly, a very high burden of proof.
I have read comments here and elsewhere that express disbelief that a court could possibly permit the election results to stand when the number of disputed ballots is apparently so much greater than the margin of victory. I have been told that it would “offend common sense,” that it would be “unfair” and “unjust.” But I hate to break it to you: nobody ever said justice was fair, or vice versa.
TV crime dramas are chock full of story lines where some miscreant is set free on a technicality — often the inadmissibility of illegally gathered evidence. While it does indeed offend our sensibilities to see a clearly guilty criminal avoid justice, the entire system relies on the rule of law, and without strict adherence to it, the whole justice system could collapse. No judge has the power to determine when the rules should or should not apply.
Similarly, an individual election contest is not about fairness… it’s about following the rules set out in the contest statute. Mistakes alone — even the failure by officials to follow the letter of the other election statutes — are not enough to set aside an election. To prevail, Rossi must prove that he was likely the real winner, or that there was the intent to fraudulently swing the results towards Gregoire, or perhaps, that the margin of error was so far outside the accepted norms, that there is no way we can reasonably accept this as a free and fair election (the “total mess” strategy.) To date, I have seen no evidence to strongly support any of these assertions.
This election was a statistical tie; fortunately for those on my side of the aisle the coin toss came up Gregroire, but it could easily have flipped the other way around. Did the hand recount provide a significantly greater degree of certainty than determining the winner by lot? In this election, no. But then, as I have stated again and again and again, our election statutes prefer finality over certainty, and for very pragmatic reasons… because otherwise, every close election would end up being settled by the courts, a policy that would be costly, disruptive and untenable.
While many die-hard Rossi supporters can’t imagine the courts ruling against him, I haven’t talked to single attorney who has studied the statute, who believes the courts would be willing to set such a dangerous precedent.
