[NWPT48]I was planning to post a detailed analysis of the election contest trial in advance of tomorrow’s ruling, but really… why bother? We all know Dino Rossi is going to lose, and we’ll all have plenty of time to hash and rehash the Judge’s written opinion between now and the Supreme Court’s inevitable decision to uphold it. So I just want to focus on a couple of legal points that I believe will play strongly into Judge Bridges’ ruling.
Throughout the proceedings the Republicans have relied heavily on Foulkes v. Hays, a case where an election was tossed out due to altered ballots. I have written extensively on Foulkes (for example, here, here, and here,) so I do not need to readdress it again, except to reiterate that it simply does not apply to this case in the way Rossi’s attorneys wish it would. And even if it did (and Becker v. Pierce County strongly suggests that it does not,) the Republicans have failed to prove that any fraud occurred.
Instead, after offsetting illegal votes and a few hundred mishandled provisional ballots, the Republicans have been forced to settle on their “total mess” theory… that official neglect and other irregularities — mostly in King County — has made the true winner unascertainable. Much of their focus has been on the failure of King and other counties to accurately reconcile the number of ballots cast with the number of voters credited. Republicans argue that King County failed to follow the law in reconciling the election and reporting the results to the canvassing board… and that this alone is reason enough to set aside the election.
But I’m guessing that in addressing this issue, Judge Bridges might cite McCormick v. Okanogan County:
In MURPHY v. SPOKANE, SUPRA at 684, we quoted with approval the statement of the rule found in McCrary on Elections 225:
” “If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits or affects the result of the election, or not.
Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the legislature.
But if, as in most cases, that statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.”
The point is that even if King County Elections failed to follow the law — a point I am not conceding — these technical violations do not amount to grounds for setting aside the election unless it can be proven that they materially contributed to swaying the results. Since these alleged violations all occurred during reconciliation and voter crediting, they could not have directly impacted the vote count.
What Rossi has asked the court to do is set aside an election due to official error or neglect, even though there is no evidence that these errors actually affected the outcome. If he were to succeed it would set a precedent in which all extremely close elections would end up in court… indeed, most would be set aside because the number of errors will almost always exceed the margin of victory.
As I have stated before, implicit in our election statutes is both an acknowledgment that elections are imperfect, and a pragmatic preference of finality over certainty. The recount statute defines an endgame for close elections, and the contest statute makes overturning the final result extremely difficult. This is not only intentional, it is necessary to assuring a stabile government.
Reading through Judge Bridges’ previous rulings it is clear that he understands the legislative intent. There is nothing clear or convincing about Rossi’s claims. And there is no way the Judge can rule in his favor.