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In Sunday’s Seattle Times, David Postman lays out Dino Rossi’s options in challenging the results of the hand recount in the gubernatorial race. [Votes tallied for governor, but what’s next is unclear]

It’s a pretty straightforward discussion, though I do take issue with one very important misstatement. Postman continues to refer to the 735 disputed ballots as “rejected,” but the Supreme Court decision made it clear that these were misfiled ballots that never had their canvassing completed. This is a potentially significant legal distinction.

As to what we can expect from a contest, Postman only cites one example of an election contest that resulted in setting aside the results of an election. This concerned a 1974 Adams County commissioner race, in which the courts determined that a number of ballots had likely been altered between the original count and the recount. I’m not exactly sure if this says anything about our current situation, but I encourage you to read Foulkes v. Hays for yourself before educating me as to your own opinions on the case.

The burden of proof is quite heavy. Rossi would have to find enough errors or fraudulent votes sufficient to change the outcome of the election. 130 errors is not enough — there have to be enough errors to result in a net advantage to Gregoire of 130 votes.

My guess is that if we don’t start hearing soon about some hard evidence of fraud or misconduct, Rossi may skip an election contest, and go straight to federal court. Or, he may just lick his wounds and concede.

I want to wish a “Merry Christmas” to all my Christian friends out there. And to my many half-Christian friends, I wish a “Half-Merry Christmas.” To my “recovering Catholic” friends making their annual tension-filled trip to visit family, I realistically wish a “Tolerable Christmas.” And to my fellow Jews, I wish that movie theaters and chinese restaurants were still half-empty on Christmas day like they always were in the days of my youth back East.

To everybody else… “Happy Saturday!”

And just to prove I can twist nearly any topic into a political debate, I thought I’d relate a true Christmas story.

The other day my seven-year-old daughter — my brilliant and beautiful half-Jewish, half-Irish, shayna colleen — for the first time asked me if I believed in Santa Claus. I honestly replied, “No.”

I then asked her if she believed in Santa Claus, and without hesitation she said that she did. But when I asked her “Why?”, she paused for a moment, rolled her eyes in my direction, and incredulously exclaimed: “Well, your parents wouldn’t lie to you!”

And it occurred to me, that this is a metaphor for public perception over the torturous vote count in the governor’s race: people believe what they want to believe.

The very fact that my daughter asked me my opinion, showed that “the Santa question” had already raised certain logical incongruities not easily reconciled in her seven-year-old mind. And yet, she has chosen to believe two equally unlikely premises, that A) a magical fat man squeezes down her chimney to deliver presents on Christmas morning, and B) that her parents never lie to her.

Her suspension of disbelief is all the more remarkable considering that not only did her parents contradict each other on the question of Santa’s existence, but that neither one of us actually has a chimney that would lead Santa anywhere, but to a painful death in a fiery home furnace.

Now compare that to the many Dino Rossi supporters who passionately believe that the gubernatorial election was “stolen” by corrupt King County Democrats.

We are told that Democrats shamefully abused their 2-1 majority on the canvassing board to add, subtract and divine just enough votes to give Christine Gregoire the victory. And yet, the lone Republican on the three-member panel has publicly vouched for the integrity of the process, pointing out that all but 20 of the 1600 ballots before them were decided unanimously, and that he was not always on the losing side of those few split decisions.

We are told that King County Democrats cynically changed the rules of the recount by adding to “the universe of ballots.” And yet Rossi himself gained votes from hundreds of new ballots added in counties he won, while the Supreme Court, the Republican Secretary of State, the Republican King County Prosecutor, and Democratic and Republican county auditors from throughout the state have all affirmed that all these ballots were counted according to the long-standing rules.

And we are told that — as usual — the Democrats have stolen this election by fraudulently counting illegal votes. And yet despite all the insinuation and innuendo, the Republican Party has not set forth a single scrap of evidence of a single fraudulent vote. Whether these baseless allegations come directly from his mouth or not, Rossi has clearly sanctioned a dishonest and disgusting PR campaign cleverly devised to force upon Democrats the impossible task of proving a negative in the court of public opinion.

Now I totally empathize with Republican anger and disappointment… and even their suspicions. They truly believe that Rossi was by far the better candidate for the office, and thus they must find it incomprehensible that Gregoire could legitimately secure a majority of the votes, however slim. And what could be more frustrating than to believe that you have won, only to see victory slip away in the final days of the final recount?

But just because your party leaders tell you that Democrats are all a bunch of liars and thieves who would do anything to hold onto power — and just because it may be comforting to believe this in your moment of political grief — doesn’t make it true.

The truth is, parents sometimes lie to their children. Sometimes because we believe it is best for them, and sometimes out of, um… administrative convenience. And the truth is, politicians — or at least their spokespeople — sometimes lie to their supporters.

Now I’m not saying that Democrats aren’t just as likely to believe what they want to believe. But when the Rossi campaign tells us that when all the legitimate votes are counted, when the law is applied equally, when the corruption is uncovered, and the fraudulent ballots cast aside, that Dino Rossi will be governor… it is the political equivalent of telling us that there is a Santa Claus.

Believe it if you want, if that’s what makes you feel better. But it doesn’t make it true.

Political insiders are speculating that after his razor-thin loss in the governor’s race, Dino Rossi will turn his sights to Maria Cantwell’s US Senate seat in 2006. Indeed, Cantwell’s staff is already gearing up for a Rossi challenge, and promises to respond with a tougher campaign than Rossi faced from Christine Gregoire.

But I’m not so certain “Rossi for US Senate” is such a sure thing. Rossi has young children, and a move to the other Washington would be more than a little disruptive. Plus, I’ve always suspected that George Nethercutt’s failed senate campaign was a trial run to build up statewide name recognition — he would have been foolish to relinquish his cozy congressional seat without being promised a shot at Cantwell if he lost to Murray. (And besides, I couldn’t help but think those odd kibitzing-with-the-wife ads were more the opening of the ’06 campaign than the close of the ’04 one.)

But there’s another reason to suspect that Rossi may not be the anointed challenger in ’06… word has it that the anointer himself is quietly exploring a run of his own.

Of course, I’m talking about our state’s second-best-known lying, hypocritical loudmouth… Chris Vance. And with his hyperbolic performance during the protracted recount melodrama, the GOPolitburo Chair is poised to seize the top loudmouth spot from long-time champion, Tim Eyman.

Washington state is cursed with some of the nation’s most boring politicians: for every Jim McDermott there seem to be a hundred Gary Lockes. And into this void stepped Eyman, blithely spewing pithy, mean-spirited soundbites, unhindered by constituency or decorum… or the truth.

But with Tim’s political relevance shrinking faster than Alice down the rabbit-hole, Vance has exploited the election controversy to fill the vacuum with his own Eymanesque, anti-government rhetoric. And the media has rewarded him with the kind of news coverage any ambitious politician would die for. There are winners and losers in every election, but in this race, Chris Vance appears to be both.

While our friend Timmy would never run for elected office (he couldn’t afford the pay cut,) Vance has not abandoned his personal, political ambitions. Thrust upon a statewide (and national) stage, he appears intent on making the most of it. And what could be more enticing to an ambitious politician than a coveted seat in the US Senate?

Dino Rossi has gained nearly as much statewide name recognition from the recount as he did from the campaign itself, but in the self-promotion game, Vance has placed a very close second. While Rossi has struggled to maintain a mild-mannered, statesmanlike mien, Vance has hardened the hearts of the party faithful with his fiery accusations of Democratic corruption and his blithe, Orwellian doublespeak. If as the commentators on the right-wing blogs suggest, the battle-cry for WA Republicans should be “Throw the crooks out!”, then who better to represent this party-of-the-wronged against Cantwell than the man who refused to surrender in the face of all odds, all obstacles and all reason?

In an election contest, whatever it might do to the perceived integrity of the system, and whatever the result… Chris Vance figures that he will come out a winner. Any media attention is good attention; that’s the first page from the Tim Eyman playbook.

But Dino Rossi may not fare so well. He has surely benefited from the perception — misguided as it may be — that he was the “legitimate” winner after two counts, and Democrats were poor losers in seeking a third. But with every passing day that Gregoire holds the mantle of Governor-elect, this perception fades and the roles reverse. And should he drag this election through the courts, yet fail to prove the so-far-unsubstantiated allegations of fraud and corruption, any good will he has wrongly earned thus far by playing the martyr, will evaporate beneath the glaring spotlight of media scrutiny.

It is ironic then, that the man who most strongly urges Rossi to pursue this contest to the bitter end is the man who stands to gain the most by either victory or defeat. Should Rossi, against all odds, overturn this election, then Vance would have eliminated his most formidable opponent for the ’06 nomination. But should this gambit fail, as it most surely will, then Rossi will emerge politically diminished — a bitter, recalcitrant loser — a weakened rival to the firebrand Vance for the hearts of the party faithful.

I understand if Dino Rossi is gravely disappointed — indeed, suspicious — at his sudden reversal of fortune. But when he takes council from the likes of Chris Vance, he should take care to consider whether he is being asked to sacrifice his own ambitions, for the ambitions of others.

The other day I sent an email to Dino Rossi advising him to concede, and got a very polite email back from his campaign manager. Well today, I’d like to publicly retract my advice. Dino… stick with this as far as you can go… take it to the county auditors. Take it to the Legislature. Take it to the courts.

My change of heart comes after reading Matt Rosenberg’s piece on (un)Sound Politics, which surprisingly echoed my sentiments. At first I was impressed by Matt’s relatively tempered tone, and reasonable arguments. But then I read the comments from (u)SP’s loyal readers, and realized damn… they’re living in cloud cuckoo land. So why not let the Republicans self-destruct by wallowing in their anger and paranoia?

The fact is, unless Rossi’s got real, legal-type evidence of electoral fraud and corruption — enough to change the outcome of this election — he doesn’t stand a chance of winning an election contest in court. And as Danny Westneat suggests in his column today in The Seattle Times:

Paradoxically, a contest could be our best hope to move on. It would force critics to put up or shut up on this notion that the recount was rigged. They’d have to prove vote-counting manipulation in a courtroom, instead of just shouting it over the airwaves.

Public discourse has been so poisoned by unsupported insinuations of widespread malfeasance, that an election contest may be the only way to fully clear the air. So I say, bring it on. If King County is so corrupt, prove it in a court of law.

Plus, the longer Rossi draws out this election, the less he’s going to appear a victim, and the more he’s going to look like a whiny, arrogant, hypocrite. If Rossi wants to brand himself the biggest loser in state history, that’s fine by me.

So my advice to you is fight, Dino, fight! I’m sure Maria Cantwell is looking forward to a punch-drunk opponent in 2006.

It’s time for disappointed Rossi supporters to put this election behind them, and start looking towards the future. Apparently, that’s what Dino Rossi is doing:

(Thanks to Andrew at Permanent Defense who discovered this with me while we were on the phone.)

King County has certified the results of the manual recount: Gregoire +358, Rossi +179. That means Gregoire picked up net 179 votes in King County, giving her a commanding 130-vote lead statewide.

Of the 735 misfiled ballots, the canvassing board counted only 566 of them. Those ballots went 311 for Gregoire, 191 for Rossi, 26 for Bennett, 2 write-ins, 35 under-votes and one over-vote.

In an excellent article in The Seattle Times today, reporter Susan Gilmore attempts to explain the role of the King County canvassing board, and how surprising little controversy has arisen from what could potentially have been a partisan fire-fight:

The three-member panel, which decides which ballots are eligible to be counted and certifies election returns, is made up of two Democrats and one Republican.

But despite the partisan swirl that has surrounded the governor’s race, nearly all canvassing-board decisions in this election have been unanimous, and members say their focus is on trying to apply the rules fairly.

For this factual description of the process, Gilmore was criticized by right-wing blog (un)Sound Politics, in their usual, dismissive fashion:

Well, of course they would say that. Or at least two of them would.

So to set the record straight, I decided to ask the other member, Republican Dan Satterberg, who was appointed to the canvassing board to represent King County Prosecutor Norm Maleng. Here is what he wrote back:

The King County Canvassing Board reviewed around 1,600 ballots during the manual recount that were forwarded to us by the recount boards for determination of voter intent. The vast majority of those questioned ballots were resolved by a unanimous consensus of the Board. There were probably only about 20 contested votes, though I did not keep track of the number. While the split was always 2-1, of course, I was not always on the losing side.

I think Dan’s words require no parsing.

Of course, the folks at (un)Sound Politics could have asked Dan themselves — they’ve claimed to have emailed with him before. But they didn’t. Because their goal is to sow as much public distrust in the process as possible, so as to delegitimize a Gregoire administration, and possibly force a new election.

The truth is, the process has been transparent, orderly, and fair… even in those counties with no Democrats on the canvassing boards. And canvassing board members like Dan Satterberg deserve a lot of the credit.

Kudos to Republican Secretary of State Sam Reed for his guest column in today’s Seattle Times: “Standards in place for a fair recount.” And kudos to the Times for printing it in such a timely fashion.

Mr. Reed dispassionately explains our electoral standards:

Your ballot counts if:

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King County has announced the unofficial results of the hand recount: Gregoire +47, Rossi -12, for a net 59 vote pickup for Gregoire. That leaves Gregoire leading statewide… by 10 votes.

Gregoire’s lead is likely to increase by over 100 votes, once the results of the 723 “misfiled” ballots are added in tomorrow afternoon.

Dino Rossi & Company have been urging Christine Gregoire to concede since election night, and now that the manual recount has confirmed that Gregoire is the actual winner, in a statutorily final way, it is time to return the favor. Progressive Majority has set up form where you can send a letter asking Dino Rossi to concede the governor’s race. Please join me in urging Rossi to do the right thing for the good of the state… and his future political career.

I just love irony.

The Supremes have spoken, and now most of the 723 “misfiled” ballots will be counted, likely pushing Christine Gregoire’s lead to over 100 votes.

So how will the Dino Rossi campaign respond? Well the same people who urged Gregoire to concede in the face of a 42-vote landslide after the machine recount, are now challenging the legitimacy of any Gregoire victory, under any circumstances. No surprise there; R’s have been laying the groundwork to contest this election for weeks.

Republicans now claim that they have hundreds of disenfranchised Rossi voters lined up to contest signature mismatches… more than enough to throw the election back the other way. Rossi is apparently ready to tear open the recounts in the 38 other counties, only one day before the Secretary of State planned to certify the election.

Well, two can play at that game, and I have been assured that Democrats have been busy documenting their disenfranchised voters too, and can match the Republicans “affidavit for affidavit.”

But there is an irony here. Okay, perhaps “irony” is not the right word. How about: an incredibly blatant, arrogant, and galling act of hypocrisy on the part of Dino Rossi.

This is, after all, exactly what the Democrats where asking for the first time before the Supreme Court, an opportunity to recanvass all the rejected ballots so that we could find as many wrongly disenfranchised voters as possible, and count their votes! When Rossi held the lead, he accused Democrats of “changing the rules.” Now that he’s losing he’s ready to toss out the rules entirely.

Whatever.

I sincerely doubt that local elections officials — even those in Republican strongholds — have the same appetite for recanvassing rejected ballots as the Rossi/Vance team. The recount battle is over… we are now seeing first skirmishes of an election contest where the only winners will be high-priced attorneys… and bloggers like me.

The Washington State Supreme Court has just issued a unanimous decision reversing the lower court’s restraining order, meaning the 723 “misfiled” King County ballots may now be counted.

More after I read it….

The contest is over the contest.

The GOP attorney tried to argue out of both sides of his mouth. He essentially admits that the “safety valve” (RCW 29A.60.210) applies to the recount, but not to these 723 ballots, because they have been previously “rejected.” He also argues that the proper place for the Democrats to address these ballots is in a contest, but apparently it would do irreparable harm to Dino Rossi, if he had to challenge them in a contest.

Essentially, there is going to be a contest, and the GOP would rather it be filed by the Democrats, so they can accuse them of dragging this through the courts. At the very least, they would prefer that the burden be on the Democrats to prove in a contest that these ballots should be counted. Oh… and apparently it is all Larry Phillips fault.

As I figured, the GOP case all comes down to whether these ballots were “rejected,” and the King County attorney clearly argues that there was “no affirmative rejection”, but rather, that the ballots were “misfiled.” That said, she also argues that the canvassing board has the right to re-examine rejected ballots, at its discretion.

However, the most important new piece of information learned in the hearing this morning is that King County has located 583 signatures out of the 723 ballots in question. It seems likely that these ballots would add about 120 votes to Christine Gregoire’s margin… if counted.

Oral arguments before the Washington State Supreme court over whether King County should tally the 723 previously uncounted (and unrejected) ballots, will be broadcast live at 9:30AM on TVW. I’ll be watching via streaming video.

Now that it seems clear that Christine Gregoire has won the hand recount, the court can rule dispassionately, without having to worry about reversing an election. But the ruling is important nonetheless, for if the 723 ballots aren’t counted, and the margin stands at only 8, Dino Rossi will surely lead us into the abyss of a contested election. Whereas, add 120 votes to Gregoire’s lead, and Rossi will be forced to think twice.

This is from a “reliable source”, but “unconfirmed” and “unofficial” and all the other tentative qualifiers you can think of, but — not counting the 723 — Democratic number crunchers believe that after King County’s results are added in, Christine Gregoire will lead the manual recount… by less than 10 votes.

Expect the mainstream media to start reporting this tonight.

UPDATE:
I only scooped the AP by a few minutes. It’s in the P-I:

Democratic State Party Chairman Paul Berendt says recount results from King County give Democrat Christine Gregoire an eight-vote statewide victory over Republican Dino Rossi in the governor’s race.

King County Elections has confirmed that both parties received recount data today.

I wonder if Rossi still wants to stop counting votes now that he’s behind?

Thank you Jim “Hill” King for pointing out that the documents filed in tomorrow’s Supreme Court hearing are now available for download from the Secretary of State’s website. And of course, a special thanks to the people at SOS for doing the work to make these documents public.

Let’s have an informed debate.