David Postman of The Seattle Times had originally reported that Judge Bridges ruled that in order to set aside the election, Republicans must show that illegal votes were cast for Gregoire over Rossi in numbers sufficient to erase the 129-vote margin. But in the updated article that appears in today’s paper, he seems to have somewhat backed away, instead leaving it to interpretation:
Bridges said that at least at this point in the case, it is “sufficient to state generally” that there are enough illegal votes to cast doubt on the true outcome of the election.
But the judge cited a 1912 state Supreme Court case often mentioned by Democrats. In that case, the court found that if it is unknown which candidate received an illegal vote, “it must be treated as a legitimate vote.”
Bridges also said it “may be problematical for petitioners to ultimately prevail on a theory or a cause of illegal votes.”
Not having watched the hearing myself, and not having a transcript available, I asked Lawyer X for his interpretation, and what this meant for the Democrats.
It was a substantial victory and he did so rule. He referred to Foulkes a number of times during the decisions in terms of whether their allegations stated a cause for contest but he viewed his ability to set aside an election as limited to circumstances in which Rossi first proved that Rossi won the vote.
I think what a lot of people are missing is the statutory distinction between the grounds for proceeding with an election contest, and the grounds for setting one aside. The statute clearly states that to bring a contest it is merely sufficient to show that there were enough illegal votes to have changed the outcome. But the statute is equally clear that a higher standard must be reached in order to set aside an election: it must appear that the irregularities actually changed the outcome.
According to The News Tribune, Judge Bridges specifically said “I’m not ruling on burden of proof,” though it certainly sounds to me like he’s leaning towards a narrow interpretation of the statutory standard. But what seems absolutely clear is that his rulings cannot be understood at this time as supporting the Republican position that they need merely prove the margin of error is greater than the margin of victory in order to prevail.
The blogosphere, the MSM, and even the Republican and Democratic attorneys are also arguing over the practical result of Judge Bridges’ ruling that he did not have the power to order a new election. Democrats contend this means the only remedy available would be to declare Rossi the winner, while Republicans say the judge could still set aside the election, and leave it to the Legislature to order a special election. Judge Bridges seemed to interpret the state Constitution as saying the soonest a special election could be held is November of 2006, leaving Lt. Gov. Brad Owen to serve in the meanwhile.
This should be a huge PR blow to Rossi’s disingenuous “re-vote” campaign, as the judge clearly stated that he could not order a new election. What seems to have gone over everybody’s heads is what this ruling means in terms of the precedent set by Foulkes v. Hays.
In Foulkes, the Supreme Court cited its “general equity jurisdiction” in upholding the lower court’s decision to order a new election:
Where appropriate, these necessary and proper powers would include the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect.
The Republicans have heavily relied on Foulkes to provide the precedent for setting aside an election on the basis of irregularities alone, but in ruling that he does not have the power to order a new election, Judge Bridges clearly indicates that, at least on this one major point, Foulkes does not apply. Whether this lack of general equity jurisdiction is limited only to this remedy (due to constitutional restrictions on when gubernatorial elections can be held), or more broadly to the burden proof, remains to be seen. But his comment that it may be “problematic” for Rossi to prevail, suggests the latter.
Indeed, Judge Bridges seems to keenly grasp that the Legislature has pragmatically set a very high bar for overturning elections.
He said it is clear that a lot more election contests have been rejected than have succeeded because there are well-accepted reasons why elections should not be overturned.
“Do we as voters and as constituents and candidates want to engage in what one judge referred to as seasons of discontent commencing the moment after the polls closed on election day?” Bridges asked.
As I have previously suggested, the answer is implicit in our election statutes, which clearly prefer finality over certainty.
Listening to Rossi spokes-shill Mary Lane, you’d think Republicans were the big winners yesterday. But just like in the election, where winning two out of three means nothing when it’s the third count that’s final, it doesn’t matter how many rulings went the GOP’s way yesterday, when the most important one apparently went to the Democrats. If the judge subscribes to the Democrats’ argument that the statute must be narrowly interpreted, then Rossi’s burden of proof is more than just “problematic”… it is nearly impossible given the types of irregularities uncovered thus far.
My guess is, if either party is going to appeal the judge’s rulings, it’s the Republicans.
