I am continuing to work on my analysis of Dino Rossi’s BIAW-backed election contest, and I’m still trying to get some expert legal advice. But I thought I’d share a little epiphany I had about what does or does not constitute a flawed election.
I have argued for months — before the hand recount even began — that the margin of victory in this election is so far within the margin of error, that we could never confidently determine the outcome. This is supported by the scientific literature, and as it turns out, by the known facts in this case.
For pragmatic reasons, I have always been comfortable with a degree of uncertainty… and apparently, so were the legislators who drafted our election laws.
Implicit in the recount provision is the acknowledgment that elections are imperfect (we wouldn’t conduct a recount if they were not.) While statute clearly assumes that a recount is more accurate than the original preliminary count, there can be no reasonable expectation that it be flawless. The statutory remedy for an extremely close election — even one in which the final margin of victory is but a handful of votes out of 3 million — is a single, hand recount. Statute accepts these results as final, despite the statistical (and common sense) likelihood that a second hand recount might produce different results.
There is a contest statute, however its purpose is not to prove that an election is flawed… we already know that. The intention of the contest statute is to allow us to fix errors and illegal votes while they are still correctable, or, to redress an election in which it appears that fraud, misconduct, or errors have actually changed the outcome. Rossi’s burden, at the very least, is to show the appearance that these disputed ballots accrued to Gregoire over him in numbers sufficient to have given her the governorship.
Given the evidence made public thus far, he cannot do this.
The acceptance of uncertainty implicit in our recount provisions is equally implicit in the contest statute… and with good reason. If the standard for setting aside an election was merely to prove that the margin of error is greater than the margin of victory, then all close elections would end up in court, and nearly all would be set aside. Such a policy would be impractical and untenable.
Rossi’s attorneys understand this, and while they’ll take a shot at repeating in court the same lame arguments they’ve made in public, their real hope lies in convincing the court to reach outside the contest statute entirely. To do this they will have to prove that this election was so fundamentally flawed, so outside the norm of accepted practices, that the courts must take extraordinary steps to restore the public’s faith in the process.
But as I’ve repeatedly stated, the only thing extraordinary about this election is its extraordinary closeness. Errors occur in every election, and while Rossi supporters might consider this explanation a load of shit… well, shit happens.
Perhaps Republicans really do believe that Democrats are so corrupt and dishonest, that if they looked hard enough they would surely find evidence of a “stolen election,” instead of just the typically flawed one we always have. I suspect the dispirited attitude now emanating from the right-blogs, flows from the growing realization that there is no corruption, no fraud, no widespread pattern of pro-Gregoire “mistakes”, just the usual distribution of random errors.
Could these errors have changed the outcome? Absolutely. But unless Rossi can prove that they probably did, his best shot at a new election will be in 2008.