As reported in the Seattle Times (and nearly everywhere else), the WA State Democrats delivered a $730,000 check to the Secretary of State’s office today, and officially requested an unprecedented statewide hand recount of over 2.8 million ballots cast in the governor’s race.
The party also filed suit in the state Supreme Court, seeking a ruling that would allow all ballots cast to be considered, not just those counted in the previous two counts. Republicans are calling this a “nuclear bomb”, but the issue at hand is really very simple.
RCW 29A.64.011 states the following:
An officer of a political party or any person for whom votes were cast at any election may file a written application for a recount of the votes or a portion of the votes cast at that election for all candidates for election to that office.
And RCW 29A.64.050 further specifies:
a complete recount of all ballots cast for the office
What the Democrats are asking for is a ruling on what actually constitutes “all ballots cast”. Is it actually all the ballots cast in the election, or only those ballots already counted? The Democrats would like to start from scratch, as if the election just occurred, and reexamine the signatures of those absentee and provisional ballots previously ruled invalid. Seems reasonable enough.
D’s are also asking for a consistent standard to be applied across all counties in regard to signature matching on absentee and provisional ballots. The so-called “threatening letter” the D’s sent Wednesday to the Secretary of State alleges that King County rejected over 1500 absentee ballots and hundreds of provisional ballots because signatures did not sufficiently match those on record, yet a few counties “admitted candidly that they did not review the provisional ballot signatures at all.”
Republicans argue that a “recount” involves counting again something that has been counted before, and thus only those ballots counted the last time around should be reexamined… a reasonable definition of the word, but alas, one that does not appear in the RCW. This definition is further undermined by the fact that first “recount” included hundreds of ballots that were not part of the original “count.”
So, which way will the Supremes rule, if they rule at all? Hell if I know, for while I’m fairly competent at reading the law, I am — much to my mother’s chagrin — not an attorney. But either way, it doesn’t sound to me like the “nuclear bomb” the R’s are making it out to be.
Aha! Maybe, just maybe, this might explain why the Republicans are pulling everything out of the bag to try to make this legat hand recount seem illegitimate! It sounds like some counties were very (purposefully?) lax in their examination of provisional, etc ballots. Now, I wonder just which counties may be involved? Any bets?
It certainly appears that the Dems really have cause for this suit, and and should be able to make the case for it before the Supremes. Go Dems!
How very interesting. If I remember correctly the US Supremes ruled in Gore v Bush that there needed to be consistency or there were due process problems. Since Gore wanted to challenge only some counties, ie some forms and types of balloting, the court could not allow that. So it said stop, fracas over.
Is this not polar opposite? Counting all counties and all ballots cast by card, provisional, mail in, polling place or other method and in all circumstance. AND by exactly the same uniform standard in every county, counting board, and canvassing board.
Reed may have set himself up for the Court to mandate one way to do it in every situation- since he did not set up the clear standard two weeks ago.
I don’t know how to link, and this old Mac is antique, but would love to see more sites where the case is posted and citations about election law.
Could be more intereresting than the counting process which will drone on for many days. Dems are not asking to not start the recount, but seek a quick review/answer to get standards in place so that each county will use the same systems before it is all over.
Now that this is rolling they will get even more money. Folks like to donate to the onging, not the speculative. Dino smirking about lawyers is a mistake in that his own legal team will seek to be downgraded. Talking about bad ass lawyers as you go to court is bad timing.
Wondering which side will be smart enough to put Mr Eminence Jurist on display, and I don’t mean Gloria A.
The fundamental problem the Democrats have is that they did not challenge the decisions of the county canvassing boards at the time- I am willing to wager that will be one of the outs the State Supremes will use. It is a well-settled principal of law that legal action has to be commenced in a timely manner, and the failure to do so forecloses action later. The Democrats look desperate to change the universe of ballots to be counted, knowing a recount alone is not enough to change the outcome…
Here’s Marummy Lane in The Seattle Times:
“As far as we’re concerned, it’s trying to overturn the legitimate result of this election by any means necessary, ethical or not,” Rossi spokeswoman Mary Lane said. “Christine Gregoire cares more about her own political ambition than what the voters actually think.”
And Mary H.W. Bush: “We are not going to let this stand. We will not let her try to steal this election. Dino has won this election twice legitimately and Christine Gregoire is trying to overturn this election illegitimately.”
Even I find that a bit over the top… but get this quote you missed from the Vaninator roaring like it’s 2003 and Recall-ifornia!
“We’re into a street brawl. It’s bad for the system. We’re now way off the map. We’re into the political Twilight Zone. Democrats are breaking every rule of politics and by doing this, Christine Gregoire has forfeited any chance she had to be considered legitimate if she were to win.
“This is an Armageddon-type process.”
(KOMO’s report)
Armageddon does sound about right, though. Welcome to Ukraine, USA!
Josef- just because Goldy was ranting about hell… oh, right, I suggested we were there, too… What is that curse, “May you live in interesting times…”
Josef–I was in Olympia yesterday and looked up that woman you hate so much…Ms. Shannon. Well, I have some great news for you….and some not so great news.
The great news is Ms. Shannon is a total hottie!! Have you met her???
She is bright, vivacious, articulate….etc.
But the not so good news is that the thought of being in the same County with you makes her feel ill. I asked her if she would meet you for coffee so you could work out your anger towards her.
THAT’S A NO GO BIG FELLA!!!! But she did ask me to wish you a Merry Christmas & Happy New Year!!
Jim King notes that “It is a well-settled princip[le] of law that legal action has to be commenced in a timely manner, and the failure to do so forecloses action later.”
There are actually two similar principles. One is called laches; basically, you can’t prejudice a defendant by waiting an unreasonable amount of time before taking the defendant to court. It’s like a statute of limitations. There hasn’t been any obviously unreasonable delay by the Democrats, and no one has been prejudiced, so laches won’t bar their suit.
The other principle only applies within the context of a single legal action: failure to object to a judge’s ruling during trial may preclude an appeal of that ruling later. But that’s not what’s going on here either; the suit is newly filed, and the manual recount is a new development; the conduct of the previous recount isn’t relevant legally.
Hmm. Failure to appeal…who might that be?
Ah, but the general principle of law, of which the two examples you have given are examples, also applies when action ought to be commenced prior to a ministerial action- the argument will be that action relating to the county canvassing boards should have been taken prior to the Secretary of State’s certification of the election.
No one objected, in specificity, to the actions of the canvassing boards. That is an out for the State Supremes…
I also note that one of the “plaintiffs” in the case was apparently not a registered voter- no wonder he neither received an absentee ballot nor had his provisional ballot accepted. If the Democrats are so desperate that we are now to accept as legitimate votes those cast by persons who never registered…
And as for the “Failure to appeal…who might that be?” I’d offer that the state GOP were fools to file the case they did, and having had it dismissed, should not be allowed to raise it again. However, although I do not favor the lawyers being involved in this, I suspect that appeal deadlines on Judge Lum’s rulings have NOT passed, and both parties were timely in their actions there. Unfortunately, I believe that is one legal avenue Chris Vance will pursue should the recount return in Gregoire’s favor.
I hope TVW chooses to televise the oral arguments next Wed or Thur.
J K – Not sure the local Supremes will want out at all, but the opposite. They exist to make history, and most of the time cases before them are trival points of obscure law, or demure procedure flaws, and those cases offer no historic shakes/potential. Judical ego is boundless, that said as an observer and not a litigant or attorney.
There is no reason to be afraid of this case for the Suprmes. If they craft a smooth, logical response well grounded in the Constitution of this State, and thus writing judical history for all America to see, well that is sum of all their wet dreams. Judically speaking. And, most observers will agree our Supreme Ct is more liberal than centrist, meaning voter protective vs the power of the state to wittingly or unwillingly disenfranchise voters.
Since these big scale cases are rare, it will be a citation for all Supreme Courts/JurIsts, nationally and internationally.
Fame in the offering. More important than money, me thinks.
Comment by Mr. Cynical-dy— 12/3/04 @ 9:16 pm
Geese, you make me blush. Maybe I’ll call her on Monday – I don’t see why not. Do you?
I wish her a Merry X-mas full of coal for declaring war on my liberal pals and a Happy New Year – for it’ll be BIAW’s last if Goldy and a few other good men have our druthers!
Besides, I got a crush on another small-c conservative hottie… You can guess who, but I’m not going to confirm or deny much :-).
Comment by Jim King— 12/3/04 @ 9:07 pm
You bet, these are interesting times. Here’s another quote for these times: “Everyone with a computer is a statistician, and everyone with a mouth is a pundit.” – Gregoire campaign consultant Christian Sinderman.
And General Dino “Eisenhower” Rossi: “Every legal vote is counted. There’s a distinction there. The mantra of every vote… We want every legal vote counted.”
Peter A.- right now the State Supremes- and all of the state judiciary- are less concerned with making history and much more concerned with finding a way to adequately fund the state court system. The Board for Judicial Administration has been entertaining every lame idea that has floated around in recent years.
So which politicians who have a piece of control of their pursestrings do they wish to piss off?
This is a nightmare for the State Supremes- three of them also have to face the voters in under two years.
And throw in this thought- if one suspects that a simple recount of the existing universe of ballots is more likely to put Rossi in- it is more “the known” as unknown as it is than the alternative- and a ruling in favor of the Democrats is more likely to toss this up in the air, do you favor the guy that looks like he is going to win, or take a chance on the gal in a crapshoot…
Our State Supremes are better known for ducking if they can…
And whomever ends up as Governor has more impact on any funding scheme for the judiciary than does any other politician in the state…
Ah, the great Sinderman- he who too often got his clock cleaned by Eyman, and who helped blow Gregoire’s campaign. I’ll refrain from pithy comments about campaign consultants, who tend to lose many more elections than they win, but always have someone else to blame- but never anyone else with whom to share credit… I believe in the foot soldiers of the campaigns, whose long hours yardsigning, doorbelling, and phonebanking are who truly carry the day…
Comment by Jim King— 12/3/04 @ 10:10 pm
You and I both. I mean there’s nothing like a gent at your door with campaign stuff, always retaining their cool while making the case. Plus, friendly FYI: Rob McKenna when he spoke to the AWB in I think February made reference to ‘boots on the ground’ (my paraphrase).
I happen to know one of the Supremes… just an all around, nice, unassuming, every day kind of person. If this particular Supreme has a judicial ego, it is well bounded.
My understanding is that election laws are generally liberally construed to protect the rights of voters. (And no “construed to protect the rights of liberals” jokes, please. I’ve already said it, so there’s no point.)
Again, I’m not an attorney, but I’m guessing the D’s best shot is the simplest one… define “all ballots cast.” The law does not clearly define what exactly is to be recounted, so the Supremes can give the D’s what they want while avoiding the thornier issues.
Goldy- I know several of the Supremes- and I have a lot of respect for most of them- and I believe ALL of them will try to do what is right, not what favors one or the other candidate…
No claim of fact, just my opinion, that they’ll try and duck- and I’ve explained my reasoning above…
It is terrible to have been involved in politics long enough to actually know many of these people that have been involved in history this past month, and know that whatever disagreements about issues we might have, most electeds (of ANY party) are good decent people who are trying to do the right thing. That they are honest, would never steal a ballot, much less an election.
High ranking partisan activists, however, make lawyers look good… and used car salesman perfectly honest…
Jim King whiffs on a softball: “And as for the “Failure to appeal…who might that be?” I’d offer that the state GOP were fools to file the case they did…[snip]”
Gregoire. That would be Gregoire’s AG office who failed to file a timely appeal and cost the state a chance to contest an $18 million fine. C’mon. I can’t believe nobody got that. We’re a little too wrapped up in the recount, methinks.
A good cabinet maker takes great care in the craft, an excellent doctor works at a standard of excellence that can mean life or death. Editors who like their thing, will spend hourse on a phrase or spelling or verb use.
Folks at the top of their game take a lot of pride in that role, they understand their game and are not afraid to play. That is the ego I speak of, not the common sense of hubris or excess personality glibness, the look at me variety.
Don’t know any supremes, but several of lower status and that is my observation. Of the politics of judical system budget crises I know nothing.
Jim King, you posit that “the argument will be that action relating to the county canvassing boards should have been taken prior to the Secretary of State’s certification of the election. . . . No one objected, in specificity, to the actions of the canvassing boards. That is an out for the State Supremes…”
If you are talking about whether the manual recount includes ballots rejected in the original count, I don’t see the ‘failure to raise a claim in time’ claim as a winning argument. Even if the Supreme Court wanted to punt the case, they’d choose some other theory, because this is too much of a stretch. If the manual recount is supposed to count of all the ballots, as the statutes (cited by Goldy) indicate, the previous counts are of no particular interest. The Dems might be in trouble if they wanted to go back and contest the results of the first count now (if they didn’t object at the time), but they’re not precluded from demanding uniform standards and comprehensive counting in this recount.
If you’re talking about something else, um, oops….could you please clarify?
Eww. I apologize for using the word “if” six times in that post…at least one in every sentence. So much for editorial craft.
Okay, new quote for you all to swill from my favorite party chair: “We will fight this with everything we have — our lawyers will want to be part of the case… But Christine Gregoire has given up any chance she had at being viewed as a legitimate governor — even if she prevails in this.” You can guess which one… the quote’s in today’s P-I!
Save Our State! Save Our State! Save Our State!
And here’s a darn good editorial from Centraila’s The Chronicle:
————
STRONG MESSAGE: If King County, where Christine Gregoire got a huge margin over Dino Rossi, were taken out of the statewide total for governor, Rossi would have soundly defeated Gregoire, about 54 percent to 44 percent (2 percent went to the Libertarian candidate). Rossi ran significantly ahead of both fellow Republicans George Bush for president and George Nethercutt for U.S. Senate in this state, the latter two losing by significant margins.
That tells us that lots of Democrats voted for Rossi and that most of the state outside King County wants a different direction in the governor’s office to straighten out our economy. It would be a shame to have more of the same with Gregoire as governor — the same stifling bureaucracy, layers of red tape, union strangleholds and the unfriendly attitude to business that has hurt this state’s economy in recent years.
————
Save Our State! Save Our State! Save Our State!
David- I don’t swing at pitches thrown from previous games- Christine is not the lawyer here, but the client- or more properly, the candidate of the client… I made the terrible assumption you were talking about current events.
And Goldy is great at citing statute, but one needs to look at case law and practice, and that is where the timeliness comes in. The Democrats are advancing a novel theory in conflict with prior practice in wanting to reopen the question of what universe of ballots we look at in this recount… Same with their claim that the Legislature is the final judge in any real manner…
Jim — my bad for being unclear and insufficiently funny.
Re: your assertion that “The Democrats are advancing a novel theory in conflict with prior practice in wanting to reopen the question of what universe of ballots we look at in this recount“:
First, I think the question of ‘what universe of ballots is included in this recount’ is being opened for the first time. It’s not being “reopen[ed].” Nevertheless, I can see where you’re coming from — can you provide some support for that view? I.e., can you cite any authoritative source that states the decisions made in the first count are binding on the manual recount? I’d be surprised to hear it, but I’m up for surprises. Anyway, the Supremes won’t punt on the basis of timeliness unless that assertion is supported in law.
Second, what’s your basis for labeling the Dems’ position (demanding a review of “all ballots cast,” per the RCW) “a novel theory in conflict with prior practice“? The statutory language doesn’t seem so novel, so can you give an example or two of prior practice as to whether all or some ballots are considered in manual recounts, or of judicial interpretation on that point?
(BTW, I haven’t seen the claim allegedly made by the Dems that the Legislature should be the final arbiter in these matters. Sounds very odd.)
P.S.: I enjoy reading your perspectives, Jim; they’re usually well-considered and well-supported. Thanks for offering thoughtful arguments.
*Break for humor mildly relevant to political blogging:* If you want to have a really good laugh, I recommend the Red vs. Blue (web cartoon) episode titled “Real Life vs. Internet”. The comparison between politics in real life and politics on the Internet is priceless. You can download the episode from http://www.redvsblue.com/archive/archive.php.
FYI:
1. “Red vs. Blue” started back in 2003; it is not about red states vs. blue states. It’s a very funny, satirical cartoon based on the XBox game Halo.
2. The movie is about 21.6 MB, so think twice before downloading it using a slow modem.
*end digression*
David- we have had candidate requested manual recounts for decades- they have always been the same ballots counted previously- never has the the prior decisions of the county canvassing boards been reopened- even in the Evans vs Goos race in 1990, when we were looking at a differential within five votes (different numbers three times, all within five votes). There will not be case law, because this has never been adjudicated- because it was such settled practice.
Not that the lack of adjudication means that the State Supremes can’t go there- it just makes it more possible for them to say that this is settled practice and that there is no legal issue to be decided. The same holds true for provisional ballots- unlike many states, we have had them for decades, and again there hever been a legal challenge to this state’s practices…
As for the involvement of the Legislature- from the Dems letter Goldy has posted above- “If there is to be an election contest as to this office, the Constitution requires that it be decided by the Legislature, not the Judiciary, and that would inevitably drag into the early months of next year.” (last sentence of page 4 of the letter).
Josef – I know you didn’t write the editorial, but I have to object to their line of reasoning. The election for governer is a popular vote, the amount of acreage covered has no bearing. Since King County is by far the most populous county, the votes cast in this “small” (by acreage) county will have a proportionally larger impact than the other counties. It’s not right to claim that “most of the state” wants a different direction, unless you’re talking about acreage, and that’s not how we elect our statewide officials. As it stands, 42 more citizens want WA to move in “Rossi’s direction”, period. Let’s stop the talk about King County votes being somehow less representative of Washington.
Republicans attempt to use this line of reasoning a lot – “If was taken out of the count” or “Without the support of ” Democrats would be crushed. Josh Marshall (of Talking Points Memo) pointed out (http://www.talkingpointsmemo.c.....002717.php) that’s basically stating that the votes of that minority or that county are of some “lesser” quality. It’s basically a specious line of reasoning. Sure, if any candidate lost a large enough block of any kind of voter, they’d lose.
How would it sound if I flip it around – Without the votes of a few sparsely populated rural counties comprised solely of 500 right-wing evangelicals, Gregoire would have crushed Rossi. Or, (as Josh Marshall said) without the votes of creationists, Republicans would consistently lose.
We elect our officials by the vote, not the square mile. Thus it’s a total bogus argument to say that the rest of the state wants Rossi, so King county should get out of their way.
I suppose if the rest of the state wants to do without our opinions, perhaps they’ll want to do without our tax base as well?
Washington Constitution, Article III, Section 4: “Contested elections for such officers [Governor and other statewide elected officials] shall be decided by the legislature in such manner as shall be determined by law.”
Interesting, but I think the legislature already determined the manner of deciding this election, when it passed the RCW sections governing election recounts. And even if the legislature retains ultimate authority in deciding a ‘contested election,’ it’s still the job of the courts to interpret the laws the legislature wrote. (I can’t see the legislature getting involved unless we have a Ukraine-quality election.)
David- that’s the point- there are many similar clauses in the Constitution, all of which have usually been interpreted to mean “we aren’t going to decide that here in the Constitution- the Legislature will decide- by passing a law telling everyone how it will be done.”
The only role for the Legislature should be the one they are given in case of a REAL tie- we don’t flip a coin, the Legislature decides.
And as the Legislature has not had to elect a statewide official since we went to popular election of United States Senators, they do not even have rules for how they would do this- both chambers having to agree, both chambers voting jointly, or what?
And there are closet Dinocrats in the Legislature…
Aye, Jim, I’m agreein’ with ya.
Right on Jim—there are Dinocrats in the Legislature…and absolutely zero Chrisublicans!!!
And believe me- very few of the legislators- and NONE of those who would be caught “in the middle” (between their feelings, their party, their district, their special supporters)- want anything to do with having to decide this…
Sorry I fell behind…
To those complaining about the editorial – King County is 1/3rd of the state population. I also, living in Skagit, understand and share the frustration of the editorialist(s). And I take great offense at those whom believe we rural people are all evangelical nutcases. I certainly am not.
We need a new direction – that was the point. Does this give Governor-ELECT Rossi a mandate? No, all he will have is permission to govern and the need to govern dangerous close to consensus…
Josef – just to be clear, I wasn’t implying that all rural people are nutcases and/or evangelicals. Just saying that there’s no sense in saying “if you count 1/3 of the states votes as less than 1/3 because they only came from one county, then Dino Rossi has a huge margin.” That’s how the editorial read to me. And that makes about as much sense as saying, “If you only discount the votes of people in the least populated counties, Gregoire clearly would have won” No vote discounting talk. Everyones’ vote carries equal weight.
You are certainly free, of course, to feel that we need a different direction (which is why you voted for Rossi). But I don’t think it’s fair to argue there’s some kind of “strong message” with the vote this close.
Comment by jcricket— 12/4/04 @ 5:57 pm
Good points. But you said, “Without the votes of a few sparsely populated rural counties comprised solely of 500 right-wing evangelicals, Gregoire would have crushed Rossi” – hence my response.
I concur with you on the sentiment that “Everyones’ [LEGAL] vote carries equal weight.” Note what I inserted into your statement…
You also need to note that although the editorial had “STRONG MESSAGE” at the top, I also wrote, “Does this give Governor-ELECT Rossi a mandate? No, all he will have is permission to govern and the need to govern dangerous close to consensus…”
The same’s true of Gregoire, but I doubt very seriously she will understand that… I have many examples.
Josef – I think we’re on the same page. Just to be clear, I was making the statement about those “few rural counties” sarcastically (and I wasn’t even trying to talk about places like Skagit). It’s just silly to make conclusions about an election by removing blocks of people who voted for one candidate (or the other).
And to be pedantic, everyone’s “illegal” votes carry equal weight too – zero :-)