All snideness aside, after reading some of the comments on the previous two threads, I thought it might be time to once again summarize and reiterate my position on this election and the subsequent contest.
As I have repeatedly and consistently stated since before the hand recount, this election was a statistical tie… the margin of victory too far within the margin of error to confidently determine the outcome. Ties happen, statistical or otherwise.
A tie does not result in a so-called “revote” (a new election.) When an actual numerical tie occurs for most offices, the winner is determined by lot; in Washington state, when a numerical tie occurs for an executive office, the winner is determined by the Legislature. If neither of these tie-breaking methods strikes you as particularly fair… too bad. The collective wisdom of the world’s oldest democratic republic is that settling things and moving on is more important than absolute certainty. And these are the established rules for settling things and moving on.
Likewise, there are established rules for settling the outcome of a statistical tie: one or two recounts. The very presence of a recount statute is an implicit acknowledgment that vote counts are never entirely accurate, but that a recount — being more carefully conducted — is less inaccurate than the count that preceded it. The very fact that the statute specifies a limited number of recounts, is an implicit acknowledgment that we are willing to accept some degree of uncertainty in the final results. Our statutes clearly consider a hand recount to be the most reliable tally (a position supported by the scientific literature, if not common sense) and thus a hand recount is specified as the final remedy to an extremely close election. So those are the rules for settling a statistical tie: count, machine recount, hand recount.
Christine Gregoire won the hand recount. Thus, by the rules both candidates agreed to prior to the election, Christine Gregoire won.
Of course, there is also a contest statute, and Dino Rossi has every right to utilize it to press his case. But we must be clear that the purpose of this statute is not to settle close elections, and not to provide certainty… for all extremely close elections are uncertain. Rather, the contest statute is intended to provide a remedy when it appears that illegal votes and other irregularities actually changed the outcome. It is not enough to show that the outcome is uncertain; we already know that, and our election statutes have no qualms with this. To set aside an election, it must appear that due to illegal votes and other irregularities the wrong person was declared the winner. That is Rossi’s burden in this contest.
And it is, admittedly, a very high burden of proof.
I have read comments here and elsewhere that express disbelief that a court could possibly permit the election results to stand when the number of disputed ballots is apparently so much greater than the margin of victory. I have been told that it would “offend common sense,” that it would be “unfair” and “unjust.” But I hate to break it to you: nobody ever said justice was fair, or vice versa.
TV crime dramas are chock full of story lines where some miscreant is set free on a technicality — often the inadmissibility of illegally gathered evidence. While it does indeed offend our sensibilities to see a clearly guilty criminal avoid justice, the entire system relies on the rule of law, and without strict adherence to it, the whole justice system could collapse. No judge has the power to determine when the rules should or should not apply.
Similarly, an individual election contest is not about fairness… it’s about following the rules set out in the contest statute. Mistakes alone — even the failure by officials to follow the letter of the other election statutes — are not enough to set aside an election. To prevail, Rossi must prove that he was likely the real winner, or that there was the intent to fraudulently swing the results towards Gregoire, or perhaps, that the margin of error was so far outside the accepted norms, that there is no way we can reasonably accept this as a free and fair election (the “total mess” strategy.) To date, I have seen no evidence to strongly support any of these assertions.
This election was a statistical tie; fortunately for those on my side of the aisle the coin toss came up Gregroire, but it could easily have flipped the other way around. Did the hand recount provide a significantly greater degree of certainty than determining the winner by lot? In this election, no. But then, as I have stated again and again and again, our election statutes prefer finality over certainty, and for very pragmatic reasons… because otherwise, every close election would end up being settled by the courts, a policy that would be costly, disruptive and untenable.
While many die-hard Rossi supporters can’t imagine the courts ruling against him, I haven’t talked to single attorney who has studied the statute, who believes the courts would be willing to set such a dangerous precedent.
You have posted a lot about this topic, but this piece should be praised for its frankness in acknowledging nothing is perfect and nothing will ever totally be fair.
Very, very well put, Goldy. Bravo.
Goldy, you have accurately described how the law works.
It’s important for everyone to understand that even though the outcome of the election is somewhat uncertain, in litigation the standard of certainty is even less. In a civil suit, under the preponderance of evidence rule, the required certainty is only “more likely than not,” or slightly over 50% certainty.
For example, let’s say a Rossi supporter and a Gregoire supporter collide in an intersection. Both claim they had the green light. They sue each other for their vehicle repairs, medical bills, and other damages.
After the evidence is presented, the judge instructs the jury to decide which driver ran the red light based on what is “more likely than not.” In a close case, the chances of the jury being right are approximately 50-50, but their decision is binding. If the jury tips to the Gregoire driver, the Rossi drive has to pay — despite the fact he believes he had the green light, and even if he did have the green light.
This lawsuit will not produce certainty — nothing can. However, it will produce a binding result. The losing side may not feel the verdict was fair, but they’ll have to live with it. Complaining that the court couldn’t know for a certainty who won the election will get them nowhere.
one point, Goldy–to be anally specific, the manual recount is NOT more reliable; it’s more accurate. Reliability is the propensity to return the same result over multiple counts by repeating the counting process the same way each time. Machines do that far better than people.
People are more “accurate,” because they are thinking beings and can interpret ballots that machines miss because they fall outside the parameters for readability. That is, folded or manipulated or poorly marked ballots will fail the machine, but humans can be given guidelines to further interpret the marks.
It’s best when addressing this part of the question, IMO, to say that the best kind of count is a manual one that follows a machine recount. That’s not coincidental to Washington’s format to be exactly that. A machine recount checks the reliability of the first count, and a manual count after that checks the accuracy of the first two.
The reason people say manual counts are better is that they almost always follow a machine count. And thus they add a higher degree of certainty by their nature, as opposed to another machine count.
Other than that nitpick, good summary.
Yes, this posting is well-argued, and, more importantly, right. It is far more important to have agreement on the rules for resolving a close election than to have the “correct” result (whatever that may mean here).
The only possible move for the Rossi challengers is what you call the “total mess” strategy. But for that to work we would have to have a theory explaining what a “total mess” looks like, and some benchmarks to make it plausible. We are a long way from either.
If the courts (God forbid) give us only an I-know-a-“mess”–when-I-see-one judgment, we will be in litigation after every election.
Cant the “total mess” strategy, be ruled out as a meaningful argument, by looking at all other elections over a given period?
I’ve seen 2%, and even 3%, used as a common percentage of errors in elections.
the ironic thing, of course, is that by going through two recounts, the error rate is far lower than most elections. The residual error rate (ballots lost because the machine wouldn’t read them) is near zero, because 55,000 were reinterpreted as votes. The lost-ballot rate was much diminished with the 735 found, and the others found during recounts. Otherwise, those would not have counted in a typical election. Those errors are in every election, and most of what you’d expect to find actually got fixed in this one.
Of course if the courts do rule in favor of the democrats (once all appeals are exhausted), they will face immediate criticism for being a bunch of activist judges.
The law has no specific relevance. If the judges rule the way the republicans want, they are upholding the law and properly interpreting the (state and/or federal) consitution. If not, they are brazen examples of the judiciary run amok — writing new laws which is well beyond their power.
The really sad thing is that this is so obvious apriori.
Goldy, Try to spice up your threads by using the words “voter fraud”, “felony”, and “capital crime” in your posts. Get ahead of the trail in May!
So Goldy–
Exactly how many attorneys have you talked to, what are their qualifications and how many were Republicans??
I love it when you quote these mysterious, anonymous sources of wisdom….but never reveal their qualifications or prejudices.
When you do that…the legitimacy of your whole post evaporates.
That said…I pretty much agree with your summary…just not your conclusion. And I have talked with several Constitutional Lawyers…not ambulance chasers.
Mr. Cynical,
Will you agree *not* to call judges activist if they don’t rule in your favor?
I will not call Judge Bridges an activist Judge if he doesn’t rule in Rossi’s favor. In fact, I would be willing to accept his decision and refrain from any appeal.
How about you??
I will not call the judge activist. Nor will I call for an appeal.
Any other takers out there??
There was a clear loser in this election. The Taxpayers of this state!
Some who voted for Gregoire and some who voted for Rossi!
Many are the same taxpayers that passed the I601 spending caps and the $30 tabs.
Most come from households that saw a decline in income last year and balanced their checkbooks with less, not a 12% increase in spending.
Many will have longer memories than these politicians have!
Does this mean Gregoire has to take back the $3800 refrig? [Libs just love to spend someone else’s money! Nothing is too good for a Democrat when someone else is paying!]
TJ @ 4
Joe, I must differ with your comments about the recounts. Machine counting is less accurate than a hand count, because the machines fail to count some of the ballots. Each recount added votes missed by the machines in the previous count(s).
(According to my spreadsheets, between the three major candidates, the machine recount added 2,429 votes missed by the machines in the original count, and the hand recount added another 1,716 votes missed by the machines in both machine counts.)
The hand count, at least in King County, should be 100.00% accurate, subject to the caveat described below. The reason is that every precinct was counted at least once (many precincts were counted more than once) by a Republican counter and a Democratic counter whose tallies had to exactly match.
The caveat is that some of the ballots sent to the canvassing board involved judgement calls, and if you put those ballots before a different canvassing board (or the same board at a different time), you might get some variation on how they called it on various disputed or unclear ballots.
But so far as the hand count of the clear, unambiguous, undisputed ballots goes, if you hand counted them again, the count should not be off by even 1 vote. Yes, the system they used is that accurate.
Tom @ 5, Diggin @ 6
You’ll see an Ice Age before you’ll see a court buy the “total mess” argument. Judges don’t think that way. Bridges will say to the GOP lawyers, “Okay, show me that Gregoire got 129 more illegal votes than Rossi did. I want numbers.” If their response is, “The election is such a mess, we can’t give you numbers,” the judge will respond, “You haven’t carried your burden of proof. Case dismissed.”
TJ @ 7
Now you’re cookin’.
Kendril @ 8
The GOPers might get some PR mileage out of that approach if a Bridges ruling in Rossi’s favor is overturned by a 7-2 vote in the Supreme Court (with Johnson and Sanders voting in the minority), but if Bridges rules against Rossi their PR campaign will be dead in the water.
JCH @ 9
He’s saving that for when the Repubs win an election — if they ever do.
GS @ 16
I highly recommend that you read the letters to editor columns in this weekend’s Time and P-I. As many of these letter writers point out, the 9 1/2 cent gas tax increase is peanuts compared to the roughy 80 cents a gallon the oil producers and oil companies have gouged us in the last 6 months; how come we don’t here people like you complaining about THAT? And unlike the highway robbery being committed against us by private enterprise, the people of this state will actually get something for their 9 1/2 cents — namely, highway improvements including replacement of two dangerous bridges. As a DOT spokesman pointed out, this tax boost is the culmination of two decades of transportation neglect in this state. Look at it this way: The procrastinating gave motorists a 20-year postponement of this tax. And you’re bitching about that? Sheeesh …
Alan @ 22, GS @ 16
I didn’t think this thread was about the gas tax. But I might as well add my 2-1/2 cents anyway. A lot of people aren’t going to like this extra gas tax. And the $2 billion or so poured into the viaduct will probably seem like a big waste to many people. Not enough by itself to make people turn Gregoire out, but something which will contribute. The 12% increase in spending just passed by the legislature will end up hurting Gregoire, unless there is a magic improvement in the economy and tax revenues increase without increasing tax rates. Otherwise, come the next biennum, there will have to either be serious spending cuts or serious tax increases.
JCH @ 17
Perhaps she should call Delay for advice on that issue…
Tend to agree with the post. Does the same standard apply to Florida ’00?
Alan @ 18
You say you disagree, but then you say pretty much the same thing I did: machine counts are less accurate than hand counts, but more reliable. Hand counts are the opposite. Your point about the eventual accuracy of the hand count is exactly right–they do them until they get a matching result. But the fact that they provide for multiple attempts until they get the same answer, illustrates why hand counts are less reliable–humans can count the same stack of ballots multiple times, and get different answers. Machines, given the same ballots fed the same way, will show the same result every single time.
Anyway, I think we agree here.
Even I admit that the outcome will probably be similar to that of the OJ trial. We all know he did it, but he got off scot-free.
The accounting of the results was far too screwed up to really determine a winner, but the universe of ballots was essentially frozen by the partisan canvassing board’s certification of the election on Nov. 17th even though there were still many irrecnconcileable documents that pertained to the validity of many ballots.
Retabulation by maachine and hard was largely a formality. The variance that swayed the race was the ballots that the Democrats got added to the universe by the Supreme court decision. In hindsight, if King County Elections had done a more thorough accounting and had removed the fraudulently and illegally cast ballots before certification, the result would most likely have been the opposite. But our archane laws really are more about stopping the process than they are about determining the real winner.
The people of Washington will have something to say about this in 2006 and 2008. Besides being uninspiring and frankly quite ugly in both her appearance and charisma, Gregoire has already gone back on her capmpaign promises and proved that she’s more interested in following union orders than providing any real leadership.
When she’s done with her one term, maybe she can help OJ find the real killer.
On an administrative note, Goldy, any plans to use blogging software that provides a preview before posting? Sometimes the way the text wraps in the entry window makes is difficult to catch errors (like the one’s in my last comment) A spell checker sure would be nice too. I suppose I could compose in a word processor and cut and paste, but that seems like more work. There must be some good blogging software that addresses these issues and better spam control, etc.