“These things happen in every election.” That’s what Republican Secretary of State Sam Reed said this morning on KUOW. And that’s why Dino Rossi, in his wisdom, voted for a major revision of our election code, including a contest statute with such a high burden of proof:
Illegal votes — Number of votes affected — Enough to change result.
No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
The Republicans are going to have to prove, at the very least, the appearance that the margin of illegal votes given to Gregoire exceeds her margin of victory. In Foulkes v. Hayes, the court accepted evidentiary findings of substantial ballot tampering on behalf of the contested candidate. But there has been no such evidence uncovered thus far in the governor’s race.
Given the lack of evidence that illegal ballots favored a particular candidate, it is not certain that the courts would even attempt to assign these votes to one candidate or the other. But if they did, the only reasonable method would be to take the known margins in the counties or precincts in which they were cast, and extrapolate this to the disputed ballots. Ironically, by that method, the 52 votes cast by felons allegedly found by the BIAW in Pierce County would result in a net gain for Rossi.
As to the unknown number of provisional ballots that are alleged to have been improperly scanned at the polling places, it is not clear that these even fit the definition of “illegal.” These ballots were not properly canvassed, due to error by poll workers. But if they had been handled properly, it seems likely that 90% of them would have been valid votes, based on the county wide percentages. So perhaps, maybe 30 to 40 ballots were counted that would not have otherwise.
There are errors and mistakes in every election, but there has been no evidence of misconduct, and no evidence of illegal votes being cast in favor of Gregoire. Furthermore, there has been no evidence that this election has been more flawed than the typical election.
I’ve said it before and I’ll say it again, if this election is tossed out on the evidence publicly presented thus far, then every close election should be tossed out, because the precedent will be that you simply need to prove that the margin of victory was within the margin of error… and that is true of every close election.
I don’t believe the courts would want to set that kind of precedent. And as Sam Reed reiterated this morning on KUOW: “I don’t think Republicans have a smoking gun.”