The state Supreme Court this morning unanimously rejected the Democratic Party's recount lawsuit and will not order election officials to reconsider thousands of previously rejected ballots.

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OLYMPIA — The state Supreme Court this morning unanimously rejected the Democratic Party’s recount lawsuit and will not order election officials to reconsider thousands of previously rejected ballots.


The court, echoing the position of Secretary of State Sam Reed and Republican lawyers, said Washington state law makes clear that a recount should “retabulate” votes already counted and that county canvassing boards cannot be ordered to look again at ballots thrown out during the first two tallies.


The eight of nine justices who attended yesterday’s emergency session to hear oral arguments on the case also said there was no call for the court to mandate a statewide standard for signature checking of absentee and provisional ballots.


That had been a key argument of the state Democratic Party who filed the suit against state and local election officials. Party attorneys argued that King County’s high rate of rejection for those ballots as compared to other counties meant an uneven standard had been applied.


The court said there was no evidence that the standard applied by King County was the cause of the high rate of rejection.


“We do not take petitioners’ argument to suggest that a claimed disparity in rejection rates of voter signatures triggers some independent right, constitutional or otherwise, to a recanvassing of rejected ballots under a newly developed standard, nor does such an argument come to mind,” the court wrote in its decision.


Sam Reed, who had predicted the court would not intervene, said he was very pleased with the decision.


“This means we’re going to be able to get this hand count completed in a timely manner,” Reed said.


Republican Party Chairman Chris Vance was relieved by some good news for his candidate.


“Finally we get some great news,” Vance said. “The Supreme Court did the right thing. Clearly the law was on our side.”


Democratic Party Chairman Paul Berendt issued a statement saying he was disappointed in the ruling, particularly given that there is already evidence that there are valid votes in some counties that were not counted. He said the ruling means Democrats will have to make their case to each county canvassing board rather than rely on a statewide order from the court.


“It means that counties across the state will continue to use outdated and inconsistent procedures,” Berendt said. “Our goal all along has been to get mistakes corrected. Legitimate ballots were thrown out because of a variety of governmental mistakes. We’ve been trying to get those mistakes corrected.”


Democrats filed suit in the Supreme Court on Dec. 3, the same day they sought a statewide, manual recount of the nearly 3 million votes cast in the governor’s race.


Republican Dino Rossi won the initial election count by 261 votes over Democrat Christine Gregoire. A machine recount narrowed Rossi’s victory margin to 42 votes.


The Democrats alleged that election officials chose “expediency over accuracy and equality” in counting votes in the closest governor’s race in history.


The party was looking for two main things from their suit: An order requiring every county canvassing board to reconsider thousands of ballots rejected in the first two counts, and an order prohibiting King County from putting Democratic and Republican partisans on the county payroll as ballot counters. Democrats say it makes it too hard for those people to do their job as party observers if they are also given primary responsibility for counting ballots.


The court today rejected that argument, too, saying it was not convinced that meaningful standards for observers are presently lacking.

In the oral arguments yesterday, Democratic Party attorney David Burman told the court that King County’s errors show the need to require all counties to go through all ballots to ensure voters’ right to equal protection under the constitution.


“Some voters would have their errors corrected, but voters with exactly the same errors in a different county would be denied the right to have that correction, and hence would be denied the right to vote,” Burman told the justices.

THOMAS JAMES HURST / THE SEATTLE TIMES
Supreme Court Chief Justice Gerry Alexander, left, and Justice Barbara Madsen listen to arguments in the case.

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Burman was grilled by Chief Justice Gerry Alexander. If Democrats want counties to reconsider all their rejected ballots, Alexander asked, why not reconsider all ballots found to be valid in the first two tallies?


“Is there something arguably unfair about that?” Alexander asked.


Burman said he didn’t have evidence of votes improperly counted and that erring on the side of counting a vote does not pose the same constitutional problems as invalidating a ballot.


Alexander also seemed reluctant to make any sweeping assumptions about voting problems.


“How can we say this is a systemic problem … without some fact-finding?” he said.


The attorney representing Reed’s office told the court that the Legislature knew what it was doing in writing a law for a recount, not a recanvass, in case of a close election.

THOMAS JAMES HURST / THE SEATTLE TIMES
Thomas Ahearne, the attorney representing the Secretary of State’s Office, presents his argument against the Democrats’ lawsuit regarding the recount.

“The place to change the recount statute is the Legislature, not this court,” Thomas Ahearne said. “And the time to change the recount statute is before the election, not in the middle of the ongoing recount.


“Refusing to rewrite our state’s recount statute is not an equal-protection violation.”


The attorney for the Republicans said Democrats had asked the court not just to rewrite the recount law, but to “reinvent Washington state’s recount process.”


“Your election law is not a blank coloring book to be filled at the desire of a candidate because they don’t like the way a recount is going,” Mark Braden said.


But several justices seemed reluctant to inject too much judicial power in the midst of a recount. The years since the disputed 2000 presidential election have brought more judicial scrutiny to elections; some judges appear concerned about what one legal commentator has called the increasing legalization of politics through litigation and court action in elections.

THOMAS JAMES HURST / THE SEATTLE TIMES
Democratic Party attorney David Burman listens while arguments are made against the Democrats’ case.

That seemed clear from an exchange between Burman and Justice Bobbe Bridge. Bridge asked him about the difference between recounting and recanvassing, and pointed out the problem if either side could continually ask for reconsideration of rejected ballots.


“How are we ever going to get finality in an election if that is the case?” Bridge asked.


Burman: “We are in favor of finality. But we are in favor of finality after it’s done fully and fairly, accurately and civilly, and that is part of the manual-recount process.”


Bridge: “Are voters supposed to take a lawyer now when they go to vote just to make sure everything” is done correctly?


Burman: “If they care enough, if they are worried enough about the errors, perhaps they should.”


David Postman: 360-943-9882 or dpostman@seattletimes.com