Once the secretary of state certifies results next week, any registered voter can contest the election if there's evidence of wrongdoing such as misconduct, fraud or illegal votes.
One chapter in Washington’s tumultuous governor’s race closed today, when Democrat Christine Gregoire beat Republican Dino Rossi in a statewide hand recount by a razor-thin 130-vote margin.
But the story is far from over — and it’s anyone’s guess exactly how many more twists and turns it will take through the legal system before it ends.
Once the secretary of state certifies results next week, any registered voter can contest the election if there’s evidence of wrongdoing such as misconduct, fraud or illegal votes.
Some experts, like Western Washington University political scientist Ken Hoover, say it’s all but certain that Republicans or any number of disgruntled voters will challenge the election. What’s not clear is how such a challenge might be mounted.
“In order to contest it they would have to prove fraud. In all the rhetoric … I haven’t heard anyone indicate they have evidence that would stand up in court,” Hoover said.
After the state Supreme Court gave King County the right to add hundreds of mistakenly rejected ballots to its recount, Republicans pointed to a host of problems, saying it would disenfranchise voters not to fix them.
The challenges they’ve mentioned so far include:
— Asking canvassing boards across the state to take another look at votes for Rossi the party believes were erroneously rejected because of signature problems.
— Getting rules changed for counting the votes of military members serving overseas who claim they never received their ballots.
— And possibly contesting the election on grounds that the high court’s Wednesday ruling violated the equal protection rights of voters in other counties.
Some legal experts said such a challenge wouldn’t fly. The same election rules exist statewide, and that alone guarantees a voter’s constitutional right to equal protection, regardless of whether those rules were applied uniformly.
That makes it highly unlikely that the case would wind up before the U.S. Supreme Court, several lawyers said.
“The federal courts are not going to correct mistakes make by individual counties under a uniform statewide standard,” said David Burman, a lawyer for the Democratic Party. “That’s up to state courts to deal with.”
State Republican Party Chairman Chris Vance stressed that any challenge to the election was a long step ahead of where Republicans were focusing their efforts today: getting county canvassing boards to reopen their recounts to add votes from Rossi voters who believe their ballots were wrongly rejected.
Corky Mattingly, president of the Washington State Association of County Auditors, said most auditors statewide have decided not to reconsider rejected ballots.
The auditors agree with Republican Secretary of State Sam Reed, Mattingly said, that state law prohibits counties from recanvassing after their results have been certified.
“This is the end,” Mattingly, Yakima County’s auditor, said today. “You don’t just keep recertifying and recertifying.”
Vance called that “fundamentally unfair” and said Republicans had no plans to give up their fight.
At least one county planned to consider the Republicans’ request. Kittitas County Auditor David Bowen set a canvassing board meeting next Tuesday morning to review nine affidavits submitted from Rossi voters whose absentee ballots were rejected because they failed to sign the envelope.
“The elections need to appear fair and be transparent and accurate,” Bowen said. “Everything that gets before us should be discussed.”
Experts disagree on exactly what would unfold if the election is contested.
Some cite a line in the state Constitution that says the Legislature, where Democrats have a majority in both houses, would decide the election. Others say the same line points to a state law that says the dispute would be resolved in the courts.
“I think the prevailing view is that a contested election is determined in the court,” said Nick Handy, the state’s elections director.
State law says a court can void election results if it holds there’s solid evidence the challenger would have won if the wrongdoing alleged by plaintiffs had not occurred. Whether that gives the court the authority to call a new election is up for debate.
“I assume if the election is set aside you rerun it,” said Harry Korrell, a lawyer for the Republican Party.
Handy, however, said: “I don’t see any authority for a new election.”
Lawyers for both parties and the secretary of state’s office, which could be named as a defendant if the election is contested, said they weren’t sure today what the next chapter in the saga would be.
“We’re just sitting and waiting to see who does what next,” said Tom Ahearne, a lawyer for the secretary of state’s office.