Election case in judge's hands

WENATCHEE -- In closing arguments in the governor's election case yesterday, the Democrats repeated their insistence that the Republicans just don't have the goods to overturn Christine Gregoire's November victory, while the Republicans continued to place their hopes on a change of heart by the judge or his willingness to use an indirect statistical technique to decide who really won.

But in a sense, both sides -- and especially the GOP -- were playing to a different audience than Judge John Bridges, who has presided over the two-week non-jury trial in Chelan County Superior Court.

Bridges will issue his ruling Monday for either Gregoire or her defeated Republican opponent, Dino Rossi -- but the loser is virtually certain to appeal to the state Supreme Court. The Supreme Court has the latitude Bridges lacks to reinterpret legal precedents, although it can review only what's presented at the trial.

Consideration of that appeal waits for another day -- quite possibly one later this month, before the high court takes its summer recess. Yesterday was for Democratic lawyer Jenny Durkan and Republican lawyer Harry Korrell to sum up their positions in the legal struggle over the closest governor's race in the nation's history.

"The election of Gov. Gregoire must be affirmed by this court because petitioners (the Republicans) have failed to show by clear and convincing evidence that Mr. Rossi actually won the election," Durkan said.

But Korell maintained the GOP doesn't need to go quite that far to overturn Gregoire's 129-vote victory.

"This court can and must decide that the staggering number of errors and illegal and invalid votes, primarily but not exclusively in King County, appears to have affected the outcome of the election, and we're asking the court to set it aside," he said.

The problem for the Republicans is that on more than one occasion in pretrial proceedings, Bridges has affirmed the standard Durkan spelled out: that to overturn an election, the loser must prove that the result would be different if illegal and invalid votes are discarded.

Rossi, considered a definite underdog in the election, finished ahead first by 261 votes in the initial tally of more than 2.8 million ballots. He also won the mandatory machine recount by 42 votes. But in a final hand recount paid for by the Democrats under state law, Gregoire squeezed ahead.

The Republicans have spent much of the trial documenting foul-ups in the vote-counting, most of them in King County: ballots that don't match up with voters, provisional ballots counted without the required verification of voter eligibility beforehand, voting records that can't be reconciled, ballots overlooked until months after the counting ended.

They also have pointed to hundreds of felons who voted illegally. That ought to be enough, Korrell argued.

"It simply cannot be that our election contest statute and this court is completely impotent to resolve the staggering problems that we have seen in this election," he said.

The Democrats don't claim the election ran like a Swiss watch. They've even brought in evidence of additional mistakes throughout the state to suggest what happened in King County was not out of the ordinary.

"No one at this (lawyers') table will ever say that mistakes weren't made," Durkan said.

But, she said," The mess is not for this court to fix." That's a job for the Legislature and the executive branch, she said.

Besides, the Democrats, say, the foul-ups were innocent human errors that can't be used to change the outcome -- and that certainly don't amount to fraud. Evidence of fraud would allow Bridges to throw out the election simply on the basis that the number of tainted votes exceeded the margin of victory.

In the Republicans' opening statement in the trial, lawyer Dale Foreman declared that fraud and corruption did befoul the election. The Democrats objected, and Bridges said the GOP couldn't key their case to fraud because they hadn't met the legal requirements to do so.

But Korrell didn't quite let that claim go, either.

Citing correlations between voter-ballot discrepancies in King County and areas of relative strength for Gregoire and Rossi, Korrell said, "When you dig deeper into this data, it begins to look sinister. "I think we can be forgiven for thinking that something was rotten in King County in this election."

Durkan countered that she saw a disturbing pattern, too: Throughout the litigation, the Republicans have seized on whatever hot-button issue can cause the most fury regardless of whether they have the facts. "In the end, all of these attacks are sound and fury signifying nothing," she said.

The lawyers also dueled over the GOP proposal for Bridges to deduct illegal votes by felons and other invalid ballots from the candidates' totals in proportion to the percentage of the vote each candidate received in the affected precincts. During the trial, that battle was waged by expert witnesses.

"Your honor, I submit that the proportional deduction theory is not only scientifically unacceptable ... it's completely inaccurate," Durkan said.

The Republicans say it's the best method available for allotting illegal votes, given the impossibility of determining directly for whom many of those votes were cast. Dismissing the method doesn't help the court, Korrell said. Bridges has not decided if he'll apply the method. If he does, the outcome of the trial will depend on which side's claims of illegal votes he accepts.

After court ended for the day, Korrell acknowledged the challenge his side faces in light of Bridges' earlier rulings. But, he said, "You've got a judge who's trying very hard to do the right thing in a very difficult case."

Democratic lawyer Kevin Hamilton drew a sharp contrast between Foreman's opening statement and Korell's closing argument. "This trial started with loud exclamations and table-pounding," he said, "and ended with a quiet presentation of fairly weak evidence."

P-I reporter Gregory Roberts can be reached at 206-448-8022 or gregoryroberts@seattlepi.com

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