Court Rejects Washington Democrats Recount Lawsuit

The Washington Supreme Court has issued an order rejecting the petition of the Washington State Democratic Party to order a reexamination of previously disqualified absentee and provisional ballots in the recount for Washington's gubernatorial election.

The Associated Press reports the court said that under Washington law, "ballots are to be 'retabulated' only if they have been previously counted or tallied" thereby excluding those ballots that had been disqualified by canvassing boards:

Thus, under Washington’s statutory scheme, ballots are to be “retabulated” only if they have been previously counted or tallied . . . .

It follows that this court cannot order the Secretary to establish standards for the recanvassing of ballots previously rejected in this election. [From the court's decision.]

The Seattle Times reported these details about Monday's oral argument before the Washington Supreme Court:

Burman [Democratic Party attorney David 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.

[. . .]

The attorney representing Reed's office [Secretary of State Sam Reed] 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.

"The place to change the recount statute is the Legislature, not this court," Thomas Ahearn [the attorney representing the Secretary of State's Office] 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.

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."

At Election Law, Rick Hanson posts that the court's decision appears to have no affect on the 561 uncounted ballots in King County that were discovered Sunday. Those ballots seem likely to tip the delicate balance of the election toward Gregoire, who claimed 58 percent of the vote in Kings County.

Republican Dino Rossi won the initial election count by 261 votes. Rossi also came out ahead in a mandatory machine recount by 42 votes.

Comments

[choprzrul]

Focusing on the Indonesian citizenship from his childhood, if he cannot produce documentation showing a renouncement of his Indonesian citizenship and oath of allegience to the United States, then this is actually a matter for INS. He is actually an illegal allien subject to deportation without verifiable citizenship documentation. I would also think that his current US passport would have been obtained fraudulently if his US citizenship has not been re-established. It would apprear that he skipped the oath and just simply used the COLB from Hawaii to get the passport without informing anyone that he is actually an Indonesion citizen.

Should we all be sending requests to INS requesting investigation and deportation?