'Breathtaking step'

WENATCHEE, Wash. - A lone picketer wearing a cowboy hat and holding a "Re-Vote!" sign stood outside the courthouse here on May 23, his presence screaming small town, small time, small potatoes. The six satellite-dish-equipped media trucks parked nearby for opening day of the two-week trial over Washington state's contested gubernatorial election suggested otherwise.

For once, the big media got it right. This trial, 150 miles east of Seattle, is the 21st century's first major test of whether governors will be elected by dead people, felons, non-citizens, and other illegal voters. As Washington goes, so may go the nation. The state's election last November went from a 261-vote victory by Republican Dino Rossi, to a 42-vote victory in an automatic machine recount, to a 129-vote loss to Democrat Christine Gregoire in a hand recount requested and paid for by Democrats.

With each recount, Ms. Gregoire's advantage in highly Democratic King County grew substantially, from 59 percent to 63 percent to 66.6 percent. Republican lawyers are trying to convince Judge John Bridges to remedy a crisis of legitimacy by throwing out the muddled results and ordering a revote this November.

Republican attorney Dale Foreman began his opening statement by calling the trial "an historic moment," and went on to explain why: "This election was stolen from the legal voters of the state by a bizarre combination of illegal voters and bumbling bureaucrats. . . . The citizens of this state have lost confidence in the integrity of our election system."

Democrats, meanwhile, urged Judge Bridges to dismiss the obvious election problems as standard, unavoidable discrepancies for an election with 2.8 million voters. "Every election has irregularities. . . . That's not news," Democratic lawyer Kevin Hamilton said in his opening statement. "Election contests should not follow close elections."

Carts stuffed with rows of oversized three-ring binders lined the half-wall separating courthouse spectators from litigants. Some of those binders contained evidence that King County recorded 875 more absentee ballots than absentee voters while leaving 95 more absentee ballots unopened. Other binders documented 1,155 unaccounted-for provisional ballots that managed to sneak through election counting machines without verification.

Placing one such binder on the podium before him, Mr. Foreman produced a death certificate for someone named Jazzy Blue. Though the certificate was dated six weeks before the Nov. 2 election, Mr. Foreman also produced a counted absentee ballot with Jazzy Blue's one-of-a-kind signature.

Proof of such chaos, however, may fall short of Mr. Rossi's painfully high burden. Republicans must produce evidence not only to show that illegal votes outnumber the margin of victory, but also that the subtraction of those votes would necessarily alter the election's outcome. Without the ability to specifically show for whom illegal voters voted, Republicans are employing statistical analysis of the precincts where illegal voting took place. If 100 illegal votes were cast in a precinct that leaned 70 percent Democratic, GOP lawyers argue that Ms. Gregoire should lose 70 votes while Mr. Rossi subtracts 30.

Democratic lawyers call such analysis guesswork. Overturning the election "is a breathtaking step that requires breathtaking evidence," Mr. Hamilton said. "'Could have' is not the standard." Democrats also accuse Republicans of cherry-picking liberal-leaning counties in pointing out illegal votes. If the statistical analysis were applied to all counties with illegal votes, Democrats say, Ms. Gregoire would remain victorious.

Judge Bridges patiently listened to both sides as they argued whether partisan fraud from election workers could be used to explain illegal votes. He scowled after Mr. Foreman noted a two-vote error from one polling location and commented, "Not bad for government work." But no matter Judge Bridges's decision, the case likely will be appealed to the state Supreme Court.

Despite the continuing legal battle, Ms. Gregoire has occupied the governor's seat since her inauguration in mid-January. She recently completed an ambitious legislative session, signing into law millions of dollars of tax hikes. The state Democratic Party has spent roughly $2.2 million since the Nov. 2 election on lawyer fees and recount costs, and state Republicans have incurred similar expenses in legal fees alone.