Chelan County Superior Court Judge John E. Bridges presides over the challenge to the 129-vote election victory of Democratic Gov. Christine Gregoire over Republican Dino Rossi, and he sides neither with Gregoire nor Rossi but with Secretary of State Sam Reed. This pattern has emerged over the past few months and was true again on Monday, May 2, as Bridges issued his latest rulings in preparation for a trial that starts on May 23. "We are trying to steer a middle course," says Assistant Attorney General Jeff Even, who is representing the secretary of state in court. "So far, we have been persuasive to the judge." Eventually, Bridges will, however, have to decide whether Gregoire's election is legitimate or not. On this key question, the secretary of state leans Gregoire's way. Will the judge follow?
After months of effort by top legal teams, the Republicans, who sued the state and most of the state's 39 counties, have come up with around 1,000 illegal votes—mostly by felons in King County—out of more than 2.6 million votes cast. They have turned up no evidence of organized fraud. When you consider how much money, time, and talent has gone into the effort, it is an unimpressive number. Yet Gregoire's margin of victory was so small that the Republicans' lawsuit is very much alive.
At Monday's hearing in Wenatchee, both Democrats and Republicans hoped to establish the upper hand in the upcoming trial, but Bridges held both sides in check. He made very clear again that the bar is high, that Republicans cannot simply show that illegal votes exceed Gregoire's 129-vote margin of victory to justify a ruling that the Nov. 2 election should be voided. (The judge first said so at a previous pretrial hearing, but Republicans have chosen to ignore this legal requirement because it hinders their effective public relations effort to discredit Gregoire's victory.) Instead, Bridges said, Republicans must show that illegal votes sufficient to erase Gregoire's win were actually cast in her favor.
Democrats argued that Republicans should be required to have illegal voters testify on the witness stand and disclose whom they voted for. Republicans prefer a complicated statistical analysis that would deduct a percentage of illegal votes from each candidate. On Monday, Bridges ruled that he will allow Republicans to present their statistical methods and results at trial, but he didn't guarantee that he would buy it, and the judge left the door open for Democrats to challenge the methodology of that statistical analysis.
Republicans were overjoyed that Bridges didn't kill their statistical analysis outright and admitted that if he had, their case would have been dead—in Chelan County Superior Court, anyway. Both sides agree the ultimate outcome of the election of 2004 will be determined by the state Supreme Court, whatever the outcome of the trial in Wenatchee.
Democrats said they have some pretty hefty evidence of their own that will show that hundreds of illegal votes were cast in counties that favored Rossi. The GOP tried to prevent the Democrats from presenting some of those "offsetting" illegal votes, but Bridges ruled that both sides would be allowed to present evidence of unlawful voting.
Bridges also ruled that Republicans and Democrats must present the best evidence available that an illegal voter actually voted. He said the Republicans' preferred shortcut of presenting administrative bookkeeping used by elections officials, called "voter crediting," would be insufficient. Both sides will have to use copies of poll books or absentee- ballot envelopes to show that allegedly illegal voters signed their names. Republicans and Democrats later claimed they were fully prepared to do so.
In each of these four rulings, Bridges followed the recommendations of the secretary of state. "The bottom line is the big winners today truly are the voters," Reed's attorney, Even, said after the hearing. Reed is a defendant in the lawsuit because he is Washington's chief elections officer. Reed, a moderate Republican, is in the awkward position of defending the state's management of the election, but he also must uphold the rights of citizens to challenge the results in court.
In briefs filed with the court, Even writes, "Washington courts presume the certified results of an election to be valid unless the contrary is clearly established." The brief continues, "Public policy requires that courts recognize every reasonable presumption in favor of election results, so that the stability of democratic government is not called into question by insubstantial contest lawsuits." Further on, Even makes clear that if the election is successfully proved invalid in court, the judge should order a new election or declare Rossi the winner.
If Judge Bridges continues to find Even's arguments convincing, the Republicans will be allowed to make their best case for overturning the governor's election, but the burden of proof will be very high. "An election contest is not supposed to be easy," says Even, "but it is supposed to be possible."