Borders et al. v. King County et al.

FOR THE PETITIONERS:

FOR THE DEMOCRATIC CENTRAL COMMITTEE:

FOR THE SECRETARY OF STATE:

FOR SNOHOMISH COUNTY:

THE COURT: Counsel, before I begin this morning, there's two matters I'd like to take up. One has to do with the intervenor's motion to strike the testimony of Mr. Benson which I received late last week and a response probably on Friday. Counsel, unless you want to argue that, I'm going to deny that motion because I want to get to the merits of the case, so I'll note that for the record. And, counsel, the second matter I'd like to address is what I understand from Madam Clerk is a ten-day waiting period in the clerk's office to disgorge the transcript of these proceedings to be sent up to the Court of Appeals. And if you folks want that transcript to go faster than that ten-day waiting period, you'll need to agree or stipulate that it can go as soon as it's received if you folks are going to appeal. So if you will talk to each other and Madam Clerk about that, I certainly would appreciate it.

MR. HAMILTON: Thank you.

THE COURT: I have some introductory comments I'd like to make and the first is this, for counsel particularly. I want to note for you lady and gentlemen that nothing I say this morning should be interpreted as a criticism of either you or your clients. Secondly, I have been asked in closing argument to send a message. I'm going to decline that invitation. This Court is not in a position to fix the deficiencies in the election process that we heard about in this courtroom over the past nine days. However, the voters of this state are in a position to demand of their executive and legislative bodies that remedial measures be instituted immediately. And clearly, the evidence here suggests that the problems require more than just constructing new buildings and hiring more staff.

Mr. Logan in his testimony in court and, more particularly, in his deposition testimony referred to the culture he found when he assumed the responsibilities of the Director of Elections in King County. Almost anyone who works in state or local government knows exactly what this culture is. It's inertia. It's selfishness. It's taking our paycheck but not doing the work. It's not caring about either our fellow workers or the public we are supposed to serve. It's not taking responsibility. It's refusing to be held accountable. And so it is the voters who should send the message.

Third, both you and I can take some comfort from the knowledge that soon the ladies and gentlemen of our state Supreme Court will review what I've done, what I haven't done and my decision in this case. They are exceedingly bright and diligent and I can assure you that they will utilize their collective wisdom to render a just decision in this case. And, fourth, extraordinary efforts are in place to make it easier to vote but, unfortunately, I fear that it will be much more difficult to account for those votes in the future. Counsel, I am now prepared to make the necessary Findings of Fact and Conclusions of Law in this case and I, unfortunately, do not have a spoonful of sugar for either you or your clients with respect to this decision.

The case which comes before the Court this morning is entitled Borders versus King County. It is Chelan County Cause Number 05-2-00027-3. With respect to this case, the Court will now make its Findings of Fact. The general election for the Office of Governor of the State of Washington was held on November 2nd, 2004. The gubernatorial candidates were Christine Gregoire, Democrat; Dino Rossi, Republican; and Ruth Bennett, Libertarian. On November 17th, the counties completed their initial tabulation of votes and out of the over 2.8 million votes counted, 261 votes separated the two leading candidates, Christine Gregoire and Dino Rossi, with Mr. Rossi in the lead. This is shown by Exhibit 12,001 admitted into evidence. Because the margin separating the candidates was less than one-half of one percent of the total votes cast, the Secretary of State ordered the mandatory recount required by RCW 29A.64.021. The Secretary decided to conduct the mandatory recount as a machine recount. On November 30, after receiving certified recount returns from all 39 counties, Secretary Reed announced the result of the mandatory recount which indicated that Mr. Rossi's lead was 42 votes. Exhibit 12,002. On December 3, the Washington State Democratic Central Committee requested a hand recount pursuant to RCW 29A.64.011. On December 23, the last of the 39 counties certified the manual recount results in their jurisdictions. On December 30, Secretary of State Sam Reed announced the result of the manual recount and declared that Christine Gregoire was the winner of the 2004 gubernatorial election by a margin of 129 votes. Exhibits 12,003 and 12,004 admitted in this case. Ms. Gregoire received 1,373,361 votes. Mr. Rossi received 1,373,232 votes and Ms. Bennett received 63,456 votes. The total write-in vote equaled 2,618 votes. The grand total was 2,812,675. Secretary Reed delivered the certified county returns to the Speaker of the House of Representatives on the first day of the new legislative session, January 10, 2005. On January 11, 2005, the legislature voted to accept the returns. Pursuant to Article III, Section 4 of the Washington State Constitution, the Speaker of the House of Representatives and the President of the Senate declared Christine Gregoire duly elected as Washington's governor and presented Governor Gregoire with a certificate of election dated January 11, 2005. On January 7, 2005, the Rossi for Governor campaign and seven voters, Timothy Borders, Thomas Canterbury, Paul Elvig, Maggie Ferris, Tom Huff, Edward Monaghan and Christopher Vance, filed a petition in this Court contesting the issuance of a certificate of election to Christine Gregoire as Governor of Washington.