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January 18, 2005
..pushing an elephant up the stairs....
I recently completed my second interview with an attorney in hopes of gaining a greater understanding of the legal (state statute) issues involved in the Dino Rossi attempts to unseat Washington Governor Christine Gregiore.
As I understand it, here's the basics:
There are five legal reasons that an election in Washington State can be contested (RCW 29A.68.020):
1. For misconduct on the part of any member of any precinct election board involved therin.
The key word here is "misconduct". Misconduct generally means an affirmative action to do something wrong. In other words there has to be intent to wrong.
2.Because the person whose right is being contested was not at the time the person was declared elected eligible to that office.
The person contested in this case is Gregiore. This means the election can be contested if she was ineligible for the office of Governor of Washington.
3. Because the person whose right is being contested was previous to the election convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person's civil rights restored after the election.
Or in layman's terms..a convicted felon who hasn't had their civil rights restored after serving their time.
4. Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so.
Or bribery to a voter or election officer.
5. On account of illegal votes.
I'm reasonably certain that #2 and #3 can be rejected on their face.
#1 involves misconduct on the part of election officials. As I understand it, Rossi must prove that election officials deliberately mishandled the election in some way.
#4 involves bribery. Rossi will have to prove that Gregiore was bribing voters or election inspector/judge(s) for the expressed purpose of tipping the election to herself. At first I thought this might be an absurd issue. But apparently it isn't. The Republicans probably have private investigators combing through every event, fundraiser and meeting Gregiore was involved in to see if anything exchanged hands. I'm told that even three cent election pins could be brought as cause but probably dismissed as unreasonable by the judge. My guess is that there would have to be a pretty high threshold for this one to be met.
#5 involves illegal votes. There are specific criteria within Washington State law for a vote to be considered illegal. If Rossi can prove that some people voted illegally, he's likely out of luck, however.
If illegal votes are involved, several other statutes come into play.
First is RCW 29A.68.110:
No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person's legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
As I've had this explained to me (twice), it's not sufficient for Rossi to just find 130 illegal votes. He has to find 130 illegal votes that went to Gregiore. And for this statute to be met, Rossi must present all illegal votes that went to him as well as the ones that went to Gregiore. Once those votes are subtracted from both sides, whoever has the most votes would prevail.
However, there's another "hitch in the giddy-up" under the "Illegal Votes" heading:
Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.
29A.68.820 is procedural. It uphill battle lies with 29A.08.810:
Registration of a person as a voter is presumptive evidence of his or her right to vote at any primary or election, general or special. A person's right to vote may be challenged at the polls only by a precinct judge or inspector. A challenge may be made only upon the belief or knowledge of the challenging officer that the voter is unqualified. The challenge must be supported by evidence or testimony given to the county canvassing board under RCW 29A.08.820 and may not be based on unsupported allegations or allegations by anonymous third parties. The identity of the challenger, and any third person involved in the challenge, shall be public record and shall be announced at the time the challenge is made.
Challenges initiated by a registered voter must be filed not later than the day before any primary or election, general or special, at the office of the appropriate county auditor. A challenged voter may properly transfer or reregister until three days before the primary or election, general or special, by applying personally to the county auditor. Challenges may also be initiated by the office of the county prosecuting attorney and must be filed in the same manner as challenges initiated by a registered voter.
In a nutshell, if illegal voters weren't identified three days before the election, it's too late.
So even if they find 130 illegal voters who voted for Gregiore, it doesn't matter. Those voters needed to be contested three days before the election.
Much of this is speculative, of course. The law is subject to interpretation and the judge may decide to give Rossi a sympathetic ear. But even under the most generous of situations, the Republicans are on very shaky legal ground.
There's also apparently a 1975 court case that has set some precedent in the past. But as I understand it in order for that precedent to be relevant, Rossi's people would have to prove that a sufficient number of ballots were illegally tampered with to tip the balance to Gregiore.
Again, legal issues are subject to interpretation. Your mileage may vary.
Posted by Carla at January 18, 2005 01:33 PM