Rejected ballots take center stage

By David Postman and Andrew Garber
Seattle Times Olympia Bureau

HARLEY SOLTES / THE SEATTLE TIMES King County elections worker Bob Rittenhouse moves ballots yesterday in South Seattle. The ballots were headed to a building at Boeing Field for a hand recount.

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OLYMPIA — The race for governor has become a battle over whether thousands of ballots disqualified during the first two tallies will be counted. It is the central issue in a case the state Supreme Court says it will hear next week.

Democrats backing Attorney General Christine Gregoire want the court to compel county canvassing boards to reconsider more than 15,000 ballots they previously rejected.

Republicans backing Dino Rossi, who was certified as governor-elect, say no new ballots should be added to the nearly 3 million counted twice. After the first count, Rossi was ahead by 261 votes, a lead that shrank to 42 votes after a statewide machine recount.

The high court has agreed to hold a hearing on the Democrats' lawsuit this coming Monday at 1:30 p.m.

The GOP, in its own court filing yesterday, argued Democrats want to set a "dangerous precedent" by asking courts to "change the rules for an election after it has occurred."

Republicans yesterday cited support for their position from the Attorney General's Office. They pointed to a 1996 memo from then-Secretary of State Ralph Munro saying the Attorney General's Office had advised that a recount should not include previously rejected ballots.

The memo appears to put Gregoire in the awkward position of heading an office that is on record against the position of Democratic Party lawyers trying to help her win the election.

However, Jim Pharris, a senior assistant attorney general, said the office hasn't "expressed a view" on the issue since 1990, before Gregoire was elected. The advice Munro's office was citing "was before her day and certainly nothing she was involved with," Pharris said.

The recount was to begin today. But state elections director Nick Handy has asked counties to wait until tomorrow in the hope the Supreme Court will act on the Democrats' case. Some counties, including King, plan to begin work today by sorting ballots. Counting would begin tomorrow or Friday.

Secretary of State Sam Reed, a Republican, says counties may consider previously rejected ballots under some circumstances, but they shouldn't be ordered to review all ballots.
 
"That limited safety valve for a particularly identified error, however, is not a floodgate requiring the wholesale recanvass of all ballots to see if perhaps any errors with respect to any of the ballots might possibly have occurred," Reed's attorneys said in court papers filed yesterday.

In an interview, Reed said he hopes local elections officials don't reconsider ballots that were rejected.

"The purpose of a recount is to literally recount the ballots that were already counted," he said. "That's why it's called, well, a recount."

Auditors in the state's most populous counties agree. They say they don't think state law allows them to give new life to rejected ballots and they won't do it without a court order.

"I don't see anything in the statute that gives us the ability to go back after the election," said Dean Logan, head of King County elections. "I think the recount statutes are written in a way that contemplates you're only going to recount ballots that were counted in the first place."

Elections officials in Pierce, Snohomish, Spokane and Clark counties, which along with King County account for more than half the ballots cast, agreed with Logan.

Democrats: 'all votes cast' should be included

Democrats are relying on a portion of state law that says "the county canvassing board shall conduct a recount of all votes cast" in a race.

They argue that "all votes cast" includes those rejected by a canvassing board, which they say is ripe for human error.

"Common sense suggests that a hand recount should include the areas where mistake in earlier counts is most likely to have occurred," according to the Democratic lawsuit.

Each county has a canvassing board made up of the local elections official, county prosecutor and head of the legislative body, or their designees.

The boards determine issues such as a voter's intent on a ballot that is not marked clearly and whether someone was registered properly, and they have the final word on signature verification for absentee and provisional ballots.

For example, in Thurston County, the canvassing board rejected 924 of 89,768 absentee and provisional ballots. The vast majority were rejected because the voter was not registered in the county.

A prime concern for Democrats: the absentee and provisional ballots that were disqualified because the signatures did not match the signatures in voter-registration files.

In Thurston County, 60 ballots were rejected for that reason.

King County rejected a total of 2,478 ballots; 1,976 of them were disqualified because signatures did not match.

Of the more than 15,000 ballots that were rejected, at least 3,100 were set aside because signatures did not match, according to a Seattle Times survey responded to by 35 of the state's 39 counties.

GOP: Dems' request

would 'undermine public confidence'

Republicans responded to the Democrats' lawsuit yesterday by filing a petition to intervene in the case.

GOP attorneys say "votes cast" means votes found valid during the initial count or machine recount. They say the state's elections system would be compromised if new votes could be added to the total.

"Adopting such a radical and ad hoc change of the rules after the canvass, the initial count and the first recount is bad law and bad policy," the Republican court filing said. "It will undermine public confidence in the election process, jeopardize passage of future school levies, and throw Washington's election system into pure chaos for this election and every close election to come."

They say Democrats want rejected ballots reconsidered because they are "obviously not impressed with their chances of prevailing in another tabulation of the twice-counted ballots."

Republicans' arguments were bolstered yesterday by the 1996 memo from then-Secretary of State Munro.

"The recount procedure provided for by statute is a mechanical function of re-tallying the ballots cast and accepted as valid by the precinct election officers or the canvassing board during the canvass of the election," Munro wrote. "The decision of the canvassing board with respect to the inclusion or exclusion of a particular ballot during the canvass is not open to question during the recount."

Elections officials in the state's largest counties contend the law doesn't allow them to do what the Democrats want.

Unless a court says otherwise, "ballots that have been previously considered by the canvassing board, and where it was determined they should not be included in the count, will not be included in this manual recount. There is no discretion there," Clark County Auditor Greg Kimsey said.

Pierce County Auditor Pat McCarthy adds that the party is wrong about canvassing boards making mistakes.

"I don't know how they conclude that it is prone to error. It is three human beings making a judicial rendering on questionable ballots.

"I mean, that's what the law provides. There will be occasions where a voter's intent may not be clear. Who should decide? A court of law ... a judge who sits there and does exactly what three people did?"

The Democrats' lawsuit focuses on problems in King County, where Gregoire had her best showing and has the best hope of picking up enough votes to overtake Rossi. And the claims deal mostly with ballots where the signature on the envelope didn't match the signature on file with the county.

A statistical analysis done for Democrats showed that compared with other counties, King County had a rejection rate "greater by many orders of magnitude, precluding any argument that the disparity is due to chance," according to the lawsuit.

David Postman: 360-943-9882 or dpostman@seattletimes.com. Seattle Times staff reporters Steve Miletich, Susan Kelleher and Christine Willmsen contributed to this report.