Judge blocks count of disputed ballots

TACOMA — A Pierce County judge yesterday sided with Republicans and blocked King County from counting hundreds of disqualified ballots in Washington's absurdly close race for governor.

The ruling was at least a temporary victory for the state Republican Party, which sued to stop King County from tallying 735 ballots the county says were mistakenly rejected by election workers.

With Republican Dino Rossi clinging to a tiny lead over Democrat Christine Gregoire, the fate of King County's disputed ballots could easily determine the outcome of the race.

Soon after Pierce County Superior Court Judge Stephanie Arend issued her ruling before a packed courtroom, the state Democratic Party appealed the decision to the state Supreme Court.

Supreme Court Chief Justice Gerry Alexander indicated the court will likely take up the case next week. King County plans to file its own appeal on Monday.

Arend said her ruling was bound by a state Supreme Court ruling earlier this week that said ballots should be included in a recount only if they had been included in previous counts.

"It's clear to me that it's not appropriate to revisit the decision whether ballots should or should not be considered," said Arend, adding that she knew her decision would likely be appealed.

But Democrats argued the state law gives county canvassing boards, which decide ballot eligibility questions, the power to correct errors.

"This was not a good ruling," state Democratic Party Chairman Paul Berendt said. "Local canvass boards have the ability to make sure every legitimate vote is counted. Hundreds of people have had their rights to vote set aside."

The Democratic Party went to court in Pierce County because it is neutral ground in this case.

It's unclear exactly what yesterday's ruling means for a statewide manual recount that had been scheduled to wrap up next week.

Dean Logan, head of King County elections, said it could delay a final count in the county. The county expects to announce the vote totals, minus the disputed ballots, by Wednesday.

It appears certain the race will be decided in King County, which accounts for nearly a third of the state's voters and is the only county that has not completed the latest recount. This is the third time the votes have been tallied in the state's closest-ever governor's race.

Rossi won the Nov. 2 election by 261 votes, which triggered an automatic statewide recount. After the first recount left Rossi with a 42-vote lead, Democrats requested the second recount, which involves counting all ballots by hand.

After two more counties — Pierce and Spokane — completed their hand counts yesterday, Rossi's net gain in the recount was down to just eight votes, from 80 votes earlier in the week. Combined with the 42-vote lead from the first recount, his effective lead over Gregoire is now 50 votes.

Logan said he was disappointed by Arend's ruling because he firmly believes it was an error by his office that the ballots weren't counted.

The ballots came to light last weekend after King County Council Chairman Larry Phillips spotted his name on a list of disqualified voters. Soon after he alerted Logan, elections officials discovered hundreds more absentee ballots they say were mistakenly rejected.

County officials say the ballots were disqualified because election workers didn't find images of those voters' signatures in the computer system, and the workers failed to follow proper procedure by looking for the signatures on registration cards in the county's paper files.

"These are valid registered voters who signed their ballots and got them in on time," Logan said. "What weighs heavily on me is my administration made the error. The voters did nothing wrong."

Gregoire echoed that sentiment.

TOM REESE / THE SEATTLE TIMES Vote-count observers listen to King County Elections Superintendent Bill Huennekens (with back to camera) yesterday. From left: Republican observers Jeff Cox and Don Ward, Democratic observer Aviva Palmer, and Republicans Diane Tebelius and Dan Brady.

"These are legitimate ballots cast by real voters," she said in a statement. "The only reason they haven't been counted is because of a mistake by King County. That mistake should be fixed."

Phillips, who attended yesterday's court hearing, said, "Through no fault of my own, we have just been disenfranchised. It's a travesty."

But Republican leaders, who have called the 735 ballots "suspicious," weren't sounding very sympathetic.

"It doesn't matter if King County made an error," state Republican Party Chairman Chris Vance said. "It's too late. You can't go back now."

Another voter whose ballot was rejected, Jack Oxford of Enumclaw, attended the hearing and was outraged that his vote might not count.

"I'm very distraught," said Oxford, who worked as a voter registrar in the 1980s. "I'm proud to be an American citizen, and the right to vote is critical to our success as a nation."

The county this week repeatedly revised the number of ballots involved in the snafu. Initially, officials said there were 561, but by yesterday that total had grown to 723 — and workers were still trying to track down 12 more ballots.

Several hours before Arend's ruling, King County election workers opened a locked gate to a chain-link cage in a warehouse and found 150 of the 735 absentee ballots they said were wrongly disqualified from two earlier vote counts.

Before election workers opened the warehouse cage yesterday, King County Elections Superintendent Bill Huennekens told political-party observers and news crews that his office had made "a serious mistake" by failing to count the ballots.

"But we're going to do the right thing for the citizens of King County," Huennekens said, "and get these votes retrieved to present them to the canvassing-board meeting on Monday."

The canvassing board was supposed to meet Monday to begin reviewing the 735 ballots and deciding which to count. But Arend's ruling will prevent that from happening.

A member of the King County elections staff looks through another box of ballots yesterday.

Huennekens, who personally found 573 of the disqualified ballots in a tray inside the warehouse cage earlier in the week, said he didn't realize at the time that he had missed a second tray that contained names beginning with A, B and C.

During yesterday's hearing, Republicans argued that King County was trying to count new ballots, not those that had already been counted.

Attorney Harry Korrell, who argued the case for the Republicans, said, "King County has to stop finding new ballots it wants to count. They've been rejected. A decision has been made."

But the Democrats argued that these are valid votes that King County mishandled.

"The Democratic Party has been fighting for six weeks to make sure that all ballots are counted," said David Burman, attorney for the Democrats, acknowledging that his party's motives "are not pure."

Still, he said, voters deserve to have their votes counted.

Republican Secretary of State Sam Reed yesterday backed King County's argument. Thomas Ahearne, a lawyer representing Reed's office, said in court that the office has interpreted state law the same way King County has.

Reed earlier this week had opposed a Democratic Party lawsuit asking the state Supreme Court to order all counties to reconsider their rejected ballots. The court rejected the lawsuit. Reed argued that county canvassing boards should be able to make their own decisions in accordance with state law.

Yesterday, his representative made a similar argument, this time agreeing with Democrats that King County should have the power to rectify its mistakes.

"The recount statute does not require wholesale reconsideration" of rejected ballots, Ahearne said, but "it does grant each county canvassing board the discretion to recanvass selected ballots if there are discrepancies or inconsistencies ... that is what King County did."

State Elections Director Nick Handy said other county canvassing boards have reconsidered ballots and added them to the first or second recounts in the governor's race. King County's case is extreme in the number of ballots involved, but Handy said it is the same legal principle.

In another issue before the court yesterday, the Democratic Party asked that the Republicans be required to post the same $730,000 bond that it had to pay to authorize the hand recount.

Under state law, if the recount overturns a race, the party will get its money back. The Democrats argue that the disputed ballots would inevitably lead to a Gregoire victory, so they shouldn't have to pay if the Republican lawsuit prevents those votes from being counted.

Arend set a hearing Monday on that issue.

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com. Staff reporter Keith Ervin and The Associated Press contributed to this report.