A long list of felons who voted is one of the things Republicans have been looking for in their court challenge to the election of Gov. Christine Gregoire.

There is no doubt that it's illegal for felons to vote unless a court has restored their voting rights.

And the state law that sets out a process for having a judge set aside an election specifically mentions a felon vote as an "illegal vote," one of the key pieces of evidence in contesting an election.

In the lawsuit Republican candidate Dino Rossi and his party filed Jan. 7 to contest Gregoire's election, votes by felons were included in a list of "errors, omissions, mistakes, neglect, and other wrongful acts" the party cited. Republicans say those make it "impossible to determine which candidate received the greatest number of legitimate, valid, legal votes."

That's key to the Republicans' legal strategy. Rossi attorneys don't think they need to show that felons voted for Gregoire and contributed to her victory margin, just that the illegal votes cast doubt on the true vote count.

Democrats disagree and point to a state law, which has this to say about how many illegal votes are needed to have an election set aside:

"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 there from the illegal votes that may be shown to have been given to the other person."

In other words, a challenger has to find enough illegal votes cast for his opponent to show he is the rightful winner.

But Republicans say their argument is bolstered by a 1983 state Supreme Court ruling on a disputed City Council election in Gold Bar.

That case involved voting by nonresidents. Without determining which candidates they voted for, the court cited evidence that 21 people had voted improperly. Since three races were won by 21 votes or fewer, the Supreme Court overturned a lower court's dismissal of the case and ordered a trial, saying the challengers had "offered evidence which, if true, would demonstrate that the election results would have been different. "

To help Rossi, Republican supporters have been combing voter rolls for weeks looking for potential felon voters. In court last week, Republicans filed an affidavit claiming they have the names of 37 felons who illegally voted.

But Democratic Party attorney Jenny Durkan said it's important to look at a subsection of the law that says improperly registered voters had to be challenged before Election Day.

"The reason felons can vote is they are improperly registered," she said.

And if a judge disagrees, ruling that felons' ballots are indeed illegal votes, Durkan said the court will want to know whom the felons voted for.

That, she said, will create a courtroom spectacle with a parade of felons being compelled to testify about their own illegal acts. She said a judge would likely have to read each felon / witness his or her Miranda rights because admitting to voting illegally would be an admission of another crime.

Rossi spokeswoman Mary Lane said Democratic arguments are just an attempt to discount the importance of illegal votes.

"Under their logic you could be up to your eyeballs with fraud and you couldn't do anything about it," she said.

David Postman: 360-943-9882 or dpostman@seattletimes.com