Judge might void election, won't order new one

WENATCHEE — The Republican court challenge to the election of Gov. Christine Gregoire will move toward trial after Judge John Bridges yesterday rejected Democratic motions to dismiss the case or move it to the Legislature or the state Supreme Court.

It goes forward, though, minus most of the defendants in the case. Bridges dismissed all the state's counties and their auditors from the lawsuit.

Bridges said in Chelan County Superior Court that allegations in the lawsuit filed by Republican candidate Dino Rossi and Republican voters, if proved at trial, would be sufficient to overturn the election. And he denied a Democratic motion to limit any challenge to issues of fraud and illegal votes, saying misconduct or neglect by election officials would also be sufficient grounds for setting aside the election.

"This case should go forward, at least at this point," Bridges said.

But the judge said even if Republicans prove their case, he won't give Rossi what he has said he wants from the court: a new election.

Democrats argued he didn't have that power, and Bridges agreed.

Attorneys for the state Democratic Party said after yesterday's hearing that the only remaining option if Republicans prove their case would be for Bridges to declare Rossi the winner and remove Gregoire from office. But Rossi has said all along that he would only take office if he won a second election, and he does not want a judge to declare him the winner.

But Bridges dismissed the remedy requested by Rossi. Still remaining in the lawsuit is Rossi's call to have the judge nullify the November election. That, Republicans say, would create a vacancy in the office that could be filled by a special election ordered by the Legislature.

That's one of several areas where Republican and Democratic attorneys took different messages from Bridges' rulings from the bench.

Both sides predicted the other would appeal some of Bridges' rulings.

"We're dancing and they're crying," said Republican Party attorney Mark Braden. "I didn't hear us lose anything."

Said Democratic Party attorney Jenny Durkan: "We got everything we wanted."

Democrats lost their motions to have the case dismissed, narrowed or transferred to the Supreme Court. But Durkan said Rossi can't get what he wants — the new election that has been promoted by pro-Rossi groups.

"No revote is possible," Durkan said, "www.revote.org is out of business."

When asked about the series of Democratic motions rejected by Bridges, Durkan said, "Watch who appeals. That'll tell you who got what they wanted."

A major issue that appeared less than settled yesterday was whether Republicans would have to show that each illegal vote they find was cast for Gregoire and that they can find enough to erase her 129-vote victory margin.

Democrats argue that that's the standard set in law. Republicans have said they only need to show there were enough illegal votes to make the true results of the election unknown.

Bridges said that at least at this point in the case, it is "sufficient to state generally" that there are enough illegal votes to cast doubt on the true outcome of the election.

But the judge cited a 1912 state Supreme Court case often mentioned by Democrats. In that case, the court found that if it is unknown which candidate received an illegal vote, "it must be treated as a legitimate vote."

Bridges also said it "may be problematical for petitioners to ultimately prevail on a theory or a cause of illegal votes."

Republican attorneys say they don't take any of that to mean they have to prove, for example, who got the votes of the hundreds of felons they allege cast ballots in November.

In fact, attorney Rob Maguire said Republicans could argue that illegal votes should be apportioned by the same split as the vote in a specific precinct, broken down between Rossi and Gregoire.

Bridges heard arguments on a number of motions yesterday and ruled quickly from the bench.

"I read a lot of pages in the last two weeks; until my brain felt like mush," he told the attorneys.

Durkan told the judge his ruling to keep the case alive in his court was a "historic event."

Bridges seemed to want to tread lightly.

He said it is clear that a lot more election contests have been rejected than have succeeded because there are well-accepted reasons why elections should not be overturned.

"Do we as voters and as constituents and candidates want to engage in what one judge referred to as seasons of discontent commencing the moment after the polls closed on election day?" Bridges asked.

The case will get easier to administer for Bridges and his overworked court staff. Yesterday, he dismissed from the case the remaining counties (several were dismissed earlier), their auditors and King County Elections Director Dean Logan. That leaves the secretary of state's office as the main respondent.

Yesterday, attorneys for counties including King and Pierce told Bridges that Republicans had not shown why local officials needed to be in the case.

Bridges agreed and referred to the cumbersome process of dealing with scores of attorneys in the courtroom by telephone.

"I can't see where their involvement ... is necessarily helpful to the court and probably in the efficient administration of justice they are ... more burdensome," Bridges said.

Republicans had argued that mistakes in counting, including failing to reconcile post-election voter lists, was evidence enough to warrant including counties in their case.

But attorneys for the counties said there was little if any evidence of wrongdoing.

Daniel Hamilton, Pierce County's deputy prosecuting attorney, told Bridges, "There has been no showing that the auditor has done anything wrong in Pierce County, and I think that is probably true for the vast majority of counties."

Republican allegations of errors by the counties remain the heart of the lawsuit. County officials, including auditors and election officials, could still be subpoenaed to testify, and the counties will still be expected to provide information to Republicans as they seek evidence to show the election was flawed.

For the counties, Bridges' ruling means their prosecutors won't have to appear in court representing them as respondents. And they won't be served with the voluminous court documents, which some small-county officials have blamed for crashing their computer systems.

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