Judge sides with GOP over election lawsuit

WENATCHEE — Chelan County Superior Court Judge John Bridges yesterday declined to clarify his latest series of rulings in the governor's election lawsuit, siding with Republicans who said his verbal rulings were clear enough. At least for now.

Bridges signed an order drafted by Republican attorneys that does little more than tally motions he granted or denied at a hearing Feb. 4.

Democrats wanted Bridges to sign an order giving specifics on key issues in the case, particularly whether Republicans would have to show in court which candidate got the illegal votes they allege were cast in the November election.

Bridges declined, saying the "court has explained already its reasoning" in ruling from the bench two weeks ago.

But he said issues raised by Democrats, particularly about standards of proof for illegal votes, need to be addressed in court before a trial begins.

Bridges "invited" attorneys for the two major political parties "to address all of these issues about various burdens and what will be required to be proved." He said he and the attorneys need to "give guidance to each other about how this case is going to proceed, not procedurally but factually and evidentially."

"I think that is important to be done before the actual hearing," Bridges said.

He said it could be three weeks before issues of standards of evidence are settled.

Gubernatorial candidate Dino Rossi and other Republicans filed the lawsuit in January in a move to have the November election nullified and Democratic Gov. Christine Gregoire removed from office.

They allege that illegal votes, particularly by felons, and errors by county election officials have made it impossible to know who really won the election.

Rossi was initially declared the winner of the November election, the closest governor's race in state history. He won the initial count by 261 votes and a machine recount by 42 votes. But after a hand recount, Gregoire was declared the winner by 129 votes.

The judge declined a Republican request yesterday to set a trial date for April 4.

Dale Foreman, a Wenatchee attorney representing Rossi, sought the date, saying, "The sooner we can bring this matter to a conclusion the better for the citizens of the state of Washington."

But Democratic Party attorney Kevin Hamilton said Republicans have been "stonewalling" in response to Democratic subpoenas for information, a part of pretrial discovery. He said it was premature to set the case for trial until those issues are settled.

Bridges agreed.

"I agree with Mr. Foreman, the case needs to be moved along. But it sounds to me like there could be some discovery issues," Bridges said.

Hamilton told Bridges yesterday that the Building Industry Association of Washington (BIAW), the state's homebuilders' lobby, has refused to turn over all of the research it has done on felons who voted in the election. The group, which backs Rossi, has spent months searching voter records for felons.

Hamilton said Republicans have claimed BIAW was working with Rossi's attorneys in preparing the case and the research can be kept from discovery because of attorney/client privilege.

But Tom McCabe, the BIAW's executive vice president, said Democrats have gotten all of the group's felon records. The only thing withheld under attorney/client privilege, McCabe said, were e-mails between one of his attorneys and an attorney for Rossi.

The key issue yet to be settled is what level of detail Republicans will have to show about the illegal votes they say were cast in the election.

Bridges said on Feb. 4, quoting from state law, that "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 declared winner of the election that, if those votes were taken away, would reverse the outcome of the election.

The judge said "it may be problematical for petitioners to ultimately prevail based on a theory or cause of illegal votes." But he said at this point in the case "it is sufficient to state generally" that enough illegal votes were cast.

Democrats said in the order they proposed to Bridges yesterday that Republicans should have to show which candidate got each alleged illegal vote.

Republicans, in a brief filed this week, argued they should need only to show that it "appears" there were enough illegal votes to change the outcome. They said the law uses the word "appears" for a reason and the requirement should not be read to require them to show which candidate got each illegal vote.

"To read the section as requiring a contesting party to show with certainty for whom each and every illegal vote was cast would render the words 'it appears' superfluous," Republicans wrote.

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