WENATCHEE — Judge John Bridges expressed concerns yesterday about the way Republicans want to show whom felons voted for in the 2004 governor's race. But he said he would allow the evidence for now and decide later whether to accept it and how much weight to give it.

Even if he later rules the methodology is scientifically sound, Bridges said yesterday that doesn't mean he has decided that contested elections should be decided by the sort of circumstantial evidence argued by Republicans and their expert witnesses.

"That will be the ultimate decision of the court here at the end of this case," Bridges said.

Yesterday was filled with arguments about whether to allow Republican experts to testify, and then hearing their testimony about how votes by felons and other illegal voters should be apportioned by the same percentage as the total vote in any given precinct.

The political-science professors were the Republicans' last live witnesses in their case for throwing out the election of Democratic Gov. Christine Gregoire. Democrats this morning will ask Bridges to dismiss the lawsuit before they call any of their own witnesses.

Bridges' decision to reserve judgment until later gave both sides something to call a victory as the trial hits its midpoint.

Election trial

Previously

Republican gubernatorial candidate Dino Rossi sued in Chelan County Superior Court in January, seeking to overturn Gov. Christine Gregoire's election. He said illegal votes and errors by election workers made her victory illegitimate.

This week

Rossi's case has gone to trial and is expected to last through next week. Yesterday, Judge John Bridges ruled that he would allow Republicans' statistical analysis of evidence — for now. Today, Democrats will ask Bridges to dismiss the lawsuit as Republicans complete their case.

Ultimately

Bridges could reject the Republicans' claim, or he could nullify Gregoire's election and declare Rossi the winner. Rossi has said he wouldn't accept victory by court judgment, so the ruling could create a vacancy in the governor's office. State law provides for a special election to fill a vacancy. Temporarily, the office would be filled by Lt. Gov. Brad Owen.

Appeal expected

Both sides agree that whatever happens in Bridges' court, the outcome will be appealed to the state Supreme Court.

But equally important yesterday were comments Bridges made about how he sees his role in the historic trial. He made it clear he is purposefully erring on the side of allowing disputed evidence to be introduced. He is building a trial record that he recognizes is certain to be reviewed on appeal, and he doesn't want to do anything that would result in the case being sent back to him.

Bridges knows there is legal history to be made in his Chelan County Superior Court. And it's history that could affect politics and law for a long time.

Democrats have cautioned Bridges that if he accepts a low standard of proof in the case, it would open the door for many more contested elections, perhaps following any close race.

Republican attorney Mark Braden tried to counter that yesterday.

"This is the closest election for governor in American history," Braden said. "I think possibly having a successful contest action once every 200 years is not going to overburden the judiciary."

Bridges, who five years ago presided over a contested mayoral election here, assumes his decision in what is known as Borders v. King County will be used to settle future disputes.

"You need to understand that my focus here is based on the recognition that this is going to happen again, an election like this, because I think a court's ruling needs to be consistent not only with the present but the future," Bridges said.

After hours of questioning and cross-examination of expert witnesses, Bridges seemed to recognize that the attorneys would be taken aback by his decision to allow the evidence while reserving any official decision on whether it meets standards for expert testimony.

"I can imagine how frustrated counsel has been with the court because you don't know me and you come to this court and I start making rulings which I'm sure some of you think are just not supported by any rules of evidence you've ever read," Bridges said.

He said he is driven by the knowledge of the certainty of an appeal and a "desire to make sure the Supreme Court has as large a record as possible, for which they may not thank me, actually."

Trial on TV

TVW public-affairs network is broadcasting live, gavel-to-gavel coverage of the gubernatorial-election challenge in Chelan County Superior Court. Sessions will begin as early as 8:30 a.m. and continue as late as 5 p.m.

Comcast is carrying TVW's trial coverage on Comcast On Demand. Comcast digital-cable subscribers can access the programming at no extra charge. It will be available to digital-cable customers in Western Washington for at least two weeks after the trial.

It's not that Bridges fears being overturned as much as having the case remanded for another trial.

"You need to know that I have enjoyed having you folks in front of me immensely," he told the attorneys. "I have already learned so much from the professors today.

"But I don't want to see any of you again."

Democrats had wanted Bridges to exclude the Republicans' experts. The judge told Democratic Party attorney David Burman that he recognizes his decision may not fit with the letter of state rules of evidence, but he said, "I think it is the only practical way that we can proceed."

The lawsuit was filed by Republican gubernatorial candidate Dino Rossi and other Republicans in January.

Rossi claims that illegal votes by felons and others, along with errors, neglect and fraud by election officials illegally robbed him of the governor's office.

Rossi won the initial count of the Nov. 2 election and a machine recount. But a third count, by hand, gave the election to Gregoire.

Central to the Republican claim has been hundreds of alleged illegal votes by felons and others. The exact number has varied, and last night Republican spokeswoman Mary Lane said the legal team could not give an estimate.

The Republican experts, Anthony Gill, an associate professor of political science at the University of Washington, and Jonathan Katz, a professor of political science at the California Institute of Technology, told Bridges that proportional deduction is the best way to estimate how many illegal votes went to each candidate.

Katz said that "given the nature of the secret ballot," it's a "difficult statistical problem" to say with certainty who voted for whom.

Democrats said the method is flawed because it doesn't accurately determine where the votes went.

"There is huge room for error when you deduce or infer something about individual behavior from aggregate behavior," Burman said. "You cannot simply assume individuals are like the place they live or will behave in the same way as some smaller unit."

Democrats also attacked the Republican proposal because it is based on a list of alleged illegal votes that they say was "cherry-picked" from Gregoire strongholds, mostly in King County. They say that when a fuller list of illegal votes is analyzed, Gregoire remains the winner.

A Seattle Times analysis published Sunday showed Gregoire the winner if both parties' lists of illegal votes were subtracted from each candidate using the Republicans' proposed method of proportional deduction.

Democrats say, though, that the best way to determine how a felon voted is to use other demographic information, such as age or gender or campaign polling information.

An expert witness for the Democrats, Christopher Adolph, a University of Washington assistant professor of political science and member of the Center for Statistics and the Social Sciences, said he had another method for finding out how a felon voted.

"I would recommend simply asking them," Adolph said under cross-examination by Braden, the Republican attorney.

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