Rossi hard-pressed to prove fraud, says man whose case set precedent

WENATCHEE — Some days in the nearly six-month legal fight over the November election, Kenny Foulkes' name is mentioned by attorneys more often than that of Christine Gregoire or Dino Rossi.

Republicans even are hoping Foulkes can win the governor's-election lawsuit for them.

He'd have to do it from the home he retired to in Spokane, with his failing hearing and news of the trial coming only sporadically when he makes a rare trip out or gets someone to bring him a newspaper.

Foulkes, who says he's 80, was a candidate for the Adams County Commission in 1974 in a contested election the state Supreme Court eventually decided. That case, Foulkes v. Hays, is one of two major court decisions that govern election lawsuits.

"I never imagined," Foulkes said yesterday of the staying power of his case. Foulkes is a Republican who was running against Democratic incumbent Gordon Hays to get back on the commission after a loss two years before.

Foulkes won the initial count by 37 votes. But he lost a recount 14 days later by 71 votes. He alleged then, and still believes today, that someone altered ballots between the two counts.

"They got a couple of crooks to put some new votes in," he said.

The ballots were stored in locked bags in a vault. But the keys to the bags were in the locks.

The local judge ordered a new election. He said that even though there was no proof that Hays or his supporters had anything to do with the altered ballots, leaving the keys in the locks was "neglect of duty."

Hays appealed, but the Supreme Court sided with Foulkes.

Justice Robert Utter wrote in the unanimous opinion there was no need for Foulkes to show a "smoking gun" — proof of who altered the ballots — because of the evidence of fraud. In fact, the number of altered ballots was less than the margin of victory. But, the court wrote, "the irregularity was such that the actual result of the voting could not be ascertained."

A new election was held the next year, and Foulkes was elected.

Republicans want Chelan County Superior Court Judge John Bridges to use the Foulkes standard. But he has said that they do not have a valid fraud claim and must prove that Rossi would have won if it were not for errors and illegal votes.

Foulkes wishes his case would make the difference. He's a Rossi supporter, but thinks his precedent may not help.

"It's a tough one to prove because they may not be able to prove fraud like me," Foulkes said.

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