Judge allows GOP's statistical analysis for now

WENATCHEE — Judge John Bridges this morning said he would allow Republicans to offer statistical analysis to show how illegal voters cast ballots in the November governor's election.

In Chelan County Superior Court, Bridges denied a Democratic Party motion to exclude the evidence, saying he did not see anything in law or court precedent that would prohibit the use of expert testimony to show how illegal votes were cast.

But Bridges said he was not yet accepting the statistical analysis as valid for the trial set to begin May 23. He said the Republican evidence is subject to a separate hearing where Democrats can challenge its scientific value.

On another issue, Bridges sided with Democrats, saying he would allow them to introduce evidence of election errors that benefited Rossi. Republicans had made a motion to prohibit Democrats from introducing evidence of any of those "off-setting errors."

Republican Party Attorney Rob Maguire said Democrats were trying to "sandbag" and had been "hiding the ball" by not disclosing earlier that they would present evidence of errors that favored Rossi.

The judge said that since the election contest law requires illegal votes to be subtracted from each candidate, each side must have the chance to present evidence. And he said he didn't think Democrats were sand bagging.

Republican gubernatorial candidate Dino Rossi filed the election lawsuit in January claiming that illegal votes and mistakes by election officials polluted the results of the November governor's election. He asked that the election be overturned and Gov. Christine Gregoire removed from office.

Republicans want to be able to use what they call proportional deduction. They want to use expert testimony to show that illegal votes by felons and others in any given precinct should be apportioned between Rossi and Gregoire at the same rate they won the overall vote in that precinct. The illegal votes would then be deducted from both candidates' totals.

"You have to permit the system to appear to be fair and let us put forward the evidence," Republican Party attorney Mark Braden told Bridges.

He said the evidence is routinely accepted by courts in voting rights and redistricting cases.

Democrats argued that Republicans should be required to prove how each illegal vote was cast, either through testimony by the voters or by factoring in demographic information about each individual voter.

Democratic Party Attorney David Burman told Bridges that the Republican plan relies on chance and leaves "a great potential for unproductive sour grapes."

Burman said proportional analysis that "decides something by chance is not fair to the voters and is not consistent with the statute."

"They have to be certain to overcome the voters' apparent choice as decided by the election and the recount," Burman said. "Mathematical chances are not good enough."

Bridges began the day by denying the ACLU's request to file a "friend of the court" brief on the issues of felon voters. The Washington branch of the American Civil Liberties Union had filed the brief. Bridges said he could not find a precedent for allowing a friend of the court brief in a lower court trial.

He also granted a Democratic motion to bar evidence of two votes cast by non-citizens. Republican Attorney Rob Maguire said Republicans agreed the technical reading of the law meant that the issues should have been raised before the election.

In another key ruling, Bridges said he will not accept counties' voter-crediting records as evidence that someone voted in November.

In granting a Democratic motion, Bridges said that any party alleging illegal votes will have to produce in court a copy of the voter's signature in a polling place book or on the envelope of an absentee or provisional ballot.

He said crediting is a "post-election administrative exercise" and "does not bear upon the authenticity of election results."

Bridges denied motions from both parties regarding the burden of proof that will be required at trial to show illegal votes had been cast by felons. But he set a standard much more to the liking of Democrats.

Republicans said it was enough to show a voter had been convicted of a felony and that there was no evidence in the court file that the felons' voting rights had been restored.

But Bridges said Republicans will have to present "clear and convincing" evidence that a felon voted, a higher standard than Republicans had hoped for.

Bridges also set out six standards, similar to what Democrats had proposed, that will have to be shown for the court to consider a vote illegally cast.

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