The Flag of the World

Today is the last day of arguments in the vote contest trial in Wenatchee. Judge Bridges will make his ruling on Monday. So far, it sounds like things have gone quite well for the Republicans–though it should be kept in mind that the hill they have to climb is so steep that “quite well” is pretty much the minimum they can afford.

Something that has become clear, to me, at least, in paying attention to the trial, is that the best early public analysis of the situation was done by yours truly way back in January. I wrote then that the Foulkes vs. Hays case, which set the precedent for a successful election contest and revote, is “startlingly similar” to the current situation, and that “if the law is applied consistent with Foulkes, Rossi will get the revote he deserves.” With the ruling just days away, this argument is clearly the Republicans’ main one, and their best hope for a victory. I wrote then:

In both cases, negligence by election officials clearly led to an increase in votes for the candidate initially awarded the office. The fact that in 1975 those extra votes came from fraud, and that today they came directly from the negligence itself is moot. The law clearly draws no distinction between fraud and negligence for the purposes of an election contest, and the Supreme Court decision clearly stated that it was the negligence, not fraud, that led the the revote.

In both cases, the actual total increase in votes is unknown and unknowable. This was the case in 1975 because document examiners could not agree which votes had been altered and which had not. This is the case today because it is completely unclear how many votes Gregoire gained from the 55,000 illegally modified ballots, the 1,800 (net) voterless ballots and the 348 unverified provisionals. But again, the reason for the situation does not change the situation, which is essentially the same as it was 30 years ago.

The facts have changed a bit since then–almost all in Rossi’s favor–but the situation remains the same.

This was first made clear to me at the beginning of the trial, when Dale Foreman, in his opening statement, asserted “Your honor, this case is the Foulkes case.” It has become more clear that this is the case as Judge Bridges has made it pretty clear that his main concern is with the negligence of King County elections officials, as evidenced by his questioning from the bench and other comments. In some earlier rulings a couple months ago, he also referenced Foulkes “more than the respondents [Democrats] would probably prefer.” Additionally, compare my statements from 5 months ago to Attorney Shaun Newman’s statement here (in the update) just yesterday.

I suspect that, come Judge Bridges’ ruling Monday, he will again mention the Foulkes case more than the Democrats would prefer, and rule in a similar fashion. We shall see.

Posted by Timothy Goddard at 8:38 am 6/3/2005 | Rossi v. Gregoire

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