We will continue to update you on any new information relating to the election contest.

Republicans file new arguments in court case

737 illegal votes confirmed so far

Seattle, WA – Today, our attorneys filed briefs responding to the Democratic motions to dismiss the case before the Chelan County Superior Court.  Attached is a summary of those briefs. 

Also attached is a summary of the confirmed illegal votes we have discovered thus far.  As of this morning, the WSRP has identified 737 confirmed illegal votes cast in the 2004 election and we expect this number to grow in the days ahead.

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Confirmed Illegal Votes Discovered

Summary of Rossi/ Republican briefs filed Jan. 26, 2005

1.         The court has jurisdiction to hear this case

Article III, § 4 of the Washington State Constitution says that “Contested elections for [statewide executive officers] shall be decided by the legislature in such manner as shall be determined by law.”  The Legislature adopted a law, RCW 29A.68, which establishes how election contests are handled.  That law says election contests may be heard by the courts of the state.

The Democratic Party and Christine Gregoire interpret this part of the constitution to mean that the only place for an election contest is in the state Legislature.  But the constitution clearly allows the Legislature to decide the “manner” of contesting elections, and that can include having courts consider them.  The Democrats are ignoring the phrase “in such manner as shall be determined by law.”  The fact that the Legislature passed a law allowing election contests to be heard in court refutes the Democrats’ and Christine Gregoire’s argument. 

Even Democratic legislators agree that courts are appropriate places for this election contest.  Senate Majority Leader Lisa Brown and many other state senators and representatives have said that the Legislature intended for election contests such as this to be heard in court, not in the Legislature.

Additionally, the Legislature has the authority to delegate non-legislative functions, such as presiding over an election contest.  This authority is reinforced by the use of the phrase “in such manner as shall be determined by law” in the constitution.  The out-of-state cases cited by the Democrats involve challenges to legislative elections, not executive ones. 

The 1940 election for governor did not involve an assertion of jurisdiction by the legislature.  A contest petition was filed, and at the joint session to certify the election results a legislator made a motion to refer the petition to a committee for investigation.  The Legislature did not pass the motion.  Declining to investigate a contest petition does not constitute an assertion of exclusive jurisdiction over such actions.

The state Supreme Court has accepted jurisdiction over contests of state executive offices in the past, including a contest of the 1992 auditor’s race and the case in this election filed under the contest statute by the Democrats (where they said the Supreme Court had the authority and the duty to act to provide a remedy).

The argument advanced by the Democrats would require the court to find beyond a reasonable doubt that the election contest statute is unconstitutional.

2.         The case should not be moved to another court

Chelan County and its officials are among the respondents named in this action.  The Chelan County Superior Court is a proper place to hear a case involving Chelan County.  Under Washington law, in a case with multiple defendants, if venue is proper over one defendant it is proper over all.

The election contest statute allows cases to be brought in superior court, a court of appeals, or the Supreme Court.  In a prior contest of an election for statewide executive officer (the 1992 auditor election), the case was initially heard in superior court.

The contest statute specifically contemplates factfinding (“discovery”).  If this case were moved to the Supreme Court, that court would then have to appoint a superior court judge to conduct the factfinding (“discovery”), essentially re-starting the process.  This type of delay is exactly what the Democrats want.

3.         The contest petition makes a valid claim to void the election

An illegal vote is a vote cast in violation of the election laws.  The election contest statute states that illegal votes include, but are not limited to, multiple votes cast by a single voter and votes cast by ineligible felons. 

The exception to the definition of illegal votes (for registrations required to be challenged prior to the election) does not affect any of the votes at issue in this case:

• Provisional ballots that were counted without being verified are illegal because they were counted contrary to law, not because of an improper registration, and moreover those voters were in fact challenged on election day, which is why they were given provisional ballots in the first place;
• Ballots counted without being attributed to a voter’s registration record could not have been challenged in advance;
• Votes cast in the name of dead persons are illegal not only because a person remained registered even thought the law required them to be removed from the rolls, but because a person cast a ballot illegally in the name of someone else; and
• Votes cast by ineligible felons are specifically declared to be illegal votes under the statute, and the statute could not render them legal votes without violating the specific statement in the constitution that disenfranchises felons.

County officials are obligated by law to remove felons and dead persons from voter registration records.  The contest statute should not be read to transform illegal votes into legal ones because private citizens did not do what county officials were required to do by checking for invalid voter registrations.

Contrary to what the Democratic Party and Christine Gregoire are arguing, the election contest statute does not require that each illegal vote be identified to a candidate and subtracted from that candidate’s vote totals.  Courts in Washington and elsewhere have ordered new elections where the number of invalid votes exceeded the margin between the candidates. 

The one Washington case cited by the Democrats to support their position was in 1912.  It has been superseded on this point by Washington’s 1975 Foulkes v. Hays case.  Also, in the 1912 case there was evidence of only three illegal votes being counted, while the margin was five votes.

4.         A Revote is the appropriate remedy in this case

The election contest statute specifically provides for elections to be annulled and set aside, and for election certificates to be declared void.  This is what we are seeking.

Once the election is nullified, holding a revote – as the Washington Supreme Court approved in Foulkes v. Hays – is simply a continuation of the 2004 election for governor to achieve a final result.  The courts have the authority to order a revote under the contest statute and their equitable power.

Even if the court were to find that it cannot order a revote, the vacancy in the office of governor brought about by the nullified election would be filled under the provisions of Article III § 10 of the state constitution.  That section calls for a governor to be elected at “the next general election,” which would be in November 2005 (not 2006 or even 2008 as the Democrats claim).  The statute the Democrats say prohibits elections for governor in odd-numbered years does nothing of the kind.  It merely fills in a gap in the constitution regarding vacancies in other offices, whereas vacancies in the office of governor are filled at the next general election under the terms of Article III § 10.

The Legislature also could determine that it would be in the best interests of the state to resolve this matter, and pass legislation calling for an earlier election.

Help fund the election challenge!

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UPDATE: Friend Jeff notes at Digital Brown PJs that a new movie is likely forthcoming: Attack of the DEMO DROIDS!