Judge won't dismiss lawsuit
By David Postman
Seattle Times chief political reporter
http://seattletimes.nwsource.com/html/localnews/2002291640_trial28m.html
WENATCHEE — Judge John Bridges rejected the Democrats' call yesterday to dismiss the governor's election lawsuit at the halfway point of the first Washington trial to overturn a statewide election.
Bridges said it would be a disservice to Republicans if he stopped the case. He said both sides deserve "a full and complete analysis, not only of the court's finding of facts but as to the court's conclusions of law."
The trial will determine whether Democrat Christine Gregoire or Republican Dino Rossi truly won the November election. But Bridges said it is about issues bigger than the candidates or the political parties.
"The case most pointedly involves Mr. Rossi and Ms. Gregoire's desire to be the governor of the state of Washington," he said. "It's very important to each of those individuals. And almost, if not as important, is the desire of their respective constituents to have them be governor of the state of Washington.
"This case, however, also has another element that is, I think, as important, and that is what the citizens or residents of the state of Washington expect when there is an election contest filed."
Through five days of trial, Bridges has shown himself to be skeptical of key pieces of the Republican case. And while at each step he has allowed disputed evidence to be entered and witnesses to appear, Republicans yesterday tried shifting the legal basis for their lawsuit and saying they want Bridges to reverse himself on a key decision about burden of proof.
Republicans say it should be enough to show the election count was flawed to the point that the true winner of the governor's race is unknown. Bridges disagrees, saying Republicans need enough evidence to show that Rossi is the true winner — which is the decision he made at a pretrial hearing and then repeated in a clarification from the bench at a hearing May 2.
Bridges said in his clarification that the only state election-contest case that didn't require proof that the outcome would be reversed was the state Supreme Court decision in 1975's Foulkes v. Hays, a disputed Adams County Commission race.
Republican attorney Harry Korrell said in court yesterday Bridges is misreading the case.
"With all due respect to your honor and this court, the Foulkes case ... compels rather than precludes you setting aside this election," Korrell said. "It is for the Supreme Court to decide that Foulkes and its interpretation of the contest statute should be changed."
In arguing against the Democrats' motion to dismiss the case, Korrell told the judge there is plenty of strong evidence the election should be overturned.
He said that in an election decided by 129 votes, "it is reasonable to be exceedingly suspicious" about things such as King County records that show 875 more absentee ballots cast than people recorded as having voted by absentee ballot.
Korrell also continued to hammer on what Republicans have said this week are discrepancies in the number of votes cast and number of voters, saying that's evidence of fraud.
"In a case with these huge discrepancies and a disturbing pattern in some of them, if the court dismisses this case at this stage, then Washington has no meaningful election-contest statute," Korrell said.
Democratic attorney Kevin Hamilton wanted Bridges to dismiss the case, saying there was nothing to back up the Republicans' central claims.
"There's utterly no testimony that any absentee ballots were taken or any absentee ballots were added," Hamilton said. "Mr. Korrell's suggestion and implication and inference and suspicion as he stands here at this podium is not evidence."
Hamilton also countered the argument that Bridges should revisit the burden-of-proof issue, saying that was one of many issues the judge settled before the trial opened.
"It's settled that petitioners must show more than just errors, more than just frustration with a new computer system, more than just rumor and innuendo," Hamilton said. " 'Could have' is not sufficient. One can always speculate."
Bridges said he denied the motion to dismiss, in part, because he agreed with Thomas Ahearne, a lawyer representing Secretary of State Sam Reed. Ahearne told Bridges the case should be decided on a full, not half, record, "so we can put this issue to rest one way or the other once and for all."
Republicans filed the election-contest petition in January after a hand recount of the closest governor's race in the nation's history showed Gregoire the winner by 129 votes. Rossi had won the initial count by 261 votes and a machine count by 42 votes.
The trial is scheduled to run through Friday.
The Democratic motion to dismiss came as Republicans rested their case yesterday. After Bridges' ruling, Democrats called several county auditors and election officials to talk about problems they faced in the November election and subsequent three counts.
Democrats were trying to make two points: that errors Republicans say looked suspicious in King County are a normal part of any election, and that errors in King County that might have benefited Gregoire are offset by the same sorts of problems in Rossi strongholds around the state.
Copyright © 2005 The Seattle Times Company