Stateline Story

Legal Test Looms for Washington's Gov. Gregoire

Conservative blogs and radio talk shows still buzz with allegations that Washington Gov. Christine Gregoire (D)stole last November's governor's race. And a Republican lawsuit getting under way Monday seeks to overturn her thrice-counted 129-vote victory over Republican Dino Rossi and force a new election.

As she emerged late last month from her first legislative session with an impressive list of accomplishments, Gregoire said she's mostly blocked out the legal challenge.

"I've got to move on," the 58-year old Democrat said. "I wish we could all move on, but I'm still very focused on being governor. I don't go home at night preoccupied about a court case."

Try as she might to ignore the extraordinary circumstances of her election and the errors that marred it, they've loomed over her from day one. Her administration was deprived a customary transition period by a bitter 10-week post-Election Day struggle for the governorship.

Rossi won the first two tallies of the 2.9 million ballots by 261 votes and 42 votes, respectively, and had begun touring the state as governor-elect. But an unprecedented hand recount gave Gregoire a 129-vote victory - the closest gubernatorial race in modern U.S. political history.

It also left lingering questions about her legitimacy and mandate to govern.

The situation seemed unimaginable when Gregoire's friend and fellow Democrat Gary Locke announced in 2003 he wouldn't seek a third term, seemingly paving the way for her to waltz into the governor's mansion.

Washington hadn't elected a Republican governor since 1980. And Gregoire had the perfect biography to be governor of a state where the pioneer spirit of the West has manifest itself in a strong populist tradition. The only child of a short-order cook, she was elected the state's first female attorney general and won national acclaim in that role by leading the $206 billion settlement of a 46-state lawsuit against Big Tobacco.

By comparison, Rossi, a real estate investor and former state Senate leader, was little known outside his suburban Seattle district and the state capital of Olympia. His biggest political accomplishment, negotiating a no-new-taxes state budget in 2003 that bridged a nearly $3 billion budget shortfall, seldom landed him on the front page.

But he ran a brilliant campaign that seemed taken from the playbook of White House political wizard? Karl Rove, while Gregoire appeared stiff and bureaucratic as her campaign sought to portray her as a business-friendly centrist.

In her inaugural speech, Gregoire pledged to reach across the aisle and the state to heal the wounds left by the election. But she bristled under constant questions about election snafus ranging votes cast in the names of ineligible felons and dead people to uncounted ballots discovered at the bottom of trays in elections warehouses.

The questions grew less frequent and she appeared more comfortable as the 105-day legislative session wore on. Buoyed by Democratic majorities in the House and Senate, she won praise from factions of the party's base that were lukewarm toward her candidacy by championing smaller class sizes, increased healthcare eligibility for low-income children and raises for teachers and state employees - made possible partly by $500 million in new taxes on cigarettes, liquor and inheritances.

Democrats and Republicans credited her with pushing through a record-setting $8.6 billion transportation improvement package funded by a 9.5-cent gas tax increase. After the gas tax - which will pay for
highway, bridge, rail and mass transit projects badly needed in the traffic-congested state - was defeated in a preliminary House vote , Gregoire lobbied and cajoled additional lawmakers from both parties to support its passage on the last day of the session.

"I appreciate that she had the backbone to come to us," said state Rep. Mike Armstrong, a member of Republican leadership. "She proved herself to be a leader on this and I don't give that lightly by means. I have a
good friend who I'd very much like to see as governor."

Even as Gregoire basked in the end-of-session glow, teams of high-priced party lawyers, including some veterans of the 2000 presidential fracas in Florida, prepared to argue a lawsuit contesting her election.

The suit, filed by Republicans against county and state elections officials, argues the election should be annulled because it was so flawed by illegal and improperly handled votes that it's impossible to know who won.

Though the state Supreme Court is expected to get the final say in the case later this summer, a hearing today in a county superior court in this dusty Eastern Washington farm town could be critical in determining the burden of proof necessary to overturn the election.

In their court filings, Republicans identify 1,028 alleged illegal votes primarily from felons, dead people and people who voted twice. The party contends that Rossi would have won by 100 votes if the illegal votes were deducted from each candidate's tally based on the proportions of the vote each candidate won in the precincts in which the votes were cast.

For example, if there are 10 illegal votes in a precinct that voted for Gregoire over Rossi by a margin of 60 percentage points to 40 percentage points, the court would deduct six votes from Gregoire's
tally and four from Rossi's.

That method, known as "proportional deduction," has been used in election challenges in other states, but never before in Washington.

There's a reason for that, contends the state Democratic Party, which intervened in the lawsuit and has provided the lion's share of the opposition.

Under state law, a Democratic court filing reads, "unless an illegal votes is proven to have gone to one candidate or the other candidate, it is treated as a legal vote and not subtracted from either candidate's total."

To do otherwise is guessing, said Kevin Hamilton, a lawyer for the Democrats.

"You don't change a result and overturn a governor just by guessing," he said. "Everyone of us can identify someone in their neighborhood who votes differently than other people in the neighborhood."

Republicans argue proportional deduction is the only way to root out illegal votes, since the state's ballot privacy laws make it impossible to trace specific ballots back to voters.

"There has to be some way to deal with all these illegal votes," said Mary Lane, one of a handful of Rossi campaign staffers who've stayed on to support the lawsuit. "You can't just turn a blind eye, like the Democrats want," she said.

Rossi has cast the lawsuit as an effort to root out problems in the election and to restore faith in the state's electoral system.He shrugs off suggestions that the drawn-out legal battle is damaging his political prospects. He's rejected calls to drop it and focus instead on a 2006 challenge to U.S. Sen. Maria Cantwell (D-Wash.), a
matchup that has pundits and the National Republican Senatorial Committee drooling.

"I'm not interested in having a political career," he said. Though he's mostly content to let other do his talking for him, he's spoken up occasionally to accuse Gregoire of breaking campaign promises, including on taxes.

During last fall's race, Gregoire said repeatedly "now is not the time to raise taxes."

Asked about that, she said she stopped Democratic lawmakers from increasing the state's big three general taxes - sales, business or property. And she's quick to add, she didn't think about how raising sin taxes or the gas tax would affect her prospects if Rossi gets the rematch he's seeking.

"I didn't come here to do the politically correct thing," she said. "I'm not going to look at the politics of the situation. I'm going to do what, in my heart, I believe is the right thing to do."

Kenneth P. Vogel is the political reporter for The (Tacoma, Wash.) News Tribune.