What to expect in court Feb. 4

Tuesday afternoon at the school's Political Awareness Club meeting, Russell Speidel, a Wenatchee attorney serving as co-counsel for the Washington State Democrats, explained the court proceedings and the arguments that both the petitioners (the state Republicans and Dino Rossi campaign) and the intervenor-respondent (the state Democrats) will make. I'll outline the four main points (keep in mind this is much-simplified from Mr. Speidel's information). Then, my own comments follow in italic type. My conclusion and prediction will follow last.

I want to emphasize that while Mr. Speidel represents the Democrats in this case, he did not speak at the club meeting trying to advocate a position. He spoke to educate the students who will attend a portion of the proceedings Friday. He was fair and informative.

Feb. 4 will be a historic day. This is already the closest governor's race in state and national history. It would be the first time a governor's election would be set aside. Regardless of the outcome in Chelan County, the loser will appeal to the state Supreme Court.

The four main issues:
Subject Matter Jurisdiction: The issue is whether the courts have jurisdiction to hear contests in the election for governor or whether the Legislature has exclusive jurisdiction. The state constitution, Article III, section 1, defines the state offices, including governor. Section 4 states, "Contested elections for such officers shall be decided by the legislature in such a manner as shall be determined by law." Apparently about a dozen other states have similar language. Democrats say this means that only the Legislature has jurisdiction over statewide office contests and that "by law" means that the Legislature can sit as a court and hold a trial with legal proceedings (depositions, witnesses, etc.).

My take: The state constitution seems clear to me -- the Legislature gets to decide contests for statewide office. No court can rule here. The counterargument is that the judicial power of "equity" -- to right a wrong -- is specifically delegated to a Superior Court (each county). So which part of the constitution is more powerful?

The next three issues all assume that a court finds it does have jurisdiction.
Venue: The issue is whether Chelan County Superior Court is the appropriate court to hear this case. Mr. Speidel explained that an affadavit was filed in Chelan County where four voters claimed they had been disenfranchised. The deadline for filing complaints and voter corrections (signature matches, etc.) was mid-November. All four in Chelan County were dated in December.

My take: There may be a case to make in another county but not here in Chelan County.

Relief: The issue is whether the Republicans and Rossi are entitled to a revote. The Republicans need to show that the proper remedy to the possible errors (they need to list those, too) is, in fact, a revote.

My take: See below.

Causes: The issue is what constitutes an "illegal vote." The constitution defines an illegal vote as one cast by a felon, a person declared mentally incompetent, or multiple votes cast by a single person. It also notes that an illegal vote is not a vote cast by improperly registered voters who were not properly challenged under the law. Republicans will call some votes illegal (cast by felons or on behalf of deceased -- actually a person voted twice) and that errors in registration could have been avoided.

My take: The Seattle Times found 129 felons who voted just in King and Pierce counties. Some of those felons never knew they weren't supposed to be able to vote. The state is supposed to notify a county auditor when a felon has voting rights removed or restored. It's not perfect, aiuditors say, because of delays in processing and because people move around. Therefore, that's an error in registration, not an illegal vote -- an error in registration that should have been challenged during canvassing, not after certification. Basically, it is a horrible thing to know that some ballots were cast by people who should not have cast them, but it's too late to go back. There is not evidence of widespread fraud, and we don't know for certain that the erroneous ballots would have changed the outcome.

Final thoughts: The court does not have the authority to do what is being requested. The Legislature does (and we know the Demos control both houses, so there will be no revote if they have anything to say about it). Even if the court decides it does have the jurisdiction, and let;s say Judge Bridges buys all the Republican arguments, I think the ultimate question regarding power of "equity" is this: Is a revote the appropriate solution? Just because we do the election again, it won't make things perfect. We don't guarantee perfection. This was not a "messy" election -- it was a fair election that was just very, very close, so we see how much every small factor matters. Judge Bridges is known for making decisions without a lot of delay. His entire day is available, but I would not be surprised to see a decision before the end of business. If the hearing continues late into the afternoon, I'll try to get down there. Expect an update from me by Saturday.

-- Wenatchee, Wash.