Calculating illegal votes' impact could be key to election lawsuit

Here's the courtroom scene Democrats say is inevitable, given the Republican legal challenge to last year's governor's election:

Some 1,000 felons — including forgers, perjurers and fraud artists — are subpoenaed from around the state, brought to a Chelan County courtroom and asked to say under oath which candidate they voted for — a vote that would be a new felony mark against the ex-cons.

In a hearing tomorrow that may say a lot about the odds of the Republican lawsuit succeeding, Democratic attorneys will argue that to overturn the election because of illegal votes by felons, Republicans should have to prove who each of the felons voted for — Gov. Christine Gregoire or Republican candidate Dino Rossi.

Democrats look at that prospect with a mix of revulsion and glee. It's the reductio ad absurdum that could stop the election lawsuit in its slow-moving tracks.

Democratic Party attorney Jenny Durkan says Republicans don't like to imagine the "ugly scene, this parade of felons, taking their Fifth Amendment rights."

"The thing the Republicans don't want to admit is it's not supposed to be easy to overturn an election. This isn't a case about convenience. When you ask a court to overturn an election you're supposed to have a high burden."

This is one of the last major legal issues to be decided before a trial begins May 23. Republicans say the Democrats' argument would set up an unreliable and untenable system for proving illegal votes. They say relying on felons' testimony would be a "perverse result" of the state's election-contest law.

"Each person who submitted an unlawful ballot would be forced to admit that they violated the law, and would be presented the opportunity to 'game the system' by testifying to the vote that best achieved their political ends, rather than the vote they actually cast," Republican attorneys wrote in papers filed in court.

Rossi spokeswoman Mary Lane said that wouldn't be a reliable system.

"You're going to trust thieves, child molesters, embezzlers, rapists, murderers? That isn't going to work," Lane said.

Instead, Republicans say Judge John Bridges should assume that illegal votes were cast in the same percentages as other votes in the same neighborhood. For example, in a precinct where Gregoire won 60 percent of the vote, it would be assumed she got 60 percent of the illegal vote, too. And those votes would then be subtracted from her total. If Rossi got 40 percent of the vote in that precinct, 40 percent of the illegal votes would be subtracted from his total.

There's never been an election lawsuit in Washington state that used that sort of circumstantial evidence to apportion illegal votes, and Democrats have filed papers asking Bridges to disallow it.

Both sides will try tomorrow to stop the other from introducing major evidence in the case.

Republicans have moved to prevent Democrats from introducing evidence of illegal Rossi votes that they say will more than balance out whatever Republicans have found. Republicans say some of the issues Democrats want to raise have been settled in earlier legal rounds and others should have been introduced earlier in the Chelan County proceedings.

Bridges also will consider a Democratic request to bar evidence related to two alleged illegal votes by noncitizens.

At issue: illegal votes

In Washington, a convicted felon can vote only if he completes his sentence and court-ordered community service, pays all fines and restitution and obtains an order from a judge.

In tomorrow's hearing there will be a debate over the burden of proof necessary to show that a vote is illegal. Republicans have asked for clarification about whether county voter-crediting information is good enough to show someone cast a ballot, and want to know how much evidence is needed to show that a felon did not have his or her voting rights restored before the November election.

If Bridges follows his usual practice, the rulings will come quickly tomorrow from the bench, setting up the final weeks until the trial.

Rossi was initially declared the winner of the November election, the closest governor's race in the nation's history. He won the first count by 261 votes and a machine recount by 42. But after a hand recount, Gregoire was declared the winner by 129 votes.

When the legal fight began in January, Republicans hoped they would have to prove only that there were enough errors and illegal votes in the election to make it impossible to say with certainty which candidate won.

But in February, Bridges made it clear that Rossi would have to show that he, and not Gregoire, was the rightful winner.

Prorating by precinct

To do that, the Republicans rely on an approach never used in Washington state. To make the case, they hired University of Washington associate professor Anthony Gill and professor Jonathan Katz of the California Institute of Technology, both experts in voting behavior and patterns.

Because votes are recorded by precinct, the experts claim the best way to determine how many illegal votes each candidate got is to assume that the illegal votes from any given precinct were split by the same percentage as the overall vote in that precinct.

Republicans said Katz and Gill will testify that if the illegal votes are apportioned between Gregoire and Rossi based on precinct results — known as proportional reduction — Rossi should be the winner.

They say the methodology has been "accepted by courts in dozens of election contests, innumerable voting-rights cases, and the academic community."

Gill's statewide analysis of 879 illegal votes showed Gregoire getting 510.02, Rossi 318.64, and minor candidates getting the rest.

That would give Rossi a 62-vote victory margin in the race.

Republican attorneys said proportional reduction is not only more efficient for the court but more accurate because of potential problems with felon testimony.

Republicans cite election-contest cases in California, Arizona, Alaska and elsewhere where courts accepted the proportional-reduction method.

In a 1990 case before the Arizona Supreme Court, the court allowed prorating illegal votes based on election returns.

"While proration is imperfect, we lack the luxury of perfection," the court wrote. The court said the approach avoids having voters give up the secrecy of their vote and "permits us at least sometimes to avoid the cost and delay of a second election. ... Moreover, though proration leaves some doubt that we have discovered the true winner, the other options fail to bring us nearer to that mark."

The Arizona court said it would be problematic to rely on testimony from people who cast illegal votes. Some, the court said, "might be motivated to maintain silence by a genuine fear of criminal sanctions." But refusing to answer can be more insidious, the court said, because it "empowers partisans of the opposition to frustrate an election challenge and preserve illegal votes by exercising Fifth Amendment rights."

In their court filing, Democrats call proportional reduction "speculative attribution" and say it's "based on chance."

"What they're going to do is ask the court to overturn an election of nearly 3 million votes by having a judge guess how 900 felons voted," said Durkan, the Democratic attorney.

Democrats say state case law says that unless there is evidence to show who received an illegal vote, it should be considered a valid vote.

But "circumstantial evidence is evidence. So is expert testimony," attorneys for Secretary of State Sam Reed wrote in a recent court filing.

Reed said circumstantial evidence should be allowed but that Bridges should hold a separate hearing to determine whether evidence from Katz and Gill would meet established standards of expert testimony.

Key word: "appears"

Both sides have prepared lengthy legal arguments. But they are also engaging in a little dictionary debate.

The election-contest law says an election cannot be overturned because of illegal votes "unless it appears" that subtracting all the illegal votes from the winner would reverse the outcome.

The two sides don't agree on what "appears" means.

"Given the plain meaning of the word 'appears,' a contestant must show that it is 'obviously or easily perceived' that a candidate received those votes," Democrats say.

Republicans read "appears" to mean "look" or "seem." They say it is "not a requirement of absolute certainty." During a court hearing last month, Democratic attorneys said that rather than prorate votes based on geography, the court could consider demographic information like age, gender or even the type of car a felon drives or the magazines he reads.

Democrats have said repeatedly that felons wouldn't vote overwhelmingly for Gregoire because she was the longtime attorney general and criminals would not likely back a law-enforcement figure. Democrats also say that most of the alleged felon voters are men, and that exit polls showed men supported Rossi over Gregoire.

The Republicans' expert witnesses say demographic studies show the opposite.

Katz and Gill cite a 2002 article in the American Sociological Review that analyzes felon voting. It is not about illegal votes by felons, but looks at how felons would affect presidential and U.S. Senate elections if they were given the right to vote in different states.

The results showed felons would be likely to vote overwhelmingly Democratic. The researchers considered gender as well as income, race and marital status.

Gill said in his report that the study suggests the statistical analysis he did "is too conservative, giving Ms. Gregoire the benefit of the doubt."

Factoring in demographic information "would only strengthen the conclusion that Mr. Rossi would have won the election had no felon ballots been cast."

The reports were done before Democrats found what they say are 432 illegal votes from areas of the state that strongly supported Rossi.

Gill would not answer any questions about the case or his study. Katz could not be reached.

Democrats say they will continue to oppose proportional reduction. But they'll also continue collecting evidence in case they lose that argument and have to fight Rossi in court, illegal vote by illegal vote.

David Postman: 360-943-9882 or dpostman@seattletimes.com