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Originally published December 15, 2004 at 12:00 AM | Page modified December 15, 2004 at 7:43 PM

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Will Legislature pick governor? It could happen

The court's rejection of the Democratic Party's lawsuit yesterday settled — for the moment — the legal issues in the governor's race.

Seattle Times chief political reporter

OLYMPIA — The state Supreme Court's unanimous rejection of the Democratic Party's recount lawsuit yesterday settled — for the moment, at least — the legal issues in the contentious governor's election.

But it also raised the prospect of the fight moving back into the political arena, with questions about whether the eventual loser will use a vaguely worded provision in the state constitution to try to force the Legislature to overturn the result.

That, according to one attorney, "is the ultimate nuclear weapon in the process."

Most observers acknowledge that the possibility of giving politicians the final say on who will be the next governor remains slim. But attorneys on both sides have mentioned that possibility in legal briefs and letters. And both sides point the finger the other way, with each party warning that it expects its foes to take the unprecedented step of going to the Legislature if it loses the recount.

The state Supreme Court yesterday made fast work of the lawsuit filed earlier this month by the Democratic Party. Less than 24 hours after hearing arguments, justices issued a unanimous decision, saying the court would not order election officials to reconsider thousands of previously rejected ballots, as Democrats had requested.

The court said state law makes clear that a recount should "retabulate" votes already counted and that county canvassing boards cannot be ordered to look again at ballots thrown out during the first two tallies. The court also said there was no call to mandate a statewide standard for signature checking of absentee and provisional ballots.

"What it says is that you shouldn't change the rules in the middle of the election," Republican candidate Dino Rossi, a former state senator, said yesterday.

Rossi, who led Democrat Christine Gregoire after the Nov. 2 balloting and the machine recount, would not say what he would do if he ended up on the losing end of the current recount. That hand recount is expected to be completed next week.

State Democratic Party Chairman Paul Berendt said in a statement that he was disappointed in the ruling and that the party continues to believe "legitimate ballots were thrown out because of a variety of governmental mistakes."

Mixed signals

There are two scenarios under which the loser in the hand recount could contest the result, meaning a specific challenge to the validity of the election.

There's a process in state law that calls for hearings before a judge if there are allegations of fraud or negligence in the election. After hearing evidence, a judge could rule that the election be "annulled and set aside."

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But what's raising eyebrows in the legal and political worlds is the prospect that instead of following that law, the loser might go directly to the Legislature under a provision in the state constitution.

Gregoire would not, spokesman Morton Brilliant said.

"Chris has made it as clear as can be for weeks: Count all the votes, hand-count, and we should live by the results," Brilliant said.

Rossi's camp is less firm.

"Going to the Legislature is not a pretty option and not an option many people want," spokeswoman Mary Lane said. "But if somehow the election results were to be overturned, that would be so unusual we have to reserve all our options."

Most of the attention on the potential for a contested election centers not on state law, but on a much more brief reference in the state constitution.

It's a provision that apparently has never been tested in a race of this magnitude and no one is clear about how it would work.

The constitution gives the Legislature the authority to certify the election of state constitutional officers, including the governor. It says the Legislature has the power to break a tie by a vote of a joint session of the Legislature.

There's not much argument about that.

Less clear is Article III, Section 4 of the constitution, which reads: "Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law."

Does that refer to the state law that lays out the process for challenging the result before a judge? Or is it a more open invitation to take the dispute directly to lawmakers?

"There are going to be disagreements about that," said Thomas Ahearne, an attorney working as special counsel to Secretary of State Sam Reed.

Democrats say a contested gubernatorial election can be brought directly to the Legislature. No court action is needed, they say. "If there is to be an election contest as to this office, the Constitution requires that it be decided by the Legislature, not the Judiciary, and that would inevitably drag into the early months of next year," Democratic Party attorney David Burman wrote in a letter to the secretary of state Dec. 1.

The timing is important. Today the House is controlled by Democrats, the Senate by Republicans. But Democrats will take control of the Senate on Jan. 11, when new members are sworn in.

That obviously would be a more welcoming place for a Democratic challenge.

Both sides raise the specter of invoking the constitutional challenge as a sort of last resort in the recount — as the ugly, inevitable result of the other side's manipulation of the system.

When the letter from Burman to the secretary of state became public, Republican Party Chairman Chris Vance called the reference to using the Legislature to settle the election "ominous."

But David McDonald, the Democratic Party's chief lawyer, said the contested election was raised in the letter because he believes Rossi will try that avenue if he loses the recount, not Gregoire.

"I do not think that we have ever threatened to go to the Legislature if we were behind," McDonald said. "No matter what my lawyers may have said in the letter that someone else tries to misinterpret, I am the one who makes that decision and I have never threatened to do it."

Rossi's chief attorney, Mark Braden, agrees with his Democratic counterparts on one point: Lawmakers have the final say on a contested election.

"Since the Legislature is the body that certifies the election, ultimately they are in the decision-making position on this," he said.

Braden, a Washington, D.C.-based specialist in election law, said contested elections are rare around the country because most candidates concede after a recount.

"When you get into the contest action, to some degree you have to attack the system to be successful," Braden said. "There is some hesitancy to do that. You are without question undermining the faith in the electoral system. It is the ultimate nuclear weapon in the process."

And not one necessarily welcomed by Democratic lawmakers.

Sen. Adam Kline, D-Seattle, an attorney who will be chairman of the Senate Judiciary Committee, said there is a "popular assumption" that Rossi has won the race, in part because of the Republican's careful postelection public-relations strategy.

That, he said, will put Democrats "on very, very thin ice with the public" if lawmakers get involved in determining the outcome.

"I would be very, very careful here," Kline said. "No matter how thoughtful and surgically precise we approached this, if we were seen publicly as trying to steal an election, the ill will we would invite would be worse than four years of Dino Rossi."

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

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