by Robert Herold

Justice Stephen Breyer opened his ringing dissent of the Supreme Court's decision to stop the Florida recount in 2000 with the statement: "The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume." The same point might be made regarding the case that Dino Rossi doggedly pursues against the election of Chris Gregoire.

Yes, in Florida the Democrats went to court first, but we also know that in Florida, the election process was highly politicized from the outset. The Secretary of State who declared Bush the winner and denied the call for a manual recount, Patricia Harris, was not only a Republican, but she also had served as a fund-raiser for George W. Bush. Furthermore, Florida has a seedy reputation going back at least to the election of 1876, when through shenanigans the state managed to rob Samuel Tilden and give the election to Rutherford B. Hayes.

The Democrats' error -- an error of expediency, I believe we must call it -- came because they decided to cherry-pick through manual recount votes from heavily Democratic counties that they thought (and rightly so) had not been counted, or had been miscounted, or, in some cases, had not been permitted to be counted at all. But even with all this, keep in mind that it wasn't the aggrieved party, the Democrats, that took the contest to the Supreme Court. It was the Republican Party (or technically, George W. Bush). And the Scalia-led court went along.

The majority did take the case. They did grant a stay. They did prevent a recount. And as many a Constitutional scholar has since argued, they did abandon principle in favor of a preferred result. Justice Scalia, today, can do no better than toss out an arrogant smirk and say that it was the Court's job to see to it that America would not be embarrassed any more -- in other words, to see to it that Bush won.

Here in Washington state, our nearly tied election was certified not by a compromised partisan, but by a Secretary of State of the opposite party -- in this case a Republican, Sam Reed. Nor does this state have a history of botching elections. Moreover, no one disputes that Reed dutifully followed all the legislatively prescribed procedures. Along the way -- guided by law -- some votes were allowed to be counted, some were not. In the end, he certified that Gregoire had won.

Having lost on the recount, Dino Rossi asks the courts to re-examine not just the process, which has passed muster, but actual votes. Felons (some, anyway) may have voted. But Rossi's people admit that they have no way of determining how these alleged illegal voters would have voted. Nor do they have any way of finding out.

They have called in the experts. Republicans propose to employ analysis that involves running hypothetical calculations to determine the real vote. The idea is a simple one: If a county went 60/40 for Gregoire and we identify 100 supposed illegal votes, then Gregoire loses 60 votes and Rossi 40 for a net gain for Rossi of 20. I'm certain that there will be some sophistry added to the analysis, but this is the gist.

So the Republicans want the election set aside on the basis of extrapolation. Democrats will argue that, if anything, the felons had it in for Gregoire, who as attorney general did them no favors. So, what can we expect to resolve this argument? Rossi's people say that the answer is obvious: Felons always vote Democratic because they typically need all those social services that Democrats provide. And no doubt felons opposed the Bush tax cut, too.

And a judge is supposed to change the election on all this guesswork? Apparently this is just what the Rossi people expect. So to complicate the judge's problem, the Democrats are out and about developing their own list of illegal voters -- all in Republican counties.

At least the judge, John Bridges, says that he intends to set the bar of admissibility very high.


The better question is why he ever decided to head down this minefield in the first place. Why did he not heed Breyer's admonition? But some ask, "What about illegal votes?" I suggest that this judge -- or any judge -- should try to limit his or her involvement to process. Was the process constitutional? Was it followed as the Legislature mandated? Was it compromised in any way? If it wasn't, and if the appropriate institutions of government did their duty in the appropriate way, and if the Secretary of State wasn't named Patricia Harris, then, I suggest, that should be that as far as the courts are concerned.

It is amazing, isn't it? Once again, as we witnessed in Bush v. Gore, the party that rails against judicial activism seeks to promote just that, so long as they have the slightest chance of gaining a preferred result. Principles that can so easily be overlooked when political advantage is at stake are no principles at all.

And as for Rossi, he might seek to learn something about grace, the importance of institutions and even due process from another Republican who lost a close one. In 1960, the Republican who didn't demand a recount -- much less the aid of an activist judge -- was Richard Nixon.

Publication date: 05/19/05

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About The Author

Robert Herold

Robert Herold is a retired professor of public administration and political science at both Eastern Washington University and Gonzaga University. Robert Herold's collection of Inlander columns dating back to 1995, Robert's Rules, is available at Auntie's.