By now, nearly the entire country is aware of the election debacle occurring in Washington. Florida 2004: the Pacific Northwest. So far, the elements are in place for a great electoral story: 1) charismatic Republican, 2) boring Democrat, 3) multiple recounts, 4) a small margin of victory, 5) discovered ballots, and 6) lawyers who love litigating elections. Even though my impulse is to turn off NPR, avoid the local news, and avert my eyes to the latest Times and PI headlines, I can't help but think how Democrat Chris Gregoire's predicament, and the mentality of the WA state party resembles recent Democratic presidential candidates and the national Democratic Party.
Right now, Republican Dino Rossi leads Chris Gregoire by roughly 100 votes. After the votes were first canvassed he lead by 261 votes, to only see his lead dwindle to 42 votes after a machine recount. A couple weeks ago the WA Democratic Party was raising money for a partial hand recount of Democratic leaning counties. Gregoire said she didn't want a recount unless the entire state was recounted. After some last ditch fundraising, the Democrats raised enough money to have a state wide recount. All was going well until King County discovered 573 mistakenly rejected ballots. While great news for Gregoire, it should not be presumed she will win. As the counties have turned in their results, Rossi has consistently been expanding his lead. Just this evening, King County has decided to push ahead and count these new ballots. Republicans, are threatening a lawsuit if this new ballots tip the election in Gregoire's favor. Arguably, the GOP would use Tuesday's WA Supreme Court decision as authority for why the ballots shouldn't be counted. Tuesday, the WA Supreme Court said spoiled and provisional ballots that were rightly rejected should not be counted. In the opinion, the court avoided the question of King County's newly discovered 573 ballots.
Like Florida, Washington gives every civics teacher in America a nice teaching moment for the old adage "every vote counts." But, it is also a demonstration of a newly forming adage "litigate until you win." If the ballot box turns against you, take the result to court. Gore did it, Gregoire is doing it, and before them, Karl Rove did it. In Alabama, Rove engineered victory for a Supreme Court Justice through an aggressive litigation strategy. This new trend toward litigating elections is disturbing. It is suspended disbelief at its best. Through litigation, candidates can avoid grieving their election day loss by filing a lawsuit. Litigation can cast a close election into the gray haze of illegitimacy, soiling the incoming elected official, and giving the loser solace by letting them argue their candidate actually won.
As perverse as it is, litigating an election is rather American. Our founders created the system which allowed the emergence of two parties, elections decided by an electoral college, the division of powers, checks and balances, Marbury v. Madison, Federal questions, and an increasingly irrelevant electorate. Who needs voters when you have judges?
But any candidate attracted to the luster of public office and the noble calling of public service ought to consider the cumulative effect litigating an election has on the democratic process. Should campaigns always gird for an inevitable legal fight? Should campaigns reactively file lawsuits if the election day result isn't what was desired? No. What Gregoire, Bush, Gore, and Rove before them all have done is weaken America's system. The electoral college taught us it's not the popular vote that matters, and litigated elections have taught us it's not the electoral college or the popular vote that matters but the subjective, legal interpretation of judges appointed for life. Litigation takes the electoral decision making out of the hands of the republic and puts it in the hands of aged and allegedly learned judges. Elections should never be decided on the basis of a well argued and well worded petition.
Unless there are unequivocal, unassailable, and egregious voting irregularities, systematic deprivation of the franchise, or missing ballots, no election should be litigated. Even though 573 ballots have been discovered that could very well tip the balance in Gregoire's favor, she should have conceded after the canvas and at the latest after the machine recount. Before the discovery of the King County ballots a few days ago Rossi was in the lead and had been after two counts (the canvas and the recount). The objective counting of the ballots had Gregoire losing. Rossi's stooges didn't hide ballots, tamper with voting numbers or do anything nefarious. No one reported butterfly ballots or disenfranchisement. No one was diving hanging chads. Nope. Election officials were reporting scantron results.
Yet with as close as the election is, the only way to know who truly won the election is to have another election. As things stand right now, either Rossi or Gregoire could win and maybe did win. Recounting the ballots until you get the result you want is no way to objectively determine who won the election. Suing, because you don't like which ballots were counted isn't aimed at getting an objective election result. If a voter can't fill in a little bubble then I don't want a volunteer trying to figure out who the voter meant to vote for.
More troubling is Gregoire was considered unbeatable. This was her race to lose. She lead in the polls, won in a contentious Democratic Primary, and was seen as a female version of Governor Gary Locke. Rossi is a right winger from a solid blue state. King, Pierce, Snohommish, and Thurston Counties are reliably Democratic and home to most of the state's population. This was Gregoire's race to lose -- and she did.
Gregoire lost because her campaign was terrible and she was a terrible candidate. She was boring, took no chances, and offered sleep inducing policies. Her campaign was tepid. She won King County with roughly 60% of the vote even though I suspect King would have a party registration of 70% Democrats. She lost Pierce (Tacoma) and Snohommish County too. While her primary opponent was talking about a progressive income tax, Gregoire was blabbering about health care, education, and good jobs (and that was as specific as she got). Gregoire's campaign was focused on the populace Western chunk of the state. She abandoned counties, marking them as unwinnable. Unchallenged, Rossi ran the table in places like Spokane and at the same time campaigned hard in Gregoire strong holds. Rossi came off as both secular and sectarian. Gregoire, seemed like a cold European atheist Prime Minister. Gregoire's campaign matched Kerry's failed campaign in almost every way. Kerry focused narrowly on a few states, defending turf he should win easily while Bush took the fight to him. In place of inspiring people he offered mechanical policy generalities.
So what's the lesson of the 2004 race for Governor? Well there are a few. First, stop litigating. Even if you win you will look like a loser and have no credibility. Second, respect the system by having faith in the system. Only recount and litigate when it is absolutely necessary. Third, if you lose the count, lose gracefully. Fourth, run better campaigns and run better candidates. In a Democratic state like Washington and just like in America at large, Democrats don't lose unless they are uninspiring and run crappy campaigns. Hell, Deborah Senn the Democrat AG candidate was chewed up because she couldn't counter scandals she faced as Insurance Commissioner and couldn't beat back advertising by the Chamber of Commerce. Fifth,whatever happens in the next couple of weeks democracy and politics will be worse off.