Who Really Won?

Tuesday, June 07, 2005

Free Thinking In A Dirty Glass

Billmon's take on the Washington State story:

Judge John Bridges came back yesterday with a ruling in the GOP's last-gasp suit to overthrow Washington State gubernatorial election, and his message to the party (and to would be gov Dino Rossi) can reasonably be summarized as: "Get a life."

In his ruling, Bridges said the GOP failed to make the case for any deliberate, widespread fraud. He rejected the GOP's argument that an analytical technique called "proportional deduction" showed that most of the illegal votes cast in the election went to Gregoire. He also held that even using Republicans' proposed analytical technique, Gregoire still won. (emphasis added.)

The judge found that the Republicans failed to prove that Gregoire received one illegal vote among those improperly cast. In fact, he said, the only "clear and convincing" evidence he saw was the statements of four felons who said they voted for Rossi and one who said he cast a ballot for a Libertarian candidate.

Judge Bridges then proceeded to subtract those same four votes from Rossi's total, which means the net result of the GOP's legal campaign has been to widen Gregoire's winning margin. I can hear the sound of conservative heads exploding from 3,000 miles away. I've got a feeling Judge Bridges has just been added to the right wing's list of "out of control" liberal judges -- notwithstanding the fact that local Republicans were praising his fairness just a few days ago.

Bridges dismissed the GOP suit with prejudice, meaning the final Republican gambit was an appeal to the state Supreme Court. After thinking it over for a few hours, Rossi realized the math was moving in the wrong direction and decided to throw in the towel. Being the class act that he is, however, Dino couldn't go out with a gesture of reconciliation -- much less an admission that his case didn't have a leg to stand on. No, he had to take a completely gratuitous swipe at the state supremes:

"With today's decision, and because of the political makeup of the Washington State Supreme Court, which makes it almost impossible to overturn this ruling, I am ending the election contest," Rossi said at his campaign headquarters in Bellevue.

Maybe he's angling to be Frist's running mate.

It's illustrative to contrast the GOP's attitude toward this Washington State dispute -- i.e. fight like rabid junkyard dogs to the end, then piss on the process after you lose -- to the Gore campaign's "oh well, that's way the cookie crumbles" reaction to the Supreme Court's ruling in the Florida case.

Dino: "Because of the political makeup of the Washington State Supreme Court, which makes it almost impossible to overturn this ruling, I am ending the election contest."

Gore: "Let there be no doubt, while I strongly disagree with the court's decision, I accept it . . . And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession."

On the other hand, it's at least mildy encouraging to see the Democratic Party in Washington State give as good as it gets, and fight for power just as ferociously and effectively as the GOP did in Florida.

The truth is we'll never know who "really" won in Washington, just as we'll never know who "really" won in Florida. Even the best-run election has an unavoidable margin of error -- and I think we all understand the average American election is hardly well run. Lacking any equitable way to resolve a statistical tie (there may be no equitable way) the outcome inevitably swings on who holds the balance of political power. The Republicans had it in Florida; the Democrats in Washington State.

I'm not even sure that's a bad thing in and of itself. If an election is conducted fairly -- i.e. no ballot stuffing, voter intimidation, deliberate use of faulty machines, etc -- and the count is honest but the outcome still too close to call, maybe the party with the most popular support (as demonstrated by control of the legislature or other elected state offices) should have the edge.

I know that sounds cynical, and it's imperative to reduce election errors and omissions to the absolute minimum, but the reality is that some uncertainty will always remain. That being the case, it doesn't seem unreasonable to leave the outcome to the party best positioned to move the levers of political power.

The problem, of course, is that this inevitably seems to mean dragging the courts down into the partisan muck, which may be better than fighting it out with tanks in the streets but is still highly corrosive of what's left of democratic legitimacy. As Judge Bridges wrote:

"Unless an election is clearly invalid, when the people have spoken their verdict should not be disturbed by the courts," Bridges said. Nullifying the election, he said, would be "the ultimate act of judicial egotism and judicial activism."

Would that the U.S. Supreme Court -- and the Supreme Court of Florida, for that matter -- had believed likewise.

No good deed goes unpunished, they say, and I'm sure Judge Bridges will pay for his by being the target of a few conservative hate rallies. But to me it's enormously gratifying to see that a backcountry judge in Washington State has more sense, and far more intellectual integrity, than the partisan majority on the Supreme Court in Washington D.C.

The head of American democracy may be rotten almost to the core, but it seems there's still life in the outer extremities. A relatively small cause for hope, perhaps, but better than none at all.