Prosecuting attorney inundated with paperwork, e-mails since Jan. 10 summonsSOUTH BEND - Pacific County Prosecuting Attorney David Burke said last week his office is being buried by paperwork as a direct result of a lawsuit filed against Pacific County and the state's other 38 counties by the Republican party, challenging the outcome of the highly controversial 2004 gubernatorial election.
The lawsuit, which was filed in early January in Chelan County Superior Court, names each county's Auditor's Office, as well as Secretary of State Sam Reed.
"I've got a stack of documents two feet tall here in my office," said Burke. "The lawsuit has produced reams of legal responses from the defendants. When you have 39 counties being sued, the paper trail is tremendous and growing every day."
Burke said since the lawsuit was filed he has also been getting in the range of 100 e-mails every day pertaining to the case from the other 38 counties involved, their attorneys, as well as attorneys representing the state's Republicans who filed the lawsuit.
"My computer is almost going on 'tilt' with the amount of e-mails," said Burke.
The state's GOP party and Dino Rossi, who lost the governor's race to Christine Gregoire by a mere 129 votes in a hand recount, contend the election was so flawed that the court should order a revote. Much of the controversy pertains to absentee ballots, and more importantly, questions regarding the accuracy of each county's voting apparatus.
The Republicans say the number of ballots in question is larger than the margin of victory which put Gregoire over-the-top to man the state's highest post, and maintain that many of the ballots cast in the election should not have been counted. This includes ballots from deceased people and convicted felons who had not had their voting rights restored.
"On Jan. 10, we received a summons pertaining to the lawsuit that Republicans filed against all 39 counties in Washington," said Pacific County Auditor Pat Gardner, who passed this paperwork onto Burke's office.
Burke said shortly afterward, the county also received a list of questions (also referred to as interrogatories) as part of an election contest petition, essentially to probe for any irregularities in Pacific County. He said initially the GOP wanted a response to these questions within 10 days to expedite the process, but that request was denied in Chelan Superior Court. As a result, the county is facing a normal discovery timeframe of 30 to 40 days to respond from the time the county received the summons on Jan. 10. He said since the original list of questions was received, a paired down "less intense" list was sent out to each county, as a way to try to shorten the amount of response time.
But Burke said even with a paired down list, the lawsuit and its seemingly endless task of processing paperwork and e-mail correspondence has, at times, almost brought his office to a standstill.
"The problem is that this lawsuit is tying up an already busy office that is down one attorney," he said.
The normal amount of staffing in the Pacific County Prosecutor's Office is seven people, consisting of three attorneys, three paralegals and a seventh person who handles primarily paternity cases for the state. But at this time there are just two attorneys, and a third is being sought to fill the vacancy created when one of the county's lawyers recently walked off the job.
Another twist to this lawsuit is that many of the state's counties have objected to the fact that it was filed in Chelan County.
"If these counties succeed in getting the venue changed then it could end up in multiple lawsuits in different counties," Burke said. "The reason why we aren't trying to do that, is that it doesn't get us out of the case, it just changes the location and they would come here to sue us."
Possible financial impact to countyAnother more serious aspect of this lawsuit is that it could eventually end up impacting Pacific County financially if legal representation is deemed necessary. A number of counties feel this is an appropriate expense, according to Burke, who added that this is something which he is trying to avoid.
"Some counties have hired attorneys to go defend them in this lawsuit, and this can be a huge cost," he said. "At this point we can just respond and see what happens and go on from there."
According to Burke, the purpose of the lawsuit is not necessarily to sue each county for monetary rewards, but to determine whether each county's auditors office made errors, whereas the election could be overturned, thus preventing Gregoire from taking office without a new vote. He said the danger lies in what the impact could be if the Republicans win.
"At the end of the day, if the Republicans win the case, it is possible the cost of the lawsuit and the attorneys fees could potentially be assessed against the counties," warned Burke. "That is why we just can't ignore it."
County has clean recount resultsAccording to Burke, most of the focus of the lawsuit seems to be on the voting procedures in the state's largest counties, such as King. Burke, who is a member of Pacific County's canvassing board, said the punch card voting system currently used in Pacific County is sound, and that there were no voting irregularities found in the recent 2004 gubernatorial election. In fact, Burke said the main reason why the county's voting process is clean is because of the punch cards.
As a part of the two recounts for the governor's race in 2004, all of the ballots cast in Pacific County had to be recounted. The first was by machine and second was a hand count. Gardner said the machine count took 45 minutes, and the hand count took four hours. There was a total of 10,621 ballots that had to be recounted. The machine recount went up by one, because there was one absentee ballot which had gotten stuck in its envelope. The hand recount stayed the same.
"Through the years, our county has had extremely well qualified people working at the polls, who have done a great job in the last several general elections, and they continue to do so," Gardner said.
According to Burke, the Washington counties which are having some of the biggest headaches after the 2004 election are those which use what are called optical scan ballots. These ballot cards require a voter to fill in an oval with a pen or pencil, and are similar to cards used in many schools and colleges for taking tests.
"But with these optical scan ballots, there can be some questions about intent, depending how they are marked," said Burke. "This is my assumption in what I have heard from other people. What I do know is that with the punch cards, you punch it out or don't punch it out. So, the number of ballots we had that were in question in the 2004 election was relatively small."
Fallout from 2000 presidential electionGardner echoed the very same sentiment, but said the county is being mandated to stop using punch cards, as a direct result of the highly controversial 2000 presidential election. She said the federal government has mandated that all states and counties discontinue punch cards by the year 2006 as part of the Help Americans Vote Act (HAVA), which was signed into law by President Bush on Oct. 29, 2002.
Much of the controversy in the 2000 presidential election stemmed from problems at polling offices, particularly those in Florida, that invalidated punch card ballots because they had paper "chads" not completely punched through. These were often referred to as "hanging chads," and in 2000 were said to put many punch card ballots into question because the voter's intent was said to be unclear.
Gardner said the main reason why hanging chads are not a problem in Pacific County is that the apparatuses which they utilize here are cleaned regularly. She said another safeguard to properly process punch cards is that Pacific County has its own canvassing board which examines any ballots in question. The canvassing board is usually comprised of eight people, including the county prosecutor, county auditor and chair of the county legislature, or their designees.
Cost of replacing punch cards"As a result of HAVA, each polling place will be required to have Direct Recording Equipment (DRE) there for handicapped or special needs people," said Gardner. "For the rest of the voters, there would either have to be more DRE voting machines or optical scan ballots."
The transition from punch cards to DRE's and/or optical scan ballots by 2006 has its price. At a cost of around $5,000 each for a DRE voting machine, the cost the Pacific County could be substantial. Gardner said a very viable solution would be to have one DRE at each of the county's polling places for the handicapped and special needs voters, and optical scan ballots for the rest of the voters. Gardner estimates it would cost $240,000 for the county to have at least one DRE at each polling place and convert to optical scan ballots.
"The federal government would offset some of this cost, but the overall cost to the county would be approximately $40,000," she said.
According to Gardner, there are two Washington counties which are currently using primarily DRE machines, and include Yakima and Snohomish Counties.
Gardner said the only way for Pacific County to avoid the cost of incorporating DREs into its voting apparatus would be for the entire county to be set up to vote by mail, but added that such a decision would have to be made by the legislative body of the county. "There has not been any decision made yet," she said.
Feb. 4 ruling moves lawsuit forwardOn Friday, Feb. 4, Chelan County Superior Court Judge John Bridges refused several Democratic attempts to dismiss the lawsuit, and stated that the case should move forward. Bridges said allegations made in the case, if proven at trial, would be sufficient to overturn the election of Gregoire as governor.
Bridges stipulated that if Republicans did prove their case, he would not order a new election for governor as they want him to do, which Rossi has maintained as the only remedy he would accept.
According to Burke, he will continue to respond accordingly to any more requests for information pertaining to the lawsuit. He said that since the county received its summons on Jan. 10 both the Republican and the Democratic parties have continued to ask to be provided with data and answer questions about the election.
"At this point, we haven't gotten any depositions to what we did in Pacific County in 2004," Burke said. "We will send in the interrogatories and see what goes from there. I was there in the process, and we knew the election was close so we scrutinized everything. They have a right to sue us, and there may have been problems in other counties, but at least for Pacific County there is nothing we did wrong."