The argument began at approximately 9:30 this morning. Three justices recused themselves for undisclosed reasons, and one pro tem justice, C.C. Bridgewater, from the state court of appeals, sat to bring an odd number of judges to decide the case.
Background: One week ago, the state supreme court ruled against the democratic party's request that the secretary of state be ordered to compel each county canvassing board to reexamine every vote.
Shortly thereafter, the King County Elections department discovered between 500-700 absentee votes that were not counted in the original count. Election workers are supposed to match the signatures on absentee ballots with the signatures of the registered voters on file. The County has scanned in nearly all of the signatures for registered voters, but had not scanned in signatures for these voters. Instead of searching for hard copy signatures, the votes were simply set aside.
The republicans don't want the votes counted. King County is predominantly democratic. King County (and the voters who were disenfranchized by some flunky employee) want their votes counted.
The republican party filed suit against King County in the adjoining county, Pierce County, seeking a Temporary Restraining Order preventing the counting of these votes. A Pierce County Superior Court Judge granted the TRO. The TRO was on appeal, with King County seeking to have it dissolved and to have the complaint dismissed.
The justices were active during the argument, bringing up procedural and substantive issues. The first procedural issue was whether the case was properly before the court by appeal as of right or by discretionary review. This is somewhat arcane, but my prediction is the court will grant discretionary review and decide the case.
The next issue was whether the superior court has adequate grounds to issue a temporary restraining order. Courts cannot issue what is known as injunctive relief without adequate grounds, which include a finding of irreparable harm, which usually means the inadequacy of monetary damages to address that harm, but can also mean additional judicial procedures to address it.
Here, the republicans were very weak. When Justice Ireland pointed out to them that if King County counts these ballots and Gregoire wins, the republicans can always file an election contest, Mr. Korell argued that the "irreparable harm" would be having to go into that contest as plaintiff instead of defendant. If that's the best they have, they ought to concede the TRO was improvident.
The statute at issue, section 210, received most of the attention. The republicans are pushing for an interpretation of the statute that will cause these votes to go uncounted. They claim that the recount only permits the retabulating of votes that were, in the initial count, designated valid ballots, that the universe of legitimate votes cannot change.
Justice Chambers had a particularly trenchant comment: "So, if it was discovered that 10 of the previous votes cast were cast by dead people, those are in the universe of previously counted votes and could not be disqualified."
Ha.
The bottom line, my prediction, is that the republican partyh is going to lose. At least two of the justices pointed out that their argument was not protecting the rights of voters who had done everything necessary to cast a valid vote.