How Will Washington Republicans Do on Appeal?

From following the Washington state proceedings from afar, and from listenting to the trial judge's findings of fact and conclusions of law today, it appears that there will be at least three major issues for Republicans to raise on appeal:

1. Whether the trial judge erred in ruling that those challenging an election in Washington must show not only that there were more illegal votes cast than the difference between the top two candidates but also what the trial judge termed "causation:" that there were enough illegal votes cast for the leading candidate so as to change the outcome of the election. This legal question will be ruled upon de novo (that is, without deference to the trial court's legal finding), with the court likely accepting as a given the trial court's factual findings that there was not enough proof of illegal votes cast for Gregoire so as to change the outcome of the election.

2. Whether the different treatment of ballots across different counties violates equal protection under Bush v. Gore. This could well be an important issue on appeal, and it is a federal constitutional issue that could potentially end up in the U.S. Supreme Court. The trial judge dismissed this argument early on, and it will be subject to de novo review.

3. Whether the trial judge erred in refusing to accept the Republicans' proportionate deduction method for proving the number of illegal votes cast for Gregoire. This will be a tough issue for Republicans to win on appeal. The question whether novel scientific evidence is sufficiently reliable so as to be admitted (under the so-called Frye test) in Washington is subject to de novo review. See State v. Cauthron, 846 P.2d 502, 505 (Wash. 1993). So the Republicans could relitigate the issue of the reliability of the Republicans' expert method. But even if they win on that, the trial judge made a factual finding that under that standard, the evidence was that Gregoire, rather than Rossi, would have had more votes. That looks like a factual finding that the Washington state Supreme Court would defer to under a "clearly erroneous" standard of review. For this reason, the argument based on the expert analysis seems likely to fail, leaving instead the first two legal issues.

I haven't looked at the first legal issue in any detail, and the second legal issue (under Bush v. Gore) is quite a controversial issue (and one that would be ironic for Republicans to push). It could well be that after analyzing the judge's ruling today and the chances of reversal, that the Republicans decide to abandon the appeal in this case. As I mentioned yesterday, there will be a significant public relations boost for the winning side now pending appeal.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
http://electionlawblog.org
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