An Unfortunate Statement Impugning the Judiciary at the End of the Washington State Election Contest

As I have argued elsewhere, post-election litigation has apparently unavoidable costs in terms of harming the public's perception of the legitimacy of both the election process and the judiciary. And those on the losing end of things tend to see things as worse than the winners. That meant nationally after 2000 that Democrats had lower opinions of the election process and the judiciary than Republicans.

This process is now replicating itself in Washington state, but with Republicans on the losing end of things. According to a January 2005 Elway poll of Washington state voters (referenced in my forthcoming article on election administration -- pdf at 10), "68% of Republicans thought the state election process was unfair, compared to 27% of Democrats and 46% of Independents."

That statistic points to public concern over the election process. What about the legitimacy of the judiciary? Consider the unfortunate comments of losing gubernatorial candidate (and election contestant) Dino Rossi in deciding not to appeal the trial judge's ruling. According to this Seattle Times article, "GOP candidate Rossi said the 'political makeup' of the high court would have made it almost impossible to get Bridges' decision overturned...Rossi didn't elaborate on his comments about the political makeup of the Supreme Court. Last year the court ruled twice on lawsuits related to the governor's election, each time ruling unanimously, once for Democrats and once for Republicans."

Rossi's comments were gratuitous and unfortunate. Yesterday I listened closely to the judge's ruling and explained why I thought the Republicans would have a tough chance of succeeding on appeal, particularly given the factual findings of the trial judge and the standard of review on appeal. I concluded that "[i]t 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." I made that assessment knowing nothing of the political makeup of the Washington state supreme court, or its method of selection. Perhaps I am naive, but I assumed the justices on that court would be making a decision on the merits, not based on political outcomes.

Statements like Rossi's only tend to denigrate further the public's faith in the judiciary and the election contest. The litigation may have been unavoidable given a 129-vote difference out of 3 million votes cast, but those comments were certainly avoidable.

I have enabled comments.

"Even Judges Can’t Follow Campaign Finance Laws"

Mark Elias offers this Roll Call commentary (paid subscription required), which begins: "Anyone looking for an assessment of the state of America’s campaign finance system need look no further than the recent criminal trial of Democratic fundraiser David Rosen. Rosen’s trial and subsequent acquittal for underreporting in-kind contributions was remarkable in many respects. The trial featured testimony about Hollywood stars, their perks and their habits. It had a roster of characters straight out of central casting. But perhaps most striking was insight it offered into how much confusion exists about exactly how the campaign finance laws work. During the course of the two-week trial no fewer than eight witnesses and four lawyers offered divergent, contradictory and (in many cases) incoherent views on how in-kind contributions were to be treated and allocated. At issue was whether the inclusion of a large in-kind contribution would have an adverse consequence on the amount of money that would be available to the campaign."

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org