One lawyer, one vote

The Washington governor's race is still not over. Now 561 improperly disqualified votes have been found in Democrat and urban King county. This could change the outcome of the race. From what I can tell, this is an honest mistake, but there is every reason to be suspicious.

Regardless of the legitimacy of these 561 votes, there's a fundamental problem: with an election this close, the number of fraudulant votes is much higher than the margin of victory. With tighter election laws, we could significantly reduce the level of fraud, but in this case the margin is so small that even that wouldn't be enough. (Fraud is particularly troublesome if you believe one party usually to commits much more fraud than the other, and that party's candidate wins by a very small margin.) Besides fraud are the many honest mistakes. With these facts in mind, the best we can do is strictly follow the rules as they were layed out before the election, for the legitimacy of the process is all that supports the legitimacy of the result. No one can plausibly say the result is the "will of the people" (whatever that means), and ex post facto changes to the rules, however democratic in intent, undermine democracy more than they advance it.

Here's what happens when we follow the Democrats' "count every vote" mentality to its logical conclusion.

The years since the disputed 2000 presidential election have brought more judicial scrutiny to elections; some judges appear concerned about what one legal commentator has called the increasing legalization of politics through litigation and court action in elections.

That seemed clear from an exchange between Burman and Justice Bobbe Bridge. Bridge asked him about the difference between recounting and recanvassing, and pointed out the problem if either side could continually ask for reconsideration of rejected ballots.

"How are we ever going to get finality in an election if that is the case?" Bridge asked.

Burman: "We are in favor of finality. But we are in favor of finality after it's done fully and fairly, accurately and civilly, and that is part of the manual-recount process."

Bridge: "Are voters supposed to take a lawyer now when they go to vote just to make sure everything" is done correctly?

Burman: "If they care enough, if they are worried enough about the errors, perhaps they should."

Fortunately, the state supreme court has just ruled against including previously rejected ballots in the ongoing re-recount.