Try, try again.(Washington State)(gubernatorial election)

WE have generally decried the recent trend toward attempts to settle elections after the fact in the courts. But the voting controversy in Washington State is a special case. As Byron York reports elsewhere in this issue, it is impossible to know who truly won the Washington gubernatorial race between Republican Dino Rossi and Democrat Christine Gregoire. Gregoire has just taken office, having overtaken Rossi in a second recount. Her winning margin: 129 votes out of 2.8 million votes cast. Rossi had won the initial post-election-day count by 261 votes, and the first machine recount by 42 votes. Throughout the process, Gregoire has been helped by the ability of heavily Democratic King County (home to Seattle) to produce new batches of uncounted votes, including 573 supposedly mistakenly disqualified ballots that gave Gregoire her winning margin.

Rossi has filed a contest of the election in state court, as allowed by the state constitution. (He chose not to pursue action in federal court using the fanciful equal-protection arguments that are the unfortunate spawn of Bush v. Gore.) The exact standard he will have to meet will be decided by the judge, but at the very least he will have to prove that the number of ballots accounted for by fraud, error, or illegal votes exceeds Gregoire's margin of victory. At 129, and with plenty of questionable ballots in King County alone, he should meet any reasonable test on this score. Then, the judge will have a number of remedies, including a statewide re-vote. That is the option favored by Rossi, who argues that the vote-counting process has been so chaotic and mishandled that no one can assume the governorship except under a debilitating cloud of doubt.

He is right. The painstaking precinct-by-precinct analysis of blogger Stefan Sharkansky at soundpolitics.com shows that in King County alone, there are 3,700 unaccounted-for ballots or voters. Some precincts have more ballots than voters, for a total of 2,900 "extra" ballots. Other precincts have more voters than ballots, for a total of 800 "extra" voters. These mystery voter-less ballots and ballot-less ...