No guessing allowed: Washington rejects proportionate deduction in election contests.

• Author: Rava, William C.

Eight months after the votes had been cast, and after two recounts (1) and no fewer than nine lawsuits, (2) the 2004 Washington State gubernatorial election came down to this: Would Chelan County Superior Court Judge John Bridges assume that Washingtonians always vote like their neighbors? (3)

The Washington State Republican Party contested the election of Democrat Christine Gregoire on the ground, among others, that there had been more illegal votes cast than her 129-vote margin of victory (out of close to three million votes cast). (4) Investigations and discovery revealed that many illegal votes were in fact cast and counted in Washington's 2004 general election--many more than Gregoire's 129-vote margin. (5) Ballots were cast in the name of dead voters and convicted felons who had not had their civil rights restored, and some voters were credited with voting more than once. (6)

Judge Bridges, in one of a series of pre-trial rulings, required any party asserting illegal votes to show for whom each such illegal vote had been cast. (7) Attempting to meet that burden at trial, the Republicans relied on the so-called "ecological inference," which posits that a court can determine how a voter voted by looking at electoral returns from that voter's precinct. (8) If the court accepted the ecological inference, for every illegal vote cast in a Gregoire 60%-40% precinct, it would subtract 0.2 votes from her total. If Gregoire carried a precinct 80%-20%, she would lose 0.6 votes for every illegal vote from that precinct. The Republicans presented their theory through expert testimony. (9) Adding up the illegal votes they identified in Gregoire precincts, the Republicans' experts concluded that the Republican candidate, Dino Rossi, had received more legal votes than had Gregoire. (10)

Judge Bridges did not need to delve into the math, however. He simply rejected the underlying theory. Judge Bridges rejected the ecological inference method as scientifically unsound and the proffered testimony of the Republicans' experts as not proper expert testimony under Frye (11):

The Court finds that the statistical methods used in the reports of Professors Gill and Katz depend on an assumption that determines the outcome they obtain. In particular, they depend on the assumption, without any collateral indication of validity, that illegal voters in a precinct vote for a candidate with a probability equal to the overall distribution of votes in the precinct among candidates.... The Court finds that the method of proportionate deduction and the assumption relied upon by Professors Gill and Katz are a scientifically unaccepted use of the method of ecological inference. In particular, Professors Gill and Katz committed what is referred to as the ecological fallacy in making inferences about a particular individual's voting behavior using only information about the average behavior of groups; in this case, voters assigned to a particular precinct. (12) This result should not surprise anyone familiar with Washington's unique political customs and culture. Washington and its voters take the franchise seriously. Washington's political institutions are designed to maximize voter participation in all areas and at all levels of government. (13) The intent--and usually the result--is that public policy closely tracks the popular will. But the popular will resists easy categorization and uniform allegiance to any particular political grouping. Washingtonians have a long and storied history of splitting their vote between political parties, and in recent years no party has dominated Washington politics across all levels. (14) Judge Bridges's rejection of the ecological inference is consistent with this history, as it recognizes both that Washingtonians' political preferences are anything but predictable and that Washingtonians expect that their votes, rather than a single judge's decision, will determine electoral outcomes.

Washington's political institutions are designed to foster popular participation. (15) Like other progressive-era constitutions, Washington's constitution provides for "democratic checks on all three branches." (16) Through the initiative process, Washington voters can collect signatures...