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updated 12/14/2004 1:39:37 PM ET 2004-12-14T18:39:37

The state Supreme Court on Tuesday unanimously denied the Democratic Party’s request that previously rejected absentee and provisional ballots be included in the hand recount of the governor’s race.

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In a brief written opinion, the high court said that under Washington law, “ballots are to be ‘retabulated’ only if they have been previously counted or tallied” — excluding those that had been disqualified by canvassing boards.

Rossi won the Nov. 2 election by 261 votes but saw that margin shrink to 42 votes after a machine recount of all 2.9 million ballots cast. As of Monday night, with 24 of the state’s 39 counties completing their hand recounts, Rossi had gained 46 additional votes.

But King County Elections Director Dean Logan said Monday that an error had prevented 561 valid ballots from being counted in the heavily Democratic county, which includes Seattle. Gregoire won about 58 percent of the vote there. Tuesday’s ruling would not affect those ballots.

High rejection rate in county
The state Democratic Party filed its lawsuit with the Supreme Court the same day it demanded a hand recount, which began last week.

The lawsuit sought to force county officials to reconsider ballots that had been rejected — most notably in King County. Some were not counted, for example, because the voter’s signature on a mail-in ballot did not match the signature on file and the voter did not correct the record by the deadline.

“We are mindful that King County rejected a higher percentage of signatures than did other counties,” justices wrote, but they noted that it was not clear why that was the case.

David Burman, attorney for the Democrats, has estimated that 3,000 ballots were wrongly rejected and should be included in the hand recount. Two-thirds are in King County.

The secretary of state’s office, county auditors, Rossi and the state Republican Party fought the motion in court. State law defines a recount as re-tabulating the valid ballots, not dredging up ballots that have already been considered and rejected, they contended.

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