updated 5/2/2005 2:10:52 PM ET 2005-05-02T18:10:52

The Republicans won an important victory Monday in their legal challenge to the election of Gov. Christine Gregoire when a judge allowed them to use a type of statistical analysis to try to prove illegal votes swayed the race.

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Republican Dino Rossi is trying to have the election results from November declared invalid. Rossi won the first count and a machine recount, but his Democratic opponent won by 129 votes in a hand recount of 2.9 million ballots.

The trial is set for May 23.

State law includes provisions for challenging and nullifying an election, but they have never been used to try to remove a governor.

Republicans claim they have identified more than 1,000 illegal votes — mostly ballots cast by felons, but also unverified provisional ballots and votes cast in the names of dead people.

Superior Court Judge John Bridges gave the GOP the go-ahead to apply “proportional analysis” to the illegal votes.

Using proportional analysis, they want the court to subtract illegal votes from both candidates’ totals according to precinct voting patterns. For example, if 10 illegal votes came from a precinct that voted 60 percent for Gregoire and 40 percent for Rossi, six votes would be deducted from Gregoire’s total and four from Rossi’s.

Democrats said the method amounts to statistical guessing. At the same time, they have been collecting evidence of illegal votes in GOP-leaning counties, and plan to use the same proportional analysis in court.

In arguments before Bridges, David Burman, an attorney for the Democrats, likened proportional analysis to flipping a coin. To overturn an election, “They have to be certain,” he said. “Mathematical chances are not good enough.”

But GOP attorney Mark Braden said that without proportional analysis, both sides would have to bring thousands of witnesses into the courtroom, to ask how they voted on a secret ballot. That, he said, “is a nonsensical interpretation of Washington law.”

Both sides have acknowledged that whatever happens in Superior Court, the case will ultimately be decided by the state Supreme Court.

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