INELIGIBLE VOTES! Whatever, count ’em anyway.

Republican attorneys in the lawsuit over the 2004 governor's election received a tip last spring that King County officials had unlawfully counted provisional ballots from more than 100 ineligible voters, technically known as "fatal pends." "Fatal pend," short for "fatal pending," is election lingo for a voter who submitted an incomplete registration form and is not legally registered to vote. The GOP lawyers questioned then Assistant Superintendent of Elections Carlos Webb, who was responsible for processing the 2004 provisional ballots, about the fatal pends in his May 9 deposition. Webb testified that a fatal pend provisional ballot must not be counted, citing the office procedures manual that had been submitted into evidence. But he evaded questions about whether he was instructed to count any ineligible ballots. Had the Republican lawyers continued to grill Webb about the fatal pends, they might have uncovered a startling story:Elections Director Dean Logan instructed staff to count the ineligible fatal pend ballots. Instead, the issue was dropped.

Last month, while examining ballot envelopes from the November 2004 election that were made available through a public-records request, I discovered dozens of provisional envelopes marked with the words "fatal pend" in bright green.

•••

The King County elections office and its conduct in Election 2004 were supposedly scrutinized in the Wenatchee trial, by a blue-ribbon task force hand-picked by King County Executive Ron Sims, and by an outside audit team commissioned by the county council. But none of these reviews looked at the most important of the documents that might help answer lingering questions from the tainted election: the absentee and provisional ballot envelopes with the voters' identifying information on them.

In the first public examination of the November 2004 ballot envelopes, I have discovered a number of problems:

• More than 40 valid ballots from overseas and military voters were left uncounted, wrongly rejected for late postmark.

• More than 100 federal write-in votes were counted from ineligible unregistered voters who did not comply with state and federal law for submitting overseas write-in ballots.

• Up to 140 voters appear to have returned both an absentee and a provisional ballot where both were counted.

With the outcome of the governor's race decided by only 129 votes, these slip-ups mattered. King County officials have never publicly acknowledged any of these irregularities.

• And perhaps most significantly, it's now clear that Dean Logan directed his staff to count between 100 and 200 "fatal pend" provisional ballots. This was done over staff objections, contradicting longstanding office practices and clear language in state law. Logan took this action solely on the basis of verbal legal advice, and without consulting the county canvassing board.

To be precise, a "fatal pend" is a voter who returned an incomplete registration form, missing a showstopper component, such as a valid address or signed oath. An applicant who returns such a form has 45 days to provide the missing item or items to complete the registration. In the meantime, a record is opened for the applicant in the voter database, but it is clearly marked "fatal pend"—and the applicant is not eligible to vote.

A spokesman for Sims, Sandeep Kaushik, confirms that a number of fatal pend provisional ballots were counted last November, following advice that Logan requested and received from Janine Joly, the deputy prosecuting attorney assigned to the elections office. Sources who worked in the 2004 election relate that then Superintendent of Elections Bill Huennekens asked his staff to tabulate ballots from voters who were "fatal pended" for unsigned registration forms. But Carlos Webb and the provisional team pushed back that it wasn't legal to count them. (Webb could not be reached for comment.) Finally, with only two days remaining before the November 17th certification deadline, Huennekens directed Webb to forward fatal pends for tabulation. According to sources in the elections office, Huennekens cited Joly's advice that the oaths on provisional envelopes are equivalent to oaths on voter registration forms. It was argued that a signature on a provisional envelope can remedy an unsigned registration form, closing the loop so the provisional can be counted. (Huennekens did not return calls for comment.) Staff didn't buy this argument, as the oaths on the two documents are plainly different, but they reluctantly followed instructions. Compounding this mistake, computer records were modified so that many of the fatal pended voters were improperly recorded on the voter rolls as fully registered voters.

Joly would neither confirm nor deny any specific advice she might have given the elections office, but said that she did not know that fatal pend provisionals had been counted last November. If Joly did in fact advise Logan to count the fatal pends, it would be nonstandard advice. Fatal pend ballots were never counted in previous elections, according to Bob Bruce, King County Director of Elections for several years until he retired in 2002. "They're not registered voters," he said. He also pointed out the absurdity of relying on the provisional envelope signature for verification when there is no original signature on file.

King County's provisional processing manual also states that fatal pend provisionals cannot be counted without a signature on a registration form or approval of the canvassing board. But the uncured fatal pend ballots were not brought to the canvassing board last November. Dan Satterberg, Prosecuting Attorney Norm Maleng's chief of staff and longtime representative on the canvassing board, said that ballots from voters with unsigned registration oaths came before the canvassing board in the 2005 primary and the board rejected their votes and nullified their registrations. "The oath has to be signed for it to mean something," Satterberg says.

Sims's spokesman defends the decision to count the fatal pend ballots, claiming it complied with advice from the Prosecuting Attorney's office. He would not specifically comment on the other irregularities I uncovered, such as the voters for whom both an absentee and a provisional ballot were counted. Sims's position remains that yes, the elections office made mistakes in 2004, and those mistakes have been acknowledged and corrected.

But as with all of the other irregularities that have been reported since the 2004 election, Logan did not acknowledge them voluntarily. He concealed the problems until forced into an admission by a conscientious employee or independent watchdog. recommended

editor@thestranger.com