CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/10/2023 1

Unequal Recount Procedures 

in a Gubernatorial Election 

Washington State Republican Party v. Reed 

(Marsha J. Pechman, W.D. Wash. 2:04-cv-2350) 

Supporters of a gubernatorial candidate filed a federal complaint 

over a weekend challenging recount procedures. The clerk of court 

was able to find a judge available to hear the case on an emergency 

basis, and the judge held a telephonic conference on Sunday. The 

judge determined that immediate relief was not required because the 

ballots in question would be preserved for later examination. Litigation in state and federal court continued as the recount continued, 

and the federal plaintiffs’ candidate ultimately did not prevail. 

Subject: Recounts. Topics: Recounts; equal protection; 

intervention; case assignment; matters for state courts. 

Washington’s Republican Party and a voter filed a federal complaint in the 

Western District of Washington’s Seattle courthouse on Saturday, November 

20, 2004, challenging intercounty inconsistencies in a gubernatorial recount 

and alleging that, as a result, “King County voters are more likely to have their 

votes count than voters outside of King County.”1

 According to the complaint, 

election workers in an optical scan county may review an undervote ballot, 

apply a subjective standard in evaluating any marks on the ballot to determine whether the voter intended to vote for a particular candidate, and then 

may enhance a mark or pattern made by the voter or duplicate the ballot by 

making a mark on a different ballot that will then be counted.2

With their complaint, the plaintiffs filed a motion for a temporary restraining 

order.3

The first judge that the clerk of court could find to come in over the weekend to hear the emergency case was Judge Marsha J. Pechman.4

 Court records 

then were not as available electronically then as they are now, so Judge Pechman reviewed the papers at the courthouse, called in a couple of law clerks and 

a court reporter, and held a telephonic conference on Sunday.5 Judge Pechman 

1. Complaint at 2, Wash. State Republican Party v. Reed, No. 2:04-cv-2350 (W.D. Wash. 

Nov. 20, 2004), D.E. 1; see Steve Miletich & Brier Dudley, GOP Files Suit Over Recount, Seattle 

Times, Nov. 21, 2004, at B1. 

After regular counting of votes, the Republican candidate was ahead of the Democratic 

candidate by 261 votes. See It’s Rossi by 261, Seattle Times, Nov. 18, 2004, at A1. 

2. Complaint, supra note 1, at 5. 

3. Temporary-Restraining-Order Motion, Wash. State Republican Party, No. 2:04-cv-2350 

(W.D. Wash. Nov. 20, 2004), D.E. 2. 

4. Interview with Hon. Marsha J. Pechman, Oct. 15, 2015. 

Tim Reagan interviewed Judge Pechman for this report by telephone. 

5. Interview with Hon. Marsha J. Pechman, Oct. 15, 2015; Transcript, Wash. State Republican Party, No. 2:04-cv-2350 (W.D. Wash. Nov. 21, 2004, filed Dec. 3, 2004), D.E. 27. 
Unequal Recount Procedures in a Gubernatorial Election 

2 Federal Judicial Center 10/10/2023 

granted an unopposed oral motion by Washington’s Democratic Party to intervene.6

 On representations by Washington’s attorneys, Judge Pechman concluded that immediate relief was not required, because the ballots in question 

would be preserved for later examination.7

 At the end of the hearing, Judge 

Pechman informed the parties that although she handled the emergency motion, the case would be permanently assigned to a judge at random.8

The plaintiffs filed an amended complaint9 and a motion for a preliminary 

injunction on Monday.10 On Wednesday, with the Republican candidate 

ahead by forty-two votes after completion of the first recount,11 the plaintiffs 

voluntarily dismissed the action.12 Judge Ricardo S. Martinez approved the dismissal on the following Monday.13

After a statewide hand recount, the Democratic candidate led by 129 

votes.14 During the hand recount, Washington’s supreme court denied, on December 14, mandamus intervention sought by the Democratic Party15 and reversed, on December 22, a temporary restraining order granted to the Republican Party.16 On December 30, the Democratic candidate was certified the 

winner of the election.17

6. Transcript, supra note 5, at 4–5. 

7. Id. at 19; Order, Wash. State Republican Party, No. 2:04-cv-2350 (W.D. Wash. Nov. 22, 

2004), D.E. 5; see Edward B. Foley, Ballot Battles 311 (2016); Lynn Thompson, Judge Says No 

to GOP, Won’t Halt Recount, Seattle Times, Nov. 22, 2004, at B1; see also Susan Gilmore & 

Keith Ervin, When Ballot Is in Question, Here’s What Happens, Seattle Times, Nov. 23, 2004, 

at A1 (“Enhanced ballots are logged with the precinct number, given an identification number 

and initialed by the election worker. While they are not separated from the rest of the ballots, 

. . . they will be easy to find if they come into question in legal proceedings.”). 

8. Transcript, supra note 5, at 19. 

9. Amended Complaint, Wash. State Republican Party, No. 2:04-cv-2350 (W.D. Wash. 

Nov. 22, 2004), D.E. 6. 

10. Preliminary-Injunction Motion, id. (Nov. 22, 2004), D.E. 7. 

11. See Ralph Thomas, A Governor by Christmas?, Seattle Times, Nov. 25, 2004, at A1; see 

also Blaine Harden, Wash. Governor’s Race Tightens, Wash. Post, Dec. 15, 2004, at A9. 

12. Voluntary Dismissal, Wash. State Republican Party, No. 2:04-cv-2350 (W.D. Wash. 

Nov. 24, 2004), D.E. 22; Notice, id. (Nov. 24, 2004), D.E. 21 (withdrawing injunction motion). 

13. Order, id. (Nov. 29, 2004), D.E. 25. 

14. Elections Search Results: November 2004 General, www.sos.wa.gov/elections/results_ 

report.aspx?e=67&c=&c2=&t=&t2=&p=&p2=&y=; see A Look Back at 58-Day Wait and 3 

Counts, Seattle Times, Dec. 31, 2004, at A18. 

15. McDonald v. Reed, 153 Wash. 2d 201, 103 P.3d 722 (2004); see Blaine Harden, Wash. 

Governor’s Race Tightens; Mostly Democratic King County Finds 561 Uncounted Votes, Wash. 

Post, Dec. 15, 2004, at A9. 

16. Wash. State Republican Party v. King Cnty. Div. of Records, 153 Wash. 2d 220, 103 

P.3d 725 (2004); see Blaine Harden, Democrat Takes Lead in Washington State; Supreme Court 

Allows Disqualified Absentee Ballots from King County, Wash. Post, Dec. 23, 2004, at A4. 

17. See Sarah Kershaw, Governor-Elect Declared in Washington Recounts, N.Y. Times, Dec. 

31, 2004, at 18 (reporting also that the victor declined the other candidate’s offer of a runoff 

election); David Postman, Doubts Linger as Gregoire Win Certified, Seattle Times, Dec. 31, 

2004, at A1 (same).