Republican Dino Rossi won the Nov. 2 election by 261 votes and held a 42-vote lead over Democrat Christine Gregoire after the first, machine recount.
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.
The decision does not affect the 561 uncounted ballots in King County that were discovered Sunday to have been wrongly rejected because of mistakes by election workers. Those ballots go to a canvassing board Wednesday for verification and could tip the delicate balance of the election toward Gregoire, who claimed 58 percent of the vote in the Democratic stronghold that includes Seattle.
"The most likely outcome is Dino wins the hand recount, but we continue to worry about what's next in King County," said state Republican Party Chairman Chris Vance.
The state Democratic Party filed its lawsuit with the Supreme Court the same day it demanded a hand recount, which began last week. As of Monday night, with 24 of the state's 39 counties completing their hand recounts, Rossi had gained 46 additional votes.
The lawsuit sought to force county officials to reconsider ballots that had been rejected — most notably in King County. Some weren't counted, for example, because the voter's signature on a mail-in ballot did not match the signature on file and the voter didn't 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 noted that it was not clear why that was the case.
Vance praised the ruling.
"We thought all along we had the law on our side, but it's good to see it actually happen," Vance said. "It would have created complete and utter chaos if they had gone the other way."
Officials with the Democratic Party and Gregoire's campaign did not immediately return phone calls seeking comment.
David Burman, attorney for the Democrats, has estimated that about 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.