Tim Goddard burns his proboscis on the grinding wheel with legal precedent from the famed Foulkes v. Hayes case, which brought about a re-vote.
He says the current case is "startlingly similar."
The text of the opinion itself essentially discredits every single argument posited lately by both the Dems and their trolls who come on these blogs.
After reading the opinion and the applicable cites, I can't possibly see how the WA courts could do anything but find in favor of Rossi and order a new election. That is, of course, assuming that the would actually uphold their oaths and do their solemnly sworn duty...
Posted by: BOrange on January 14, 2005 11:35 PM
I agree that Foulkes is an applicable case.
Here are some important differences
The acts in Foulkes concerned around 50 of ballots that had been intentionally altered by someone. This is a fraudulent scheme to change the ballots.
An expert tesified that “every on of the ballots from the 12 challenged precincts were marked by a single person.”
There is nothing in the current governor election alleged which is similar.
I think another important distinction is the error rate. Foulkes concerned a commissioner’s race in Adams County which has a very low population compared to the entire state of Washington. Only 3,025 poeople voted.
Thus, the error rate was 1.7 percent.
Statewide in Washington, the error rate is alleged to be perhaps 3/100s of one percent. I think this is useful in considering how negligent the election officials are. Negligence is defined as behavior falling below the normal standard of care. The auditors are stating that there error rate is at an all time low.
Here’s the biggest difference : the case states that 46 of the suspected 53 votes contained votes for the winner of the election. Foulkes at 631.
Thus, the court in Foulkes was able to determine not only was there intentional fraud and a scheme but that the fraud gave the winner in the election a 46 vote advantage. The court had testimony concerning people who had viewed the ballots themselves and the vote cast. This is the element that the GOP fails completely to meet in their current contest.
The GOP has found some illegally cast votes which are present in every election. However, they have not been able to accumulate any evidence to date that the illegal votes helped Gregoire. In fact, many of the felons appeared to be voting for Rossi.
"However, they have not been able to accumulate any evidence to date that the illegal votes helped Gregoire"
I don't believe that's matters in the way the law reads or is interpreted. Its only if the number of illegal ballots cast could have impacted the results of the election. Clearly, there is proof that they meet that standard,
In an election where ballots are secret, how else could you expect the courts to rule?
Posted by: Ken Muller on January 15, 2005 05:36 AM'Negligence is defined as behavior falling below the normal standard of care. The auditors are stating that there error rate is at an all time low."
I believe you are comparing apples and oranges.
If you want to compare when and how illegal ballots were accepted at King County and then compare each type to the same errors at other counties you might have a point. However, if I understand your position, I think you are arguing that some level of negligence is acceptable.
That not what the election laws say. Any negligence that impacts an election is cause for redress.
Posted by: Ken Muller on January 15, 2005 05:53 AMA few felons voted in Pierce County
ADAM LYNN, SEAN ROBINSON AND KENNETH P. VOGEL; The News Tribune
Last updated: January 8th, 2005 11:05 AM
At least eight people convicted of felonies during the past two years likely voted illegally in Pierce County during November’s general election, The News Tribune has found.
...
The people identified in The News Tribune’s analysis voted without officially having their rights restored. In interviews with the newspaper, at least three said they thought they were voting appropriately. Two were mailed ballots by the county.
The News Tribune is not fully naming the felons because they have not been charged with voting illegally. And it was unclear Friday if they will be.
Glen D. voted. He figured if he weren’t supposed to, someone would tell him. In August 2003, he was convicted of drug possession and sentenced to 35 days in jail, followed by 12 months of community supervision.
Pierce County’s voter database shows that Glen was allowed to register to vote on Oct. 3, 2004 –almost the exact end of his sentence. But he has not received the certificate of discharge that would restore his right to vote.
“I didn’t know that I couldn’t vote,” said Glen, 43. “I didn’t know any different. Is it the Republicans that are throwing a fit about it? Because I voted Republican – I voted for Rossi and Bush.”
Paulette D., who spent two days in jail in early 2004 on a felony theft conviction, said she too voted for Rossi.
She said she fulfilled all the requirements of her sentence, although there is no certificate of discharge in her court file. The county mailed her an absentee ballot after she registered in July, according to county records.
“I didn’t even request it,” said the 31-year-old Tacoma resident. “I thought I’d done everything I had to do.”
Craig D. has voted in every election since he was 18. His absentee ballot arrived in the mail as usual, and he filled it out, voting for Libertarian candidate Ruth Bennett in the governor’s race.
He was in the midst of a one-year community supervision stint that followed a 30-day sentence. He was convicted of third-degree assault last summer, and he’s been paying various debts related to his case ever since. He, too, has no certificate of discharge.
. . .
Seven of the eight people identified by the newspaper as potentially illegal voters were among a list of 42 names given to The News Tribune this week by the Building Industry Association of Washington. The trade group aggressively campaigned against Gregoire and is continuing to aid Rossi.
The eighth person was brought to the newspaper’s attention by McCarthy, the Pierce County auditor, who was tipped by the man’s community corrections officer.
Building association officials contended that most if not all of the 42 people on their list are convicted felons who illegally voted. Association officials said they compiled their list by comparing the names of all the Pierce County voters who cast ballots in the general election with another tally prepared by Pierce County Superior Court of people convicted of felonies in the past two years.
. . .
In its own investigation, The News Tribune verified that the people supplied by the association were indeed convicted felons. The newspaper then ran their names through the county election office’s 800,000-record voter database. The newspaper also used address directories and phone books and other public records to match names with addresses and voter logs.
In two cases, the newspaper was unable to find any record in the county’s election database matching a name supplied by the association. In at least four cases, the county had properly canceled the voting rights of people whose names were supplied.
Some felons on the association list didn’t vote, and knew they couldn’t. James K. wished he could have. So did Richard B. Both men have the same names – sometimes the same addresses – as their fathers. People who share their names did cast a ballot, according to county records.
Among the 42 names provided by the association, at least 27 people had the same name as someone else listed in the county elections database. That made it impossible to determine whether the convicted felon cast the ballot alleged by the group. Of those, one man was convicted of a drug charge Oct. 21, voted Nov. 2 and had his voter registration canceled Dec. 17.
Four other felons had their voting rights properly revoked by the county. One felon’s name didn’t exactly match a similar name in the voter database.
The newspaper also eliminated another name from the list using a voter registration date supplied by the county. The date in the records was four years before the convicted felon supplied by the association was born.
http://www.thenewstribune.com/news/local/story/4419176p-4187231c.html
Posted by: baXter on January 15, 2005 07:57 AMI hope the courts will protect us against the party, but I fear not.
I'm taking one of my daughters into the city today for a CYO basketball game. I have a re-vote sign on my car. I wonder if the Brown Shirts will hassel me.
Wish me luck.
carla@preemptivekarma
Posted by: carla on January 15, 2005 08:39 AMRemember, the bar for proof of neglect and substantive errors has been lowered by KC's own admission. In Foulkes v Hays, the disagreement over the altered ballots was not the only thing in play. Mishandling of the ballots, no lock at all, altered ballots (remember the 55000 illegally enhanced KC ballots) and election officials not performing their duties all contributed to the ruling. Seems this case has extraordinarily similar underpinnings to our present contest.
Like many of you, I have very little faith in our courts...the Dems political machine has been entrenched for to long and their influence, coerced or otherwise, is frightening. They fear new and honest leadership, which is why they fight so hard and will do anything to keep the power.
Most of Us can, however, read. The findings in the aforementioned case are to close to our present situation and, most certainly, apply.
Here is a fact that seems to have eluded you: this
is a cause of action before a judge. That judge is
John Bridge. John Bridge will be the arbitor of the
facts and the law in this case, and you will not!
Since your comment provided exactly zero facts,
[nor does it articulate any points of law,]
I doubt Judge John Bridge will place any weight
on the conclusions you draw about the tenative
research you admit that you are only beginning.
If you wish to constructively and meanfully
participate in this debate may I suggest you
present some facts, or articulate some law, as
oppose to pontificating, and otherwise arguing
from your own authority.
Close. I am stating some level of error is acceptable before it becomes negligence. Only when behavior contains enough error and falls below that of a reasonable person does it become negligence.
Right now, I have not even heard of any allegations that the error rate with deceased voting..etc is any higher than any other county or any other state.
KC is actually saying that there error rate is one of the lowest ever on every measure.
Here is the definition:
Negligence Definition:
negligence is the committing an act which a person exercising ordinary care would not do under similar circumstances definition - or the failure to do what a person exercising ordinary care would do under similar circumstances.
KC will argue that given the number of ballots, the did pretty darn well on an absolute scale and a relative one for error rate, and thus, were not negligent.
remember the 55000 illegally enhanced
This is an interesting issue. Certainly I agree that if the 55,000 ballots were illegally modified, it would be a basis for the contest.
However, there are specific laws in Washington state and other states which permit election workers to determine voter intent.
WAC 434-261-080 Ballot enhancement -- Optical scan systems. Ballots shall only be enhanced when such enhancement will not permanently obscure the original marks of the voters. Ballots shall be enhanced by teams of two or more people working together. When enhancing ballots, the county shall take the following steps to create and maintain an audit trail of the actions taken with respect to those enhanced ballots:
I guess the GOP could argue about how one county or another enhanced some ballots rightly or wrongly. However, the conduct is required by law and many states have corresponding processes laid out for "enhancements."
Posted by: Erik on January 15, 2005 10:56 AMWhat is your position on neglect re: the 348 (at least) provisional ballots that were fed directly into the machines?
We're all well aware that after an audit several years ago, King County was presented with a simple, cost-effective solution: color-code the ballots. They were warned that if they did nothing, an election contest was likely sooner or later.
Now we're in the exact situation King County was warned about, because they did nothing, despite the fact that they were warned and offered a solution!
In a private industry lawsuit, that would be found to be neglect according to my understanding of tort law. Why should we hold our government ot lower standards?
Posted by: Larry on January 15, 2005 11:09 AMMore important at this point is this question: Which court has jurisdiction now?
When the lawsuit was filed in Chelan County Superior Court, Gregoire the Pretender had not yet taken the oath of office.
She has now taken that oath and assumed the office of governor.
So, the question is whether she has a right to be in that office. This question is answered through a writ of quo warranto, and the Supreme Court of Washington has original jurisdiction in a quo warranto proceeding involving state officers.
Article IV, section 4 of the Washington constitution states: “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers....”
The Democrats' lawyers were correct in raising the issue of the Supreme Court's original jurisdiction in this matter on Wednesday. There is no need to go further in the Superior Court right now, since the Supreme Court's original jurisdiction takes precedence over the jurisdiction of the lower court.
The GOP should be filing a petition for a writ of quo warranto in the Supreme Court to have that court determine whether Gregoire the Pretender is rightfully in the governor's office. (And probably a petition for a writ of mandamus ordering the legislature to do what the constitution required of them before they issued that certificate of election -- decide the contested election.)
Posted by: Micajah on January 15, 2005 11:12 AMIf, as I understand to be the case, the ballots whose original markings were obscured were commingled with the rest, the answer is unknowable. Had the Democrats acted in accordance with state law, the number of enhanced ballots, and the extent to which they'd been enhanced, could be determined. As it is, however, the Democrats have willfully destroyed any evidence that their actions had even the slightest shred of legitimacy.
Posted by: supercat on January 15, 2005 11:25 AMYour missing the point about the 55k enhanced ballots…its not they were enhanced. It is that there is no audit trail for subsequent review and moreover that a single standard for such enhancements was not in place, thus leaving ambiguous instructions among elections officials from all counties. KC election officials did not receive a counting standard, as reported by many observers until the majority of the hand recount was finished.
Bush v Gore case in large part was focused on the uniform consistency of the hand counting process across all of the FL counties.
Special Report:
Touring the Al Gore Presidential Library and Museum
By Leonard Albin
Published 1/13/2005 12:08:26 AM
Almost obscured by the climbing pink orchids and dense sub-tropical foliage in Boca Raton, Florida, a one-story, somber post-modern building of concrete and glass rises from the landscape. Though locals just refer to it affectionately as "that ugly damn place," the newly completed Al Gore Presidential Library and Museum is an important cultural site that should be part of everyone's Florida vacation -- even during the off-season. Just off I-95 in Palm Beach County, and convenient to the Pompano Beach Motel 6, this new historical and educational landmark is simply as magical as Disneyworld. Much more than a civic building, the Al Gore Library is a testament to one Tennessee man's heroic stand against adversity, who dared challenge the status quo with courage, resolve, and above all, a team of ferocious lawyers.
As my wife and I entered the soaring 20-foot-high sun-filled atrium and lobby, one nagging thought did keep coming to mind: Al Gore was never President. That much, of course, is true. However, the Al Gore Library's founding charter (signed by 162 nations) clearly states that it should be the popular vote, not the Electoral College, which elects presidents. Since this conflicts with certain language in The United States Constitution, the Library is not recognized as an official landmark by the Federal government and no public money was used in its construction. Instead, the Library was funded in large part by a generous grant from a mysterious "Warren," and has also received millions of dollars in contributions from donors who either believe that Al Gore really is president, or really was elected president, or was president for a month until the Supreme Court threw him out of office -- and from a much larger group of people who realize that Gore was not elected president but should have been, although he probably was elected after all, if all the votes were actually counted.
Soon, we were greeted by our docent, a retired high school shop teacher originally from Kew Gardens, Queens. "We got over ten thousand books here," he said, as he started the tour. Yet it wasn't books that first piqued our interest, but the question of whether it was appropriate to charge $15 for adults (and $7.50 for children under 12) for admission to a presidential library that had no president. But our docent wasn't bothered by that. "Al Gore won the popular vote," he said. "And he did seem to be president there for a while, at least on a couple of networks."
That philosophical matter solved, we turned our attention to the main feature of the airy lobby: a mural that stretched across the entire back wall. Here, enlarged to about 1,000 times actual size, was a print of a Mapquest map of Massachusetts Avenue in Washington D.C. -- the street where Al Gore spent much of his life. First, we saw the blue "X" marking his boyhood home at the posh Fairfax Hotel in the 2000 block, back when Al's Dad was a United States Senator. Then, we noticed another blue "X" marking the young Albert's prep school, the swank St. Alban's School, near the 3700 block. Nearby, there was another blue "X" at 3450 Massachusetts Avenue -- the former Naval Observatory that serves as the Vice President's official residence. Towards the eastern end of the Avenue, there was another blue "X" signifying Al Gore's 16 years' employment as a Congressman and Senator at the United States Capitol, conveniently located just two blocks from Massachusetts Avenue. (The huge Mapquest map was generated on a NASA Supercomputer and superprinter, by clicking repeatedly on maximum Zoom In.)
There was no blue "X" at the White House, of course, since there was no Gore presidency. Nevertheless, the Al Gore Library and Museum's curators have carefully considered what a Gore presidency would have been like, if he had actually won. As a result, the place proudly displays several fascinating exhibits portraying the projected great moments and achievements of a Gore Administration, as if they had already happened.
To combat global warming, there was Gore's ambitious National Central Air Conditioning, mandating that cool air be pumped into every building with four walls and a roof in America retrofitted with the proper ducts -- at no charge. This Act is commemorated at the Library and Museum with an original Jimmy Carter oil painting depicting the sun, with a red circle around it and a red slash through it. For consumer safety, there was the Mandatory Airbags for Bicycles Act, and in education, the No School Lunch Left Behind program, designed to help public school children learn the basic skills and fundamentals necessary for finishing Lunch. Yet the Gore Administration's finest achievement would have been The Beverly Hills Peace Accords -- a unilateral "statement of purpose" drafted by major film stars, directors, and producers calling on all the Nations of the World, large or small, or rich or poor, to stop fighting. As the Accords' Article I eloquently puts it: "Dude, can't we all just get along?" Yes, these are words to live by. The Accords exhibit was aptly dignified and austere, too: an original Jimmy Carter oil painting of George W. Bush, with a red circle around it and a red slash through it.
After we spent fifteen minutes marveling at these exhibits, and a half-hour enjoying Kosher hamburgers at the adjacent Joe Lieberman Delicatessen & Lounge, our docent led us down the hall and asked us to give our serious and undivided attention to the Library and Museum's principal attraction.
"Come here," he said, beckoning with a finger. "You gotta see this."
Inside a special, large acoustically-dampened room, seven cheerful uniformed Library employees were sitting at a long, low folding table, piled high with papers and cards. Behind them, a blackboard was covered with numbers and check marks and unfamiliar names like "Volusia" and "Osceola," and now and then somebody would yell out a number -- like "62" or "73." For a moment, we were drawn in by everyone's visible enthusiasm, and we almost called out, "Bingo!" But then we realized what this room was for. This was The Vote Counting Room. They were counting the Florida ballots from the 2000 Presidential Election again. Nearby, supervising the tally, was an Ernst & Young senior accountant and two heavily armed Florida State Troopers, who gathered the ballots each day at closing time and deposited them overnight in the largest, most secure vault in Palm Beach County -- the one at the Limbaugh estate.
"Who's winning?" I finally asked.
Our docent grinned and said, "It's still too close to call."
The Al Gore Presidential Library and Museum, located near N. Federal Highway in Boca Raton, Florida, is open daily (except holidays) from 5 to 4, in observance of the Supreme Court decision that gave George W. Bush the presidency.
Leonard Albin is a writer in San Francisco.
I think it is the strongest evidence the GOP has and can't be dismissed out of hand.
If it turns out enough provisional ballots were processed this way, this could substantiate the contest.
The problem with the provisional ballots that were fed in is that it could have allowed people to vote twice. Also, it permitted people who had no right to vote to vote.
Here's the other side though:
KC claims that 90 percent of the provisional ballots were valid which means an extra 34 ballots, on average, should not have been counted. If Gregoire received a twenty percent advantage in KC, then the provisional ballots woudl only have benefitted her by 7 votes.
If there is evidence, however, that one of the candidates had an operative that came into different polling centers and fed in 348 provisional ballots into the machines and it is established they all went to Gregoire, that would be a more serious issue like the conduct described in Foulkes v. Gorden.
Posted by: Erik on January 15, 2005 12:38 PMThe 348 ballots could easily be 348 fraudulent ballots that Moveon.org manufactured. In this case, they would be 100% for Gregoire, and 100% illegimate. How, with any certainty, can you refute this?
Posted by: Janet S on January 15, 2005 12:59 PMThink about that. Posted by: torridjoe on January 15, 2005 01:28 PM
Perhaps someone will say this at the trial.
However, from what I have heard from "Joe" who worker there for the republicans is that the provisional ballots were accidently placed in the machines by provisional voters at a number of different pricincts.
I haven't seen any suggestion that someone coordinated a plan to place the ballots in the machines.
Posted by: Erik on January 15, 2005 11:44 PM