Here is the full transcript of Judge Bridges' rulings from Monday.
Posted by Stefan Sharkansky at May 06, 2005 04:59 PM | Email ThisAs for the requiring the repubs to show more data on felons voting, he simply is saying, give more data, make it a tight case, and I'll allow the statistical analysis.
For example, he said that he required the republicans to show that there was a vote for governor on a ballot. Well, we know we can't show that, because we can't match the voter to the ballot. However, as he said that, he aluded to the fact that he hadn't thrown out the statistical analysis, in other words, there may be something there....
So, if 99% of voters voted for governor, then 99% of felon votes can be assumed to have voted for governor. It seems he was just reminding the repubs not to forget that not all felons may have voted for governor...and that is something that could be used to overturn his ruling on appeal.
Posted by: VaCSProf on May 6, 2005 08:52 PMThe judge noted that counsel didn't brief their arguments on the standard of proof. One of the Republicans' lawyers raised the issue in oral arguments. The judge ruled that "clear and convincing" is the standard, rather than "preponderance of the evidence" which was the standard accepted by the supreme court in Foulkes v. Hayes. "Clear and convincing" is a tough standard to meet. It's hard to imagine why the R's lawyers didn't even think to research and brief the issue.
The judge noted that the Republicans' counsel didn't brief the "theme" that he saw reflected in many of the Republicans' submissions, that is, their idea that showing errors affecting more votes than the margin of victory was enough. Since the R's lawyers had never researched and briefed the issue, but time was short before trial, the judge ruled without benefit of any arguments from the R's -- their "theme" is wrong.
The judge believes the crediting of voters has nothing to do with authenticity of the election. Again, the R's lawyers apparently never briefed the judge on the legal requirements and the elections process. They seem to have cited only the statute which requires the voter registration records to include the date of the last election in which each individual voted. They didn't cite the statutes which require the crediting of voters on election day at the polls and at the time their ballot is accepted in the case of absentee voters. Now, the R's will have to march uphill, if they ever get around to offering evidence about the "voterless ballots" and the damage done to the integrity of the election by Logan/Huennekens/Sanchez's decision to conceal the PBAV problem and commingle the provisional and regular polling place ballots during the second recount.
If this were a boxing match, the referee would be edging closer, getting ready to stop the beating of the defenseless and punchless Republican lawyers.
I'm not sure I have the stomach to watch any more of this.
If anyone thinks the fight is going better for the R's, please explain.
Posted by: Micajah on May 6, 2005 09:05 PM1. I see they have Nick Handy as one of the three attorneys of record for the Sec. of State. Interesting since he no longer works for the attorney generals office having left there years ago to go in-house for Brian Boyle at the Lands Commissioner's office then, ran and lost for that office; then became Ex. Dir. of the Port of Olympia where he was roundly criticized for cutting a fat retirement "golden parachute" at taxpayers expense. The Port had to hire special counsel who recommended the Port sue Handy over the retirement. That has not happened. BTW, Nick's wife is long time Thurston Co. Superior Ct. Judge Paula Casey. I would imagine Casey knows Bridges.
2. Overall, my professional opinion is that Rossi's team is in trouble and here's why:
a. On proportional analysis, the court says its called a number of things "even ecological inference" setting the stage for potential denial at a Frye hearing. The Frye Rule says that if an expert's opinion is based upon a scientific theory or method, the theory or method should be one that is generally accepted in the scientific community. Bridges seemed to demean Rossi's statistical analysis by saying, essentially, there's no accepted name for it. Bridges made it clear that his denial of the D's motion to exclude statistical evidence "should not be interpreted as a pretrial ruling adopting the statistical analysis methodology...." My guess is that he'll exclude it at the Frye hearing.
b. Bridges wants the best evidence of voting. Rs wanted re rely on the voter registration files to prove illegal voters actually voted. Bridges said that won't do and sets forth 6 elements: that the individual was convicted as an adult; of a felony; not given a deferred sentence; not had his rights restored (in one of the 5 ways described by the Sec. of State); cast a ballot in the 2004 general election; and; marked the ballot to indicate a vote for a gubernatorial candidate. Call it the way I see it: Mission Impossible.
c. Bridges acknowledges his demand for best evidence of voting conflicts with his initial decision on allowing introduction of statistical evidence. Another sign that he is setting the stage for rejection of statistical evidence at the Frye hearing or thereafter by failure to prove the 6 elements per illegal vote.
d. Bridges closes the door on Rossi's argument that they do not have to prove which party was credited with an illegal vote, only that the number of illegal votes exceed the margin of victory. He dismisses prior state caselaw and states: "Washington's election contest statutes clearly require the contestant to show illegal votes or misconduct changed the election result based on RCW 29A.68.110 and .070." He said the cases relied upon by Rossi did not mention these statutes and involved fraud.
c. Rossi's team tried to argue the burden of prrof was by a preponderance vs. clear, cogent and convincing. When Rossi's team (Foreman) raised the issue, Bridges said "I hadn't anticipated specifically that that argument was before the court ..." Maybe Foreman shouldn't have raised it since it ends up Bridges rules against Rossi and imposes the stricter burden of proof. Add that to the 6 elements listed above and get a fork, I think Rossi's team is in trouble.
In hindsight, I think they should have gone immediately to fed court on the equal protection claim and/or sought a TRO from a sympathetic judge like Sanders once the shinanigans began. The longer Gregoire is in officer, the more R's (yes, Rs) and the main stream press paise her for her leadership last session, etc., the more unlikely any judge will invalidate the election. Besides, haven't you heard, the legislature fixed all the problems and Gov. Gregoire signed the bill. All is well, you can go back to sleep now.
If I were on your side, which I'm not, I wouldn't be so pessimistic.
1. While Bridges wasn't absolutely clear, I think his reference to the "clear and convincing" standard of proof, was limited to proving illegal votes that could have been challenged prior to voting, e.g. felons. He wasn't necessarily ruling on the burden of proof for proving offical misconduct and neglect. Although if he classifies the improper provisional votes as illegal votes rather than resulting from official neglect, the higher burden of proof would apply.
2. While he didn't rule on the proportional allocation, I get the feeling from his comments that he is definitely leaning towards permitting it. I think that would be incorrect. I'm hoping that the Dems can show that it's scientifically invalid. The GOP "expert" written reports by Gill and Katz, provided no theoretical, research or factual justication for apportionment, but just assume that its predictive of how the felons would vote. I assume they can offer some rationale in their deposition testimony, but so far their written reports only appeal to "common sense".
The fact that Bridges refers to the apportionment method as "statistical" and "ecological inference" shows that he has no idea what it is. Katz specifically didn't perform any ecological estimation using the regression techniques which are available, only simple proportions.
But Bridges appears likely to permit it because it is simple. One problem for the Dems is while they can discredit this method, they haven't proposed an alternative. So the judge is left with proportions or nothing, since neither side wants to question the felons.
Posted by: chew2 on May 6, 2005 10:15 PMI think you're just trying to get me to keep watching as the R's take a horrible beating. ;-)
True, Bridges didn't rule out "proportional analysis." But he obviously didn't rule that it's admissible either.
I think you've correctly characterized what has so far been made available regarding the testimony of Gill and Katz. Gill's work seems to be nothing more than what anyone could do -- figure out the proportion of votes in each precinct and apply that to the numbers of illegal or illegitimate ballots cast in each precinct. Katz doesn't seem to have done a statistical analysis that conforms to the facts -- he talks about 2 candidates, when there were 3; and he seems to say nothing about the possibility of a voter who casts no vote in the gubernatorial election. (I confess to skimming their reports, so maybe there's more than I noticed.)
I cannot imagine a good reason why the R's didn't present evidence on May 2 that would have satisfied Frye, if it exists. I guess they'll wait until the D's take the judge up on his invitation to request a Frye hearing -- or wait until the judge decides on his own, like they have on the other issues.
My pessimism is mostly inborn, but in this case it is exacerbated by the apparent lack of preparation, research and thought on the part of the R's lawyers.
As for not being on my side: I want a duly elected governor, and Gregoire isn't. Which side does that put me on?
Posted by: Micajah on May 6, 2005 10:45 PMMicajah~ "Which side does that put me on?"
Sides are for the visually impaired, people of sight walk down the center.
I thought the proportional analysis may have had some legs. However, both parties are going to have to concede that the felon voting pattern does not match the precinct or county voting pattern. Rossi's experts will have to agree to this as well.
Thus, even if the proportional analysis does pass Frye in some manner, what is the appropriate method to predict how the felons voted who are 95 percent male?
I have not heard any theory so far as to how this could be predicted. Does one make a statistical regression on KC and men? The matter could get very complex quickly even for a statistic expert with endless modifying factors depending on how many traits one throws in.
Should income level be included?
And of course, since felons cannot normally vote in Washington, I would expect there is no prior data.
Posted by: Erik on May 7, 2005 12:43 AMI noticed that too. The benefit is that he will go all the way through with neither side being able to appeal until the end.
The drawback is that if the Supreme Court believes he has erred in setting the legal standard, there may have to be a second trial.
The conspiracy angle is that the judge is letting all of the republican theories come out full force, strong and weak, and he will then methodically deny each and every one of them and eliminate any chance Rossi has leaving no chance of appeal.
Posted by: Erik on May 7, 2005 12:50 AMThis whole thing has shaken my faith in our system to the core and if this thing stands....well, I wonder why even bother paying attention to politics anymore, let alone bothering to vote....2008 will make this look like child's play.
Posted by: Hanna on May 7, 2005 01:36 AMIt was so obvious this time that I figured for once the entrenched powers around here would have to admit that they'd crossed the line. So it goes.
WA has a lot of nice attributes. Handful of other ex-Microsofties and I were thinking of starting our new business here. Think we'll head for somewhere where government isn't against us from square one and democracy is at least attempted.
So long, and thanks for all the fish.
Posted by: davmicro on May 7, 2005 01:39 AMRegarding the proportional analysis methodology--
I think the "clear and convincing evidence" refers to the sanitized felon lists. The Dems now claim 744 but I doubt that will hold. Remember, the R's must show Judge Bridges that it APPEARS Rossi won with clear and convincing evidence (felon lists). The methodology to show APPEARS probably falls in some range, wouldn't you agree? In other words, there is no PERFECT method. That said, I believe Bridges will ultimately allow a fairly simple precindt proportional analysis. The Dems will try to throw in strawman/boogieman what-ifs into the formula trying to make it all seem so complex the Judge must simply give up and throw the case out.
But never forget...there will be a final sanitized list of illegal felon votes. The Judge cannot simply ignore this list. Otherwise, he is saying someone could intentionally stuff the ballotbox...everyone knows it...but nothingcan be done??? C'MON!!
Micajah...chin up dude. If those anti-depressants don't work...a fifth of Jack Daniels will at least numb the pain.
Posted by: Mr. Cynical on May 7, 2005 06:33 AMOne more point, even if Bridges were to declare the election invalid, he cannot compel a new election which, as I understand, is the way Rossi wants to go. SO, what happens if Rossi's team wins? What's to prevent the D's from simply allowing G to stay pending the D legislature deciding on when and if there would be a new election ... or simply having Lt. Gov. Owen (D) play governor for the rest of the term?
Posted by: Newman on May 7, 2005 09:01 AMNice trite liberal-egalitarian play on words but life doesn't work that way. There is such a thing as truth and falsehood, and the truth almost never lies neatly in the middle of anything. Usually truth resides somewhere on a side/realm where it is valued – like the Republican Party.
The fact is that Micajah's observations are probably the most accurate interpretation of Judge Bridges rulings that you will read and – at this point – they are not encouraging. Micajah "want[s] a duly elected governor, and Gregoire isn't," and that puts him on the side of seeking the truth and against Democrats. I agree with Cynical to the extent that Bridges is obfuscating some activist Supreme Court justice's (very possibly another “Bridges,” as in drunken driver Bridges) reversal.
There are two reasons why I still have the stomach to watch this unfold:
1. It is never over until it is really over.
2. There is reason to believe that – “though the heavens may fall” – Judge Bridges is ruling on the law rather than personal prejudice like liberal judges so often do. If we have bad law, we must do what is necessary to change it. As Bridges rules, if the dust clears and we still have Gregoire as Governor, Republicans will continue to work to change things so we can eventually save Washington State from the communists.
We should not forget that Rossi, though he is the best candidate for Governor, was a long shot, and the fact that we have come this far against the tide of leftist trogs is remarkable. It means they are faltering.
Nevertheless, this thing is a long way from over.
Dino Rossi,
Hang in there, we’ll make it yet.
"Sides are for the visually impaired, people of sight walk down the center."
The only thing in the middle of the road is a dead armadillo.
Posted by: Chuck on May 7, 2005 02:43 PMForgive me here...
But I am reading through all 17 pages of the transcript and I am not seeing the cause for your alarm...
I will re-read it of course, but I am actually leaning closer to Keith's interpretation of Bridges rulings..Especially if this is from the transcript:
" 5. Either party may submit a list of illegal felon voters provided that it meets 6 elements required by the court "to the extent that it can be established".
Check out page 10 - line 1.(Actually begin page 9 - line 20) This is where Judge Bridges hands the Republicans a lifeboat ....."to the extent that it can be established" with regard to his 6 elements....
OK..I'll read on....
Posted by: Deborah on May 7, 2005 05:03 PMI believe you are correct! And in fact - it appears that Judge Bridges is almost gently chastising the Petitioners for NOT alluding to fraud in their argument.
And Yes! On pg 13 - the Judge is carefully explaining to the Petitioners - that though the rule they want the court to follow is ok and all - they would be better off using fraud in their argument (as in Foulkes) so the court wouldn't have to burden them with proof of causation.....
Micajah,
Go back and read pages 9,10,11,12 and 13 carefully.....
Let me know what you think.
Posted by: Deborah on May 7, 2005 09:17 PM
The R's lawyers sound like they need to be pointed in a different direction and get their act more together before May 23, based on this transcript. Rather astounding the turn of events since Monday - for an 85% ruling in favor of the Rossi camp and the remainder a tossup - the prognosis changed abruptly for the morbid continuation of status quo - yet this post expresses promise. So, Micajah - if you would be so insightful to link this analysis with the Judge Bridges ruling on Monday - how could this affect the case ?
Posted by: KS on May 7, 2005 09:51 PMThe R's are not positioning themselves to win this case if they leave this argument out - instead they are trying to avoid losing, which could backfire - with the slimy tactics the Democrats are likely to employ. So my counsel to the Rossi campaign is to throw the kitchen sink out there for the judge to examine - with the felon votes that change the victor as the centerpiece.
Posted by: KS on May 7, 2005 09:58 PMIt is unlike Micajah to throw in the towel this prematurely - and even more unlike him to post about it! I have sent Stefan an email asking him to review this thread and to comment.
To be honest - I just don't see what Micajah is talking about and I would think it is inappropriate for him to post so negatively (at this early stage of the game) - given his history of credibility here in the blog.
(Heh..Feigning injury and handicap in front of your opponent is in the Art of War playbook.....But is it necessary here?
Something is going on here......
Posted by: Deborah on May 7, 2005 10:26 PMThe judge would not appear to have considered the implications of his own ruling, namely, that any fraudulent election result could not be overturned as long as a secret balloting is allowed to take place. Instead, he appears to want proof of illegal votes for the defendant (which cannot exist while balloting is secret) before granting petitioner's claims.
This ruling should be appealed, perhaps to the Federal courts, as it would appear to serve only to undermine the electoral process envisioned by our Founding Fathers.
Posted by: Paul on May 7, 2005 11:15 PMThe judge appears to want all possible evidence brought before the court. As we have seen in the past, the deeper we dig the dirtier it gets!
This ought to be a Barn Burner before its over.