In the extended entry I've posted the respective analyses from two seasoned trial lawyers with elections expertise. The first, from Shawn Newman, who posted his remarks in a comment on earlier post. The second, from our stealth analyst who is also acquainted with some of the main players in the Wenatchee case. Coming from different perspectives, they both seem to feel that it's too close to call, but with Rossi slightly favored. Stealth analyst goes so far as to conclude: "it may actually be slightly easier for [Bridges] to write the decision that voids the election" --
Newman:
Bridges could find that, consistent with the statute and court precedent [Foulkes], there is ample evidence of election errors, mistakes and, yes, even fraud, to void the election. This may contradict his pretrial decision requiring Rossi's team to prove fraud and that Rossi would have won but Judges can and do change their mind, especially as the trial progresses. He could rely, in part, on proportional analysis but that becomes largely an academic argument.Stealth analyst --On the other hand, Bridges could simply confirm the obvious (i.e. that, indeed, the election was a mess) but conclude that Rossi's team failed to prove by fraud or otherwise (e.g. proportional analysis) that he would have won by clear, cogent and convincing evidence.
Throughout this case, I've emphasized the pivotal role the SOS's office has in the litigation. Courts look to the agency in charge of implementing the law for guidance. The revelation that Handy was working to discredit the R's arguments may have raised doubts in the objectivity of the SOSs office. If so, Rossi wins.
After listening [to the closing arguments] again, my opinion that Dale Foreman's attempts to impeach Nick Handy was a serious mistake has been reinforced - one, I don't think it was successful (I'm sorry but I doubt the judge will read the Handy memo as part of partisan conspiracy - many of the early GOP claims were without support, just check out the response to the interrogatories the SoS sent the GOP), and two, it forced Tom to spend much of his closing arguments rebutting the GOP instead of restating the SoS interpretation of the applicable election contest standards (which has been consistently quite favorable to the GOP and certainly does not help the D's).Posted by Stefan Sharkansky at June 05, 2005 12:02 AM | Email ThisTactically, I think that the GOP should have played off the SoS instead of against the SoS - and done a "good cop bad cop" routine with the SoS being the "good cop". Let the SoS handle the statement of the law and have the GOP focus on developing a factual record that fits the SoS restatement of the law. Instead, they screwed up their lines and mangled their message - maybe enough to lose the lawsuit.
Then again, the facts are really clear that the administration of this election by King County got awful messed up (irrelevant whether by fraud or by negligence), and there certainly were a lot of felon votes.
That being said, the judge is going to run some numbers based on the various proportionate allocation models out there and based on the number of felon voters he's been presented with. He's also going to have to make a serious gut check as to how badly King County screwed things up AND what the actual impact of King County's screw ups were on the election count.
Some observations - I don't think D's ever established much credibility with the judge (I think their credibility was shot with their early motion to dismiss the case for lack of subject matter jurisdiction). In fact, in many ways the D's really didn't say anything more than "I don't think the GOP has quite met their burden" - even though it took them four days to say that (I also don't know why they called some of the witnesses that they did - their witnesses have done them more harm than good). Then again, I also don't think the GOP ever established much credibility with the judge - however, most of their evidence "speaks for itself" so they didn't need much credibility (which is why I think the impeachment efforts were just plain stupid - it probably just reinforced the judge's belief that the political parties would argue any position in their self-interest and reminded him of how often both parties have contradicted themselves during the course of this election dispute). So it really comes down to what Ahearne said - does the judge think the proportionate allocation model presented by the GOP meets the Frye test? If so, does the proportionate allocation model result in a potential Rossi election number?
That's really what this all boils down to - the GOP never really figured out a good way to pigeonhole the King County fiasco into the election contest statute. Nor did their experts really show us how we should balance the county election officer errors in terms of the respective counts. Then again, the King County fiasco was a really big screw-up and might tip the scales if the proportionate allocation of the judge's arithmetic of the illegal votes results in a very close number.
I don't envy Judge Bridges this weekend - it is going to be an incredibly tough call by him and I can certainly see him rule either way (although it may actually be slightly easier for him to write the decision that voids the election).
Monday will be a serious nail-biter!
This is why the Republicans are gaining and the Democrats are waning.
The average person wants to hear cogent arguments and make their own decisions, they don't want to have some potty mouth liberal stuff the party line down their throats.
It's going to be an historic moment on Monday morning. Can't wait.
Posted by: Jeff B. on June 5, 2005 12:46 AMIt is what I thought I saw and heard, I hope I am not way out there hearing things different then they were stated.
Do you now doubt why the DNC is 'selling it's soul' to keep LIBERAL judges or at least an over abundance of them?
Where would our hope for justice be if we KNEW Judge Bridges was a LIBERAL plant!?
Cut the ROOT! RE-VOTE!!
Posted by: arky on June 5, 2005 05:14 AMHere is the reason:
No one in their right mind can say Fraudoire won the election in a "clear, cogent, and convincing" manner.
Decertify the KC results, then declare Rossi the winner.
KC would then be in such an uproar, THEY would demand a new election.
Posted by: djf on June 5, 2005 06:55 AM"The average person wants to hear cogent arguments and make their own decisions, they don't want to have some potty mouth liberal stuff the party line down their throats."
Agreed, but I'll go even further: people are sick and tired of the emotion-based rhetoric/arguments from the left. I believe mankind fundamentally yearns for the logical - the orderly - over the emotional - the random. They want objectivity, not subjectivity.
Jenny's whole case and especially her closing(!) was laced with emotion, not facts, logic and data.
Posted by: Scott in Carnation on June 5, 2005 07:59 AMHer final aria was an interesting portal into the liberal mind. Granted, she didn't have much to work with, but she seemed to meander between arguing something to the effect that "a smoking gun doesn't mean anything without the slug", and "why are those meanies picking on the poor public servants?" (never mind that the R's were taking aim as high in the organization as possible).
The first argument has some legal traction, the second (emotional) part was superflous (and probably counterproductive). So why did she ramble on with so much emotional hot air? I'm going to guess that that is the part that really motivates her. I don't think that right and wrong matters to her, I don't even think the law does. I think that her hatred of Republican meanies it what gets her out of bed in the morning. Filled with that, she went out on to the floor, prepared to belt out a tear-jerker, and then discovered on her feet that much of what she feels doesn't make sense. Thus the incoherent performance.
Posted by: Dogbert on June 5, 2005 08:26 AMWith all due respect to the two opinions, their is no doubt that the evidence shows that the election laws were not followed. That's the key point. How do you certify an invalid election?
Answer: you can't
Choices available? 1. recertify the results per the existing statutes or (if #1 is not achievable) 2. Invalidate the portion that was illegally certified.
The only question, it seems, is the method of correcting the invalid votes.
Another point is what to do with supervisors that ignore election laws. I believe that will be the most interesting part of the decision.
Posted by: Ken Muller on June 5, 2005 09:13 AMIndeed. More objectivity would solve many problems. Those who embrace the subjective, the relative, the altruist, etc. are on the losing side. If not now, then soon. The only way out of the complex problems that face our society is through reason.
We're never going to solve the problems of this past election through the subjective whining of liberals like Jenny Durkan. We must analyze what went wrong, admit it, correct it, and then place controls to make sure that is does not happen again. If anything, liberals want the exact opposite. They see this past election as a success, and want to make voting easier and more subjective so that they can use the subterfuge of an incoherent tabulation and reconciliation when needed.
Posted by: Jeff B. on June 5, 2005 09:20 AMThe judge's dilemma is to craft the judgment such that the supremos cannot overturn his decision. Right now it is 70% chance of overturning the results IMHO. Hope I'm right.
Posted by: sschu on June 5, 2005 09:34 AMAlaskaboy brings up something that has only been lightly touched on: a "third" way ruling. Most of the analysis and speculation has been along the lines of taking either the R arguements completely or the D arguements. The possiblity remains that Judge Bridges could craft something that is neither.There is a very good possibility --indeed liklihood-- that Bridges will pull such a rabbit out of the hat. Having practiced law in Washington for 20+ years, trying cases in counties all over the state, I can't tell you how many times it happened to me in a case (I don't have enough fingers and toes) that the judge ruled in a way that broke its own trail, not following what either counsel urged upon the court, oftentimes even so far as relying upon statutes and/or caselaw that neither lawyer had found or cited as controlling. In this case, adopting either the R's position or the D's position, as respectively articulated by them, invites a very strong appeal from the loser. My hunch is that Bridges already knows how he's going to rule, and he's known it for days. And whatever it is, he wants it to stand up on appeal. It'll be something a little different from what we've heard so far. Posted by: jaybird on June 5, 2005 09:57 AM
That's a big 10-4.
Posted by: Dogbert on June 5, 2005 10:40 AMI will add this (glimmer of hope): Korrell really hit a target when he suggested that King County's SNAFUs should not poison the rest of the State, and that a talking-to would not get King County to fix its problems. Judge Bridges may well decide that the only way to get the Augean stables cleaned is by requiring a new horse race. There were sufficient facts presented for him to find what he wants, either that the election was invalid or that the Rossi has not met his burden of proof. And Judge Bridges can "interpret" statutes or make precedent to reach whatever result he wants. He certainly does not strike me as the sort of judge who punishes clients for their lawyer's shortcomings; he is going to want to reach a decision that (1) he feels is best for the State, and (2) that won't get reversed.
So the question is, will he want to maintain the impossibly high burden of proof his pretrial rulings established, which reflect the law's favoring of status quo ante? Or will he apply a sniff test, and turn up his nose? This question seems incredibly easy for a partisan layman to answer, but Judge Bridges is not a partisan layman. Very tough call for a judge.
I think it's 51/49 for the R's. It should have been much better odds than that. Anyone know what the Las Vegas line is?
Posted by: Thoan on June 5, 2005 11:12 AMIt's actually worse than that, and that is significant. AFU, by itself, wouldn't favor one candidate over another. The fact that all of the errors favored one candidate shows AFU combined with fraud, even if it's thrid-party (distributed) fraud. A reasonable person can rationalize that randomly distributed errors can be allowed to stand, because they can rationalize that the outcome likely wasn't affected. No reasonable person can look at the evidence presented and say with any certainty at all that the outcome wasn't affected. But, then again, we are talking about a court of law here, so nevermind....
Posted by: Dogbert on June 5, 2005 11:25 AM1. Had transcripts of everything he said during the trial in context with what was occurring at the time he said it.
2. Had a list of objections raised - by party - and the Judges rulings and statements on those objections.
3. The Judges statements and rulings from the pre-trial, opening and closing arguments.
4. The Judges statements and rulings on the requests by both parties for submissions of evidence.
5. The Judges direct questioning of witnesses.
6. The Judges humor during the trial..
If one could create a *scorecard* of sorts from the trial - based on the Judges actions, rulings, statements, questions and humorous exchange - one may be able to create a picture of how the Judge is thinking and what he may or may not decide.
Posted by: Deborah on June 5, 2005 12:17 PMLike other posters, I think this ruling could go either way. In his earlier rulings the judge set really unattainable requirements that petitioners must meet in order to be successful. If he sticks to those rulings, the Rs will probably not prevail. However, during the course of the trial I believe the judge may have softened his attitude as more and more evidence on major screw-ups came out of KC. I'm hoping he wants to send a big message to KC that they can't maintain the status quo.
The phrase "if not now, when" seems to apply to this case. If this 129 vote difference is not an election contest case that can be successfully argued, when will there EVER be one? Since this was the closest election for governor in US history, my guess is never... making the election contest statutes meaningless.
Posted by: Tucker on June 5, 2005 12:18 PMsounds like you're advocating activist judgeship to me.
@Dogbert:
(...) The fact that all of the errors favored one candidate
that's not a fact... actually, not even a serious supposition.
shows AFU combined with fraud,
false premise... false conclusion.
No reasonable person can look at the evidence presented and say with any certainty at all that the outcome wasn't affected.
True. Too bad that's not the legal question.
R's had ample opportunity to face these issues down in America Votes legislation, but fear of reprising 2k Florida pretty much swept that one under the rug.
Just goes to show, what goes around comes around.
Posted by: jdm on June 5, 2005 12:42 PM
Either Logan or his designee was required to take an oath before the canvassing board began to canvass the ballots. Did Logan or anyone take any oath prior to the written oath of Logan dated Nov. 17? Note that Logan's written oath didn't involve swearing "to the authenticity of the information presented to the canvassing board."
Note also that Logan has claimed ignorance about the false Provisional Ballot Summary Report, the false Mail Ballot Report, the material discrepancies in polling place ballot reconciliation, the material discrepancies in absentee ballot reconciliation, and the material discrepancies in provisional ballot reconciliation.
A key part of the process is having the person who presents information to the canvassing board swear to the authenticity of that information. Huennekens seems to have been the cutout man who stopped the flow of information to the board -- leaving the canvassing board in the dark and allowing Logan to claim ignorance. Since Logan left it all to Huennekens, was Huennekens under oath? If he wasn't, then Logan needed to inquire about the information being presented, rather than sit like a bump on a log.
The canvassing board was required to "verify" the auditor's abstract of votes. The law doesn't say what standard of proof must be met in showing that the abstract is a true representation of the votes cast -- but does say that the board must certify the returns by the deadline "if they can be ascertained with reasonable certainty."
"With reasonable certainty" means pretty much the same as "by clear, cogent and convincing evidence." So, it might be inferred that the canvassing board is supposed to use the same standard of proof in determining the accuracy of the returns as Judge Bridges believes ought to be used in determining whether to set aside those returns.
However, it seems obvious that King County's canvassing board didn't think they had any role to play at all in determining whether the official canvass report was a "full, true, and correct representation of the votes cast."
Look at their Nov. 17 "certification." They certified that the accompanying copy of the abstract of votes was a true copy of the abstract of votes. They didn't say anything at all about the truth of the abstract itself.
Look at the Nov. 17 Provisional Ballot Summary Report. A child who has learned basic arithmetic could quickly see that it made no sense. The total of ballots reportedly received from other counties was subtracted from the total of ballots supposedly issued by King County. Both those numbers should have been treated as positive numbers in reconciling ballots -- to show how many King County had in hand, and then to show what happened to the ballots King County had, whether those ballots came from King County voters or auditors in other counties.
Only a canvassing board that didn't know its duty -- or negligently failed to comply with its duty -- could have missed the false nature of the reconciliation reflected in that provisional ballot report.
By the way: Does anyone even know who among Logan's subordinates prepared that provisional ballot report? It concealed the material discrepancy between the number of provisional ballots issued and the number of provisional ballots properly cast. Knowing of that discrepancy, perhaps even a member of King County's canvassing board would have asked whether those missing provisional ballots were inserted into the ballot boxes via Accuvote machines. Who prepared that false report -- and why was it false?
Material discrepancies which Logan and his subordinates had a duty to disclose were concealed from the canvassing board.
The canvassing board then (sort of) certified the county's returns.
The legislature relied on the returns from all the counties and issued a certificate of election without inquiring to see if the returns were credible.
Now, rather than having someone in the governor's office who was "duly elected" as a result of the verification process required of county canvassing boards and the certification process required of the legislature, we have Gregoire in office based on an almost nonexistent verification process in King County and a completely nonexistent verification process at the legislature.
If it isn't our current law, should the law be amended so that -- rather than only look to see whether there is clear and convincing evidence that the apparently losing candidate got the most legal votes -- the courts would look to see whether the canvassing boards and legislature found with reasonable certainty that the apparent winner got the most legal votes?
What does it mean to say that (5) Any neglect of duty on the part of an election officer other than as provided for in subsections (1) and (3) of this section has occurred or is about to occur; or(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election," if it doesn't include an examination of how the certificate of election came to be issued?
This case ought to be one in which the courts consider the meaning of "neglect of duty" and "error...in the issuance of a certificate of election" -- and consider whether our laws already provide authority to set things right by setting aside an election that was certified in error.
If they don't, then the laws ought to be amended to require it in any future election contests.
Posted by: Micajah on June 5, 2005 12:47 PMAfter reading all the responses, I still think the judge cannot allow election personnel to ignore the law. That's an invitation to anarchy. The remedy must involve them.
Punisnment? Have the supervisore reconcile the mistakes precinct by precinct, within reasonable limits. If that cannot be done, disallow all the votes in those precincts.
If the subsequent final total shifts the election to Rossi, then disallow the election.
The beauty of that solution is the self serving culprits will be sacked by their own people.
The Supreme Court would be unlikely to reverse an order to correct voter errors. And it would be a warning for the future that those who perpetrate the errors would, at some point, be obliged to correct them.
Posted by: Ken Muller on June 5, 2005 01:43 PM
Thank you for providing an intelligent and well thought out commentary on the election contest. The conversation at SP has been quite civil and intelligent. This is in contrast to the juvenile name calling at the equine buttocks blog.
Keep it up!
Posted by: pbj on June 5, 2005 03:23 PM