Rossi v. Gregoire: Precedent for a Rossi court win
There is only one good example of precedent for a revote based on a court challenge in the State of Washington. In the 1975 case Foulkes v. Hayes, a revote was ordered in a race for County Commissioner in Adams County. The decision in that case, ordering a revote, is available here. I used Foulkes in my rebuttals to various Democrat arguments earlier. But since first reading the decision, I’ve been turning it over in my mind quite a bit and have reread it a few times, attempting to determine how it best fits with the current situation. Today, I’ve arrived at a conclusion: the two cases are startlingly similar, and if the law is applied consistent with Foulkes, Rossi will get the revote he deserves.
At first glance, the situation in 1975 is very unlike the situation thirty years later. In the 1974 Adams County Commissioner race, Kenny Foulkes bested incumbent Gordon Hays by 37 votes out of 3,025. Hays requested a recount, and recieved one–coming out victorious by 71 votes. Foulkes contested the election, and it went to court. It turns out that while the ballots were being stored in a vault in the county auditor’s office, someone altered several dozen of them–this was possible because the padlocked bags that the ballots were kept in were accompianied by their keys. Based on conflicting testimony of document examiners, however, it was impossible to determine how many of the ballots had been altered, and whether or not there were enough to change the results.
The Supreme Court upheld a lower court ruling which found that the county auditor had been negligent in storing the ballots in an insecure location, and that a revote should be held because the “irregularity was such that the actual result of the voting could not be ascertained.”
What with blatant voter fraud, keys in padlocks and feuding document examiners, this case doesn’t have many obvious similarities with the current fiasco, beyond the fact that a questionable recount reversed an election. But in actuality, there are more similarities than differences between the two.
In both cases, negligence by election officials clearly led to an increase in votes for the candidate initially awarded the office. The fact that in 1975 those extra votes came from fraud, and that today they came directly from the negligence itself is moot. The law clearly draws no distinction between fraud and negligence for the purposes of an election contest, and the Supreme Court decision clearly stated that it was the negligence, not fraud, that led the the revote.
In both cases, the actual total increase in votes is unknown and unknowable. This was the case in 1975 because document examiners could not agree which votes had been altered and which had not. This is the case today because it is completely unclear how many votes Gregoire gained from the 55,000 illegally modified ballots, the 1,800 (net) voterless ballots and the 348 unverified provisionals. But again, the reason for the situation does not change the situation, which is essentially the same as it was 30 years ago.
Everything stated here is settled fact. The only argument that I can see that Democrats can make against this is that it’s not clear that Gregoire gained any votes from the irregularities–this is notably different than the argument currently being made by Democratic officials, that it’s not clear that the irregularities were enough to alter the election. As we’ve seen, that’s not necessary. To make this new argument, Democrat lawyers will have to argue–with a straight face–that irregularities that added new ballots to the pot in the most overwhelmingly Democratic county in the State (let alone provisional ballots) might not have increased the Democrat’s lead. This is a sincerely silly argument.
In terms of actual facts, the two cases are significantly different. But in terms of the law, they are nearly identical, and the Supreme Court, if it follows the precident it laid down thirty years ago, will have no choice but to order a revote–again.
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January 14th, 2005 at 10:17 pm
Once again, you swing for the fences. Nice to have fresh wind put into my tired sails.
That said, this is the first I’ve heard of “keys in padlocks and feuding document examiners”. Could you please elaborate? Thanks.
January 14th, 2005 at 10:33 pm
Sorry if I wasn’t clear enough. The negligence in the 1975 case was the leaving of the keys with the padlocks that were supposed to secure the ballots. The feuding document examiners were the examiners that couldn’t agree on how many of the ballots had been altered.
January 15th, 2005 at 12:15 am
Timothy,
Perhaps a small point needs to be made about your analysis.
You say: “Based on conflicting testimony of document examiners, however, it was impossible to determine how many of the ballots had been altered, and whether or not there were enough to change the results.”
But the court’s opinion says on page 631: “On the basis of all this testimony, the court found enough ballots had been altered between the time of the original tally and the recount to change the outcome of the election. From this finding, and the fact that the keys to the padlocked sacks of ballots were accessible, it concluded the election officers had been guilty of ‘neglect of duty’….”
It is clear that the court was able to determine that enough votes had been altered to change the result of the election.
January 15th, 2005 at 12:28 am
Timothy,
I think you combined two statements in the court’s opinion and ended up misstating the trial court’s findings about the number of ballots. The trial court found that enough ballots had been altered to change the result, but couldn’t determine exactly how many had been altered.
On page 632 is this statement: “Thus there was ample opportunity for fraudulent changes to be made, and there was, in terms of the statute, negligence on the part of the election officials that made that fraud possible. Since the exact number of ballots which had been altered could not be ascertained, the court determined that the proper remedy for this neglect was the holding of a new election. From that determination these appeals were taken.”
January 15th, 2005 at 12:48 am
I agree Tim that Foulkes is an applicable case. However, the court seems to spend such little time on the reasons for overturn the election, it is difficult to know how they would rule in the current 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.
January 15th, 2005 at 8:00 am
If the Washington folks are opposed to dead people voting, I would suggest that you dig them up and ship them to Maryland. We never deprive the dead from voting here.
January 15th, 2005 at 8:27 am
Kudo’s…
Remember, the bar for proof of neglect and substantive errors has been lowered by KC’s own admission. In Foulkes, 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.
January 15th, 2005 at 9:29 am
If it please the court…
Some of the “facts” presented here remain in dispute. For example, it hasn’t been established that King County illegally modified 55000 ballots. Enhancement of ballots to enable optical scanning is allowed, provided that certain procedures are followed. KingCo claims to have followed those procedures and their practice has been before a court once and upheld. Rossi’s team claims that some of the ballots may not pass legal muster. He hasn’t said how many — and we don’t know if his claims hold any water.
The same is true of the 1800 (or 2150) voterless ballots. This number was arrived at by comparing a list of currently registered voters against the number of ballots cast on Election Day. KingCo has always said that the former list is incomplete and that it was not created for the purpose of reconciling ballot counts. The proper way to reconcile voters vs. ballots is to add the number of poll book signatures with the number of verified provisional and absentee ballots and compare them with the number of ballots cast. Not only will this provide a better reconciliation, but it will also show the dispersal of unaccounted for ballots. Finding a concentration of extra ballots is much more damning than finding an occasional unaccounted for ballot scattered over hundreds of precincts, especially if those errors are duly noted on the precinct tally sheets that were signed on election night.
Why do I bring this up? First, to caution readers that much of what we view as “fact” now may appear different during court hearings. Second, in order to show negligence on the part of KingCo (or other election officials), it’s not sufficient just to show that mistakes happened. Rossi is going to need to show that significant mistakes occured because election officials did not exercise reasonable care. It’s not clear that he has gathered enough evidence to make that claim.
Excellent post, as usual. Keep up the good work.
January 15th, 2005 at 9:37 am
One thing that is being overlooked from Foulkes is the “court’s general equity power to inquire into and to correct election errors”. This legal principal gives the court wide latitude to rule regardless of what RCW 29A states. This was the main legal principal used and upheld in Foulkes.
Many people have mentioned the “normal error rate” of an election. Their argument is that a rate of say .02% is quite normal. On face that is quite disingenuous. The margin of 129-votes is far less than the 2150 ballots (1800 voterless ballots + 350 estimated illegal provisional ballots) or the 55,000 enhanced ballots. The tremendous difference between the victory margin and the erroneous ballots is more than enough for the court to order a re-vote.
The other case cited by the Rossi complaint is the Gold Bar case. The key legal principal here is equal protection. This two is not being discussed much. Equal protection also gives the court wide latitude to correct errors that dilute the weight of a citizen’s vote and is not based on RCW 29A.
In short, allowing people that should not have voted and/or not allowing people who should have voted dilutes the votes of everybody and therefore can be grounds for overturning the election. This argument is very strong in this case because the margin is so low, unlike in Ohio where the margin was 118,000 votes.
First we have the wrangling over who will hear this case first - which Superior Court, the Supreme Court or the Legislature. A quick answer that will be right where it is know – Chelan Superior Court. The Supreme Court will not try the case, that is not what they are setup to do. Also, it would seem that the Legislature has abdicated its right to hear the case first by statute (RCW 29A) and by its decision this week to certify the election. If they wanted to try the case they should not have certified and called for a trial in the Legislature. In fact many Democratic Legislators said they felt the courts should make the decision.
After this the case will hinge on the answer to questions four areas of law:
1) As to the illegal votes as defined RCW 29A.68.020(5). These are voters that can be identified by name (felons, dead people, etc.) There will be an argument by the Democrats as to the exception in (5b), but it unlikely to prevail to any meaningful extent. There more illegal votes than the 129-vote margin. The leaves the court to answer the questions:
How or can the illegal votes be distributed between the candidates?
If a distribution is made does it change the result?
2) As to misconduct by election officials as found in RCW 29A.68.070. This would apply to illegal votes that cannot be identified by name (voterless ballots, illegal provisional ballots, enhanced ballots, etc.). Since these ballots are in the count because election officials committed misconduct (or even negiligence), they are covered by .070. To be sure there will be much argument as to whether these are illegal or covered by .070 at all. With the facts as they are known and admitted to by King Count, it should be ruled that these ballots are covered by .070. This leaves the court to answer the question:
Does .080 require that one prove that the votes were “procured” to gain advantage for the winning candidate?
Would rejecting the vote (all the votes) in affected precincts change the results of the election?
3) As to equal protection as discussed above. This applies to a combination of all illegal votes and people that were not allowed to vote as a result of action of election officials (i.e. military, improper signatures in some counties, etc.). The court will have to answer the question:
Was the right of suffrage denied and/or diluted to such extent that it had material effect on the election?
4) As to “court’s general equity power to inquire into and to correct election errors” as discussed above. This applies to a general overview of the facts and issues. The court will have to answer the question:
Do the facts justify overturning the election?
These are what can be called four doors to a re-vote. Only one needs to be opened.
January 15th, 2005 at 9:43 am
Okay, it was the 1975 case. Sorry, I now remember. Thanks, Timothy. Go get ‘em!
January 15th, 2005 at 9:48 am
Macajah: You say “It is clear that the court was able to determine that enough votes had been altered to change the result of the election.”
That is specifically untrue: Check page 636– “The expert testimony heard below indicated it was impossible to tell exactly how many ballots had been fraudulently altered, though the number specifically identified as tainted fell short of making up appellant’s margin of victory.” (emph. added)
Erik: The GOP has found at least two examples of unique negligence–namely, the illegal enhancement of ballots, and the unverified provisional ballots. If Dean Logan is right that people voted without signing in, then there’s a third unique example of negligence. These are all due to negligent actions by the King County election workers–at least as negligent as keeping keys with the padlocks.
Scottd–Sam Reed himself warned King County that they were cruising for a successful election contest due to their modification of ballots. That’s going to weigh in very heavily in the GOP’s favor. The 1,800 voterless ballots may not be a good argument (though the fact that Thurston county had zero difference speaks to negligence), but the 348 provisionals still are.
Everyone–I’ll remind you, again, that the law draws no distinction between purposeful fraud and negligence of election workers. Scottd is right, the lawyers will have to show that “reasonable care” was not exercised, but if that can be shown (which I think it can), the different error rates & sources of illegal votes between the two cases becomes moot.
January 15th, 2005 at 10:38 am
Timothy,
The voterless ballots can be identified by precinct. If any given precinct has a large percentage of them, it will be argued that “reasonable care” was not taken in that precinct. This will not be hard to prove. If it is the vote from the whole precinct can be rejected.
January 15th, 2005 at 10:43 am
Timothy,
What do you believe the court’s opinion meant on pages 631 and 632, then?
The statement made by the court on page 636 is arithmetically correct, but doesn’t contradict what the court said about the trial court’s findings on pages 631 and 632. If the trial court determined the facts based on the “expert” who said 46 of the 53 ballots he selected for examination from 12 of the precincts had been altered, then the court knew of ballots which accounted for a swing of 92 votes to Hayes. Hayes “won” by 71, having lost by 37 in the initial count. That means the recount resulted in a swing of 108 votes — more than the 92 specifically accounted for.
However, the expert had selected only some ballots from only some precincts for examination. I believe the court’s opinion is saying that the trial judge was convinced that an examination of all the ballots from all the precincts would demonstrate that more than enough had been altered to change the outcome.
Consider this: If the trial court had not found that a sufficient number of ballots had been altered to change the outcome, then there would have been no wrong in need of a remedy.
Only by finding that a sufficient number had been changed to affect the outcome could the court find that a wrong needed to be remedied.
Since the court didn’t know exactly how many ballots had been altered, it was impossible to announce the result of the election by correcting the election returns. So, the trial judge decided that ordering another election was the appropriate remedy — and the supreme court affirmed that decision of the trial court as being within the trial judge’s discretion.
January 15th, 2005 at 11:01 am
Macajah– Except that there were three document examiners, and they all disagreed over how many of those 53 were altered. Note that on 631, the Supreme Court is merely relaying the decision of the Superior Court, whereas in 636, it is stating its own binding opinion.
You say: “I believe the court’s opinion is saying that the trial judge was convinced that an examination of all the ballots from all the precincts would demonstrate that more than enough had been altered to change the outcome.” But I say that if they had meant that, they would have said that. They never reference any hypothetical further examination.
January 15th, 2005 at 11:28 am
Timothy and Micaiah,
I believe what the court was saying is that no matter how many changed ballots there were; it was convinced that the election was tainted. It was therefore its duty as a court of equity to order a re-vote.
January 15th, 2005 at 11:35 am
Timothy,
Here’s the arithmetic:
The vote swing as a result of the recount was 108 votes.
The “specifically tainted” ballots noted in the court’s opinion on page 636 totaled 53. Assuming each altered ballot changed a vote from Foulkes to Hayes, multiply 53 times 2 to get the vote swing that resulted from those 53 altered ballots.
That equals 106, which is less than the 108 votes by which the result changed.
The court said on page 636, as you quoted:
The expert testimony heard below indicated it was impossible to tell exactly how many ballots had been fraudulently altered, though the number specifically identified as tainted fell short of making up appellant’s margin of victory. [Emphasis added.]
There were no more than 53 ballots “specifically identified as tainted.”
That number wouldn’t have explained the 108-vote swing. To “[make] up appellant’s margin of victory” would require 54 ballots “specifically identified as tainted.”
However, as the court’s opinion noted on page 631, the trial court found that a sufficient number had been altered to change the outcome — and the supreme court accepted that finding.
The trial court apparently decided that there was no need to go and find one more “tainted” ballot to explain the entire 108-vote swing. He had seen enough to be convinced that the altered ballots had been sufficient in number to change the outcome.
Changing the outcome only required enough altered votes to erase the 37-vote lead of Foulkes after the initial vote count. Explaining where the entire margin of “victory” for Hayes after the recount wasn’t necessary.
It would have taken only 19 “tainted” ballots to change the outcome. The testimony showed there were as many as 53.
January 15th, 2005 at 11:55 am
Timothy: You’re right. The Secretary of State noted problems with KingCo ballot enhancement during the 2002 primary and recommended changes in the Feb. 2003 report you cited. In that same report, KingCo acknowledged that they were not following proper procedure during tabulation and promised to fix that.
In May 2004 the KingCo Citizens’ Election Oversight Committee repeated the SoS’s recommendation and noted that observers of the 2003 Primary reported that — during tabulation — enhancements were made in a manner that preserved original markings, under the observation of party observers, and logged. So progress was being made.
I don’t know if this fully addressed the SoS’s concerns, or if KingCo continued to follow their improved procedure. However, in Nov 2004, the GOP brought its concerns before Federal Court and sought an injunction to immediately stop KingCo’s enhancement. Their request was denied.
Just to be clear, I have no idea on the number of illegally enhanced ballots that might be in KingCo’s possession — but neither does anyone else. However, the GOP’s claim of 55,000 sounds preposterous. I wouldn’t put too much weight on this argument until more details are disclosed.
January 15th, 2005 at 11:57 am
Timothy,
As a follow-up: Wasn’t Rossi’s margin of victory 42 after the first recount, and wasn’t Gregoire’s margin 129 after the second recount? To change the outcome, you would need to find enough tainted ballots to erase that 42-vote Rossi margin of victory, not to explain the 129-vote margin of victory that Gregoire the Pretender gained as a result of the second recount. You don’t need to explain the entire vote-swing of 171. You only need to show that there were enough “tainted” ballots to change the outcome — by erasing the 42-vote lead of Rossi and giving Gregoire a one-vote “victory.” At least, that’s what you need to do, if the Foulkes case is accepted as good law and as the appropriate way to decide the currently contested election.
January 15th, 2005 at 12:04 pm
Timothy,
“Oops” on my follow-up: The GOP contest of the election is questioning things that occurred during the first recount as well. So, you would need to find enough “tainted” ballots to erase Rossi’s lead of whatever it was after the initial count. Was is 261? In the Foulkes case, only one recount was being questioned as having changed the outcome through neglect by the election officers that allowed enough altered ballots to change the outcome. In the current case, two recounts occurred — and Rossi’s lead was only whittled down in the first, then erased in the second.
January 15th, 2005 at 1:05 pm
I love that Timothy has turned from the RCW to the Foulkes case. IMO, that’s nearly all we should be talking about. However, as with the RCW I think he makes far too many presumptions of fact, and jumps over data to reach his conclusions.
First, Timothy says Foulkes had blatant “voter fraud.” That’s not true; it was official fraud. In fact, a significant portion of the ruling was to show it was NOT voter fraud, because the altered ballots were ruled not illegal, since they were initially properly cast. That finding of official fraud is important, because it is the trigger for annulment based on RCW 29A 68 .070 (I’ll just use the last three digits of that section from here if necessary). Misconduct or neglect is not sufficient to annul, and .070 says that fairly clearly–it cannot happen UNLESS it was such as to procure a vote or votes for a particular candidate. The persons committing it don’t need to be found, just the evidence of it. What they had as evidence of misconduct was two things: lax ballot security, and intentional altering of ballots to change who was voted for.
The difference between Foulkes and Rossi is that not only is there cited neglect, Foulkes had evidence of fraud facilitated by that neglect. So the standard for ballots in .110 not only did not apply, it could not apply–because of the ruling I mentioned that these were not “illegal” votes. The section that applies is .070, by which the ballots are only used as evidence of fraud, not as a tally of bad votes sufficient to overturn the outcome. For Rossi, Timothy says this:
“In both cases, negligence by election officials clearly led to an increase in votes for the candidate initially awarded the office. ”
I’ve yet to see anything other than speculation that makes this statement true in Rossi’s case. How does our current knowledge of ballots make it clear that Gregoire got an increase? It makes it possible, perhaps even probabilistic–but not clear. In any case, under .070, leading to an increase is not sufficient. It must be an increase procured by officials. As far as anyone has substantiated, that increase was not procured, it was effected. It was not MADE to happen, it just did. Similarly, when Timothy says the law makes no distinction between fraud and neglect–that’s just totally untrue, Tim. .070 makes very clear that distinction: fraud is intentional misconduct. Procurement is intentional, votes changed purposely for a candidate is intentional.
Then he states that the SC decision was clearly based on negligence, which I also think is contradicted. The known ballots were not enough to overturn, but that’s not the standard for those ballots anyway–they were not illegal votes under .110. They were a mechanism to determine fraud under .070. The negligence was the precipitator of fraud, but the fraud itself was the catalyst to annul.
As I’ve said before, Rossi’s problem is that votes he can track (felons, dead people) can’t be counted as illegal because they weren’t challenged under .020 .5(b), and the votes he can count as illegal (provisional, possibly enhanced) probably can’t be traced and thus can’t be evaluated under the .110 standard for illegal votes. And he’s got misconduct by officials, but nothing to prove intent to alter. Contrast that with Foulkes, which had:
1) Demonstrable neglect, as evidenced by fraud only possible through that neglect
2) Demonstrable fraud, as evidenced by ballots intentionally altered for one candidate
3) Sufficient numbers of the actual subset of presented ballots, that were identifiable for their voting pattern, such that even an incomplete count would lead to reasonable legal conclusions for the entire set.
I think since .110 didn’t apply to the altered ballots, all that was needed was 1) and 2) under .070, but I think 3) gave them an enormous comfort zone to declare the election fundamentally altered FOR A PARTICULAR CANDIDATE. Rossi doesn’t have any of these crucial factors, as far as I can tell.
January 15th, 2005 at 1:12 pm
Other comments–
Barry–I don’t think the ruling of jurisdiction gave them wide powers; it gave them normal powers, but asserted them in competition with the power of the legislature. It was a separation of powers ruling. As we see in 2004, there is discussion about whether the Leg or the courts are the venue to rule on a contested election. The Foulkes case citings you make are merely an assertion that indeed it is the courts who rule on these matters.
Micajah–I can’t see how the 42-vote standard would be used. He’s contesting the certified result of the election, which is G +129. You can’t contest an election until it is certified, and it was not certified at R +42.
Timothy–in your followup you said that Reed said they were cruising to a successful contest. That’s a little overstated IMO; he said it raised the chances of one. He might have said substantially raised it, but at no time did he say they were violating the law, to my knowledge. And IIRC, the King practices were reviewed and passed during the election. It would only weigh heavily on the court if it was determined that KC intentionally disobeyed official rulings on their procedures.
January 15th, 2005 at 3:18 pm
Torridjoe,
First, let me say that I’m not intending to argue the specific facts of the currently contested gubernatorial election, because I won’t pretend to know what they are. I am only trying to tease out of the Foulkes holding, the statutes, and the constitution what the law says about how the contested election should be decided.
I think you are too narrowly construing the law in this statement of yours posted above: [Note – I’m going to try to get all the “bold” and “italic” “tags” right on the first try. I don’t see a “preview” function on Timothy’s blog, so if it’s really messed up just remember that I tried!]
Misconduct or neglect is not sufficient to annul, and .070 says that fairly clearly–it cannot happen UNLESS it was such as to procure a vote or votes for a particular candidate. The persons committing it don’t need to be found, just the evidence of it. What they had as evidence of misconduct was two things: lax ballot security, and intentional altering of ballots to change who was voted for.
The statutes do need some interpretation into modern American English so that their meaning is easier to construe, but I don’t think they state that proof of “a vote or votes for a particular candidate” needs to be shown.
What they say is something very similar, so see if you think it is a distinction without a difference.
I think the statutes say that the effect of the “irregularity or improper conduct” must be great enough to cause Gregoire to be declared the winner.
If that’s correct, then the statutes would require evidence that enough votes were improperly credited to her that she appears to be the winner even though she’s not the legitimate winner.
What’s the difference, you say? (At least, I figure you’re saying that right now.)
I think a court that tried to apply the statutes’ language to the current contest would look first to see if there was “irregularity or improper conduct” on the part of election officials. If there was, then the court would look to see if the irregularity or improper conduct caused the election returns to show Gregoire as the winner.
That second step is the hard one to predict, because we don’t yet know what the evidence is, much less what evidence will be acceptable in a hearing.
My guess is that the person or persons who have the role of fact-finder may look to see whether it is reasonable to apportion the total number of “tainted ballots” [for lack of a better generic term] among the three gubernatorial candidates.
In other words, the decision would be based on what is probably the effect of those ballots – since the secret ballot makes it impossible to know for sure who voted for whom, and I’m assuming the “enhancing” of ballots will not turn out to look so similar to the Foulkes case that it plays a decisive role in the eventual outcome.
Here’s my effort to substitute modern American English for some words in the statutes, by putting the existing words in bold font and my suggested substitutes in brackets and bold font:
RCW 29A.68.070
Misconduct of board – Irregularity material to result.
No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as [“great enough”] to procure [“obtain for”] the person whose right to the office may be contested, to be declared [“a declaration that the person is”] duly elected although the person did not receive the highest number of legal votes.
RCW 29A.68.080
Misconduct of board – Number of votes affected – Enough to change result.
When any election for an office exercised in and for a county is contested on account of any malconduct on the part of any election board, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of the vote [“the entire vote”] of such precinct or precincts will change the result as to such office in the remaining vote of the county.
Now, as to my comments above about the number of “tainted ballots” that would need to be found in order to show that the election result would be changed by them:
I originally referred to Rossi’s 42-vote margin after the first recount, then remembered that some of the irregularities that have been alleged refer to actions that occurred during that recount. So, in my “Oops” follow-up comment, I noted that there probably has to be a sufficient number of “tainted ballots” to erase the 261-vote margin of victory that Rossi appeared to have after the initial vote count.
In the Foulkes opinion on pages 636 and 637, the court said:
Respondent’s [That’s Foulkes, who won at the trial court in the sense that he got an order for another election.] cross-appeal urges us to reinstate the results of the original tally of votes and overturn the trial court’s order of a new election. [In other words, Foulkes asked the Supreme Court to throw out the recount and adopt the initial vote count as the official result of the election – which would make him the winner without having to go through another election.] He provides neither authority nor sound argument for his position. The expert testimony heard below indicated it was impossible to tell exactly how many ballots had been fraudulently altered, though the number specifically identified as tainted fell short of making up appellant’s margin of victory. In light of this, the trial court was correct in holding that the irregularity was such that the actual result of the voting could not be [Then going to page 637:]ascertained and a new election should be held. It did not, therefore, abuse its equitable discretion in ordering such an election.
The order of the trial court is affirmed.
Note that back on page 631 the opinion stated that the trial court had found that there were enough altered ballots to change the outcome of the election.
Later on pages 632, 636 and 637 the opinion stated that the trial court didn’t find enough altered ballots to explain the total margin of victory for Hayes after the recount.
Those are two different things.
Enough altered ballots to erase Foulkes’ 37-vote margin of victory is far less than enough altered ballots to account for the 108-vote swing that resulted in Hayes’ 71-vote margin of victory after the recount.
I think what the fact-finder will look for is evidence that Rossi’s 261-vote apparent margin of victory was erased illegitimately as a result of “irregularity or improper conduct” during the first and second recounts.
January 15th, 2005 at 8:54 pm
Erik: The GOP has found at least two examples of unique negligence–namely, the illegal enhancement of ballots
I don’t agree with that. Negligence is a legal conclusuion that the court may or may not make. Certainly 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.
two examples of unique negligence–namely, the illegal enhancement of ballots
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:
The problem of the 348 provisional ballots
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.
(Nice post Micajah. You must have extra time on your hands)
January 15th, 2005 at 9:02 pm
I think what the fact-finder will look for is evidence that Rossi’s 261-vote apparent margin of victory was erased illegitimately as a result of “irregularity or improper conduct” during the first and second recounts.
Yes. This is why Rossi’s legal team appears to be two complete elements short of even getting in the ballpark for a new election.
First, there has been no misconduct as in Foulkes of election officials. There were errors made. However, given the great relative accuracy of KC (.01 percent v 1.7 percent in Foulkes), there may be no negligence at all.
Second, there has been no evidence that any of the allegations benefitted Gregoire. In Foulkes, the bag of ballots which were found to be intentionally altered went for the litigant at a rate of 46 out of 53.
January 15th, 2005 at 9:26 pm
Can someone set me straight on the 348 provisionals?
What was the total number of provisionals in Kingco?
If provisionals were not marked in anyway differently than normal ballots, how can Kingco know for sure that there are 348 provisionals that were fed directly into the machines?
Thanks, I’m sure this has been covered, but I haven’t read it. I keep wondering how kingco can claim there was 348 (not 350 or 347).
January 15th, 2005 at 9:28 pm
Erik - how would Kingco be able to claim 90% accuracy for ballots that they didn’t check? Isn’t the whole accuracy measurement saying that they checked the ballots, threw out the bad ones and still had a 10% error rate?
I suspect I don’t get it, but it doesn’t seem they could claim 90% accuracy for ballots they admit were directly fed into machines. Doesn’t the very fact they were fed directly into machines make them illegal ballots, because they were not verified to be from registered voters?
January 15th, 2005 at 10:19 pm
If provisionals were not marked in anyway differently than normal ballots, how can Kingco know for sure that there are 348 provisionals that were fed directly into the machines?
This is an allegation that many of us have been taking as true for point of argument. I don’t know he total number of provisional ballots cast. However, I understand it was arounf 15,000 or so. Its on Google somewhere.
January 15th, 2005 at 10:22 pm
Erik - how would Kingco be able to claim 90% accuracy for ballots that they didn’t check?
Ha. They don’t. That was the rate of the other provisional ballots.
Doesn’t the very fact they were fed directly into machines make them illegal ballots, because they were not verified to be from registered voters?
I don’t know. I wouldn’t go so far as to make that conclusion as they likely followed the same pattern as other provisional ballots.
January 16th, 2005 at 3:01 pm
Timothy, oh Timothy–
Did you notice what I posted above in the comment directed to “torridjoe”?
Note that back on page 631 the opinion stated that the trial court had found that there were enough altered ballots to change the outcome of the election.
Later on pages 632, 636 and 637 the opinion stated that the trial court didn’t find enough altered ballots to explain the total margin of victory for Hayes after the recount.
Those are two different things.
Enough altered ballots to erase Foulkes’ 37-vote margin of victory is far less than enough altered ballots to account for the 108-vote swing that resulted in Hayes’ 71-vote margin of victory after the recount.
Do you agree that the court’s opinion was talking about two different things on those pages, thus the statement on page 631 of the opinion contradicts your statement?
You said: “…it was impossible to determine how many of the ballots had been altered, and whether or not there were enough to change the results.”
The court’s opinion said on page 631: “On the basis of all this testimony, the court found enough ballots had been altered between the time of the original tally and the recount to change the outcome of the election.”
January 16th, 2005 at 4:09 pm
Micajah–
As far as findings of facts, I think you may be right that they are two different things. But I think that was irrelevant to the court’s final decision. What the court decided was relevant was that there was no way to tell how many more votes Hays recieved due to negligence. I don’t think their decision would have been any different if the first document analyst had only found 36 altered ballots instead of 46. They only mentioned one of the two things in their final statement, which implies that that was the only thing that mattered.
January 16th, 2005 at 5:21 pm
Timothy,
The court’s final statement was made in answer to a specific request from the respondent (Foulkes). He wanted them to toss out the recount results and declare the initial count to be the correct count. Their answer was, in effect, we don’t know for certain how many legal votes either candidate got, so we won’t do that.
The court only mentioned one of the two things at the end, because they were answering an entirely different question at that point.
Earlier, when the court noted on page 631 that the altered votes had changed the election’s outcome, they were answering a question raised by the petitioner (Hayes). Hayes wanted them to toss out the trial court’s ruling and let him be the victor based on the recount results. To answer that question, the court necessarily had to refer to the trial court’s finding that there had been enough altered votes to change the election’s result during the recount.
Of primary importance in the entire case was the fact that a wrong had occurred which needed to be remedied. That wrong was the improper conduct between the initial count and the recount which caused the results of the election to change.
Had the improper conduct not been found to have changed the election result, there would have been no wrong and thus no remedy ordered by the trial court and affirmed by the supreme court — Hayes would have been the winner because of the recount despite the improper conduct.
Your analysis is based on the idea that the court needs only to find that the election results are too uncertain to know who won for there to be another vote. That’s a misreading of the court’s opinion. There has to be a wrong that needs to be remedied, not just an election that might not have been correctly determined from the reported vote totals.
Only when the threshold has been crossed by finding that improper conduct or irregularity caused the wrong person to be declared the winner can the court then get to the question of what remedy to order.
If, after crossing that threshold, the court determines that no specific election result can be determined, then another election would be appropriate under the reasoning of the Foulkes opinion. (The alternative would be strange: “We hold that so-and-so is the winner of the election, but we don’t know how many votes he got nor do we know the margin of his victory.”)
There needs to be a finding that the apparent outcome is an illegitimate and incorrect statement of the actual election result before there is a need for a remedy.
January 17th, 2005 at 8:58 am
Finally got the time to read the Foulkes case carefully. It seems those who are arguing against a re-vote are missing a very key point. The court lays out its legal findings at the very beginning of the cite. The first item gives the legal basis for the courts calling for a re-vote:
[1] Elections - Contests - Statutory Authority - Altered Ballots. RCW 29.04.030 constitutes an implementation of the court’s general equity power to inquire into and correct election errors. The general equity power, which is granted to the superior courts by Const. art. 4, § 6 unless vested by law exclusively in some other court, applies to a claim of altered ballots, and includes the right to order whatever remedy is necessary to correct an error, including a new election where appropriate.
Nowhere is the word fraud or even misconduct mentioned. It just says to “correct election errors”. It appears that the reason for the errors is irreverent. What seems to be relevant is that there were errors and enough to put the election in question.
To be sure the RCW has been updated since the 1975 case, but it looks like the only real change was in the numbering (i.e. RCW 29.04.030 is now RCW 29A.68.11). If anybody knows of any other chances please us know.
There seems to little argument about the presence of errors and many of them. Also, after hearing both SOS Reed and Dean Logan say that the real winner cannot be determined, the court should have ample evidence and testimony to call for a new election.
January 17th, 2005 at 10:06 am
Barry,
You made the mistake of thinking that the “headnotes” which appear at the beginning are part of the court’s opinion. They are not.
On pages 632 and 633 you will find the actual language of the court’s opinion. Specifically regarding the court’s equity jurisdiction (which was the basis for the court’s action in the Foulkes case) the court stated on page 633:
“…a statutory recognition of the power of superior courts, acting within their general equity jurisdiction, to intervene in cases of election fraud or wrongdoing. Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, § 6, unless it were “by law vested exclusively in some other court.” We have upheld its exercise in quo warranto proceedings to contest election results brought completely independent of statutory remedies. State ex rel. Morgan v. Aalgaard, 194 Wash. 574, 78 P.2d 596 (1938); State ex rel. Hott v. Hamilton, 118 Wash. 91, 202 P. 971 (1921); State ex rel. Hyland v. Peter, 21 Wash. 243, 57 P. 814 (1899); State ex rel. Blake v. Morris, 14 Wash. 262, 44 P. 266 (1896); cf. Hill v. Howell, 70 Wash. 603, 127 P. 211 (1912) (original mandamus jurisdiction of the Supreme Court invoked to test validity of election). This authority, whether based on a specific statute or the general equity jurisdiction, carries with it “all the means to carry it into effect.” RCW 2.28.150. Where appropriate, these necessary and proper powers would include the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect.«4»”
But, you are correct in one respect: Fraud is not the only thing that can provide a basis for setting aside an election. What the court called “wrongdoing” or “neglect”, and what the statute calls “irregularity or improper conduct” can also provide a basis for setting it aside.
January 17th, 2005 at 2:02 pm
Micajah,
The Supreme Court put the head notes there and I believe they put them at the head for a very good reason. They, the head notes, are the legal findings of the court (both the Superior and the Supreme).
The title of the RCW is “Prevention and correction of election frauds and errors”. In short the court found they needed to correct the error caused by election officials that resulted in an election that was not equitable. The additional factual findings (that the elections officials committed “neglect of duty” which resulted in fraud, changing of ballots) are not the key to the ruling.
It would not surprise me to see a head note like this in the Rossi case:
1] Elections - Contests - Statutory Authority – Invalid Ballots. RCW 29A.68.11 constitutes an implementation of the court’s general equity power to inquire into and correct election errors. The general equity power, which is granted to the superior courts by Const. art. 4, § 6 unless vested by law exclusively in some other court, applies to a claim of invalid ballots, and includes the right to order whatever remedy is necessary to correct an error, including a new election where appropriate.
The only difference here are the cite for the RCW and the words “Invalid Ballots” for “Altered Ballots”. I use the word invalid ballots because using the word illegal ballots could be confused with illegal ballots of those that be identified. Invalid ballots are also illegal ballots but to fit rest of t RCW language of illegal ballots. The court may use another word for invalid, but I think invalid will do.
January 17th, 2005 at 3:57 pm
Yes, Barry, the headnotes are put there by the court clerk or the publishing company for a good reason: They perform the function of an index or table of contents, enabling you to go more quickly to the portion of the court’s opinion which is of interest to you. The “[1]” at the beginning of the first headnote corresponds to the “[1]” placed at the beginning of the text of the opinion where that point is discussed.
Those headnotes aren’t written by the justices, and they are not part of the court’s opinion.
It’s one of the first things we law students were taught about researching case law years ago.
The printed books containing court opinions ordinarily tell you the headnotes aren’t part of the decision, if I recall correctly. Unfortunately, the online version doesn’t seem to tip you off to that fact — unless it’s somewhere else on that web site.
The same is true for the headings and captions in the Revised Code of Washington — they, too, are not part of the law.
Since the RCW is meant to be accessible and understandable to people who are not law school graduates, they mention in the RCW that the headings and captions are not part of the law.
Read this section of Title 29A of the Revised Code of Washington, which is the Title of the RCW containing the elections laws, if you don’t believe me:
http://www.leg.wa.gov/RCW/index.cfm?section=29A.04.901&fuseaction=section
“RCW 29A.04.901
Headings and captions not part of law.
Chapter headings, part, subpart, and section or subsection captions, as used in this title do not constitute any part of the law.
[2003 c 111 § 159; 1965 c 9 § 29.98.020. Formerly RCW 29.98.020.]”
Other than that, I don’t understand what you’re disagreeing with me about. I said:
“But, you are correct in one respect: Fraud is not the only thing that can provide a basis for setting aside an election. What the court called “wrongdoing” or “neglect”, and what the statute calls “irregularity or improper conduct” can also provide a basis for setting it aside.”
Are you saying something different from that?
January 17th, 2005 at 4:55 pm
Micajah,
No, I am not saying anything different than:
Fraud is not the only thing that can provide a basis for setting aside an election. What the court called “wrongdoing” or “neglect”, and what the statute calls “irregularity or improper conduct” can also provide a basis for setting it aside.”
The Foulkes case makes this clear.
The Gold Bar case that is cited in the Rossi complaint goes a lot farther than Foulkes. After just a first reading of this case I believe the Supreme Court ruled that in the case of illegal votes that can be identified by name that a challenger does not even have to show error by election officials. The mere fact that votes “cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law” is enough.
This means that for the illegal votes cast by felons, dead, double (or more) votes, voters that used an address that was not their residence (i.e. mail box, flop houses, storage facilities) etc.; Rossi will only have to prove that they did “not cast in the manner provided by law”.
I need to research to give a complete argument about the “not their residence” people, but I believe these voters will be considered illegal like the felons. It appears to be the ruling in Gold Bar.
In summary, for the voterless ballots and enhanced ballots Rossi will need to prove only that election officials committed errors (“irregularity or improper conduct”). For the illegal ballots, only the verified existence of these is enough.
January 17th, 2005 at 7:05 pm
Barry,
The effect of the Gold Bar case is hard to predict without knowing what part of the statute that provides for an election contest based on “illegal votes” was amended in 1983. I don’t think I know enough about it yet to be fairly sure of how it will be applied.
The opinion quotes a portion of what apparently was the predecessor to RCW29A.68.020. Back when the opinion was issued in 1983 (and, of course, at the time the contested election arose before that), it doesn’t look as though there was a part that said what the current statute says.
Compare the opinion’s quotation of the statute back then to what is now on the books.
Back then, it was:
” Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election for any of the following causes:
. . .
(5) On account of illegal votes.
All election contests shall proceed under RCW 29.04.030, as now or hereafter amended.”
Now, it’s:
” (5) On account of illegal votes.
(a) Illegal votes include but are not limited to the following:
(i) More than one vote cast by a single voter;
(ii) A vote cast by a person disqualified under Article VI, section 3 of the state Constitution.
(b) Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.
All election contests must proceed under *RCW 29A.68.010.”
And note that this section of the RCW was amended in some way during the 1st extraordinary session of the legislature in 1983 — which may have been after the supreme court issued its opinion:
“[2003 c 111 § 1702; 1983 1st ex.s. c 30 § 6; ….”
It seems pretty clear that the Gold Bar court wasn’t enamored with the statute as it existed back then, and found a way to retain the ability to remedy a wrong despite the statute. The justices simply decided that the two statutes weren’t in conflict, so their power under the more general one didn’t get cancelled by the more specific one.
Did the legislature come right back and amend the law to say “illegal votes” doesn’t mean those guys who were supposed to be challenged at the polls based on improper registration? It looks that way, but would the court now decide that its power to remedy a wrong has been hampered?
I sort of doubt it. I think the courts would do something like they did in Foulkes and hold that the strangely limited statutes involving a contest based on “illegal votes” don’t apply to the case at hand.
Maybe they won’t even need to decide that issue, since I doubt the current contest is going to hinge on improperly registered voters anyway.
One thing I noticed in reading the statutes again, while trying to understand Gold Bar is this language:
RCW 29A.68.011
Prevention and correction of election frauds and errors.
“Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that:
* * * * *
(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election.
An affidavit of an elector under subsections (1) and (3) above when relating to a primary election must be filed with the appropriate court…. An affidavit of an elector under subsection (6) of this section shall be filed with the appropriate court no later than ten days following the issuance of a certificate of election.”
Why is the case in Chelan County Superior Court? The case involves a certificate of election that has already been issued by the speaker of the house and president of the senate. I believe that makes the nature of the contest a quo warranto proceeding to determine by what right Gregoire is in the governor’s office. The supreme court has original jurisdiction of such matters according to the constitution. See this longer explanation:
http://crokersack.blogspot.com/2005/01/gregoire-pretender-and-writ-of-quo.html .
I sure hope the GOP attorneys don’t wait too long to ask the supreme court to take action. I ain’t an expert in such matters, but I’m worried.
The certificate of election was issued on the 11th. Granting that the GOP has been in court since before then, have they been and are they now in the appropriate court? Are they going to wait until 10 days have passed after the certificate was issued and see if the Democrats holler “gotcha”?
January 17th, 2005 at 7:27 pm
I do agree with you that illegal votes will only be a side issue in this case. The main issue will be the 2150+ voterless ballots. I have read the common arguments by those opposed to a re-vote the do not seem to line up either the RCW or case law.
No one is disputing the existence of the voterless ballots and even Dean Logan admits that the true election results cannot be known. These two together should be enough to overturn the result and require a re-vote.
Yes, we will have wrangling over who will hear this case first - which Superior Court, the Supreme Court or the Legislature. A quick answer is it will be tried right where it is know – Chelan Superior Court. The Supreme Court will not try the case, that is not what they are setup to do. Also, it would seem that the Legislature has abdicated its right to hear the case first by statute (RCW 29A.68.11) and by its decision this week to certify the election. If they wanted to try the case they should not have certified and called for a trial in the Legislature. In fact many Democratic Legislators said they felt the courts should make the decision. All three of my Democratic Legislators have quoted the same line (must be coming from somewhere above them) – “the issue is now in the courts, where it should be…”
I hope the people of Washington make the Democrats pay dearly in 2006, if they keep trying to postpone the obvious. It seems that the longer they fight the larger the percentage of people that want a re-vote grows.
January 17th, 2005 at 7:35 pm
Micajah,
As to original jurisdiction, I think Rossi camp filed the case before the certification to avoid the issue you addressed. The fact that the certification of election was granted a few days later should not cause a problem. But to be sure I think something should be filed with the SC before the 10 days period is up.
January 17th, 2005 at 10:22 pm
Barry,
I just finished reading the Gold Bar opinion:
http://www.mrsc.org/mc/courts/supreme/099wn2d/099wn2d0724.htm
In it, the petitioners were tossed out of the trial court when the judge ruled that the votes of nonresidents who voted in the town’s mayoral and council election weren’t “illegal votes” that could be used as the basis for an election contest.
The supreme court reversed and sent the case back for a trial “on the merits.”
What caught my eye was the very end of the majority opinion, where the court stated a standard for setting aside an election that seems not to require a showing that the questioned votes caused the election result to be different from what it would have been without them.
Maybe they were a little loose with their words, or maybe there was some allegation in the petition that they didn’t mention (or I didn’t notice), but it seems to be a standard that only requires a showing that the invalid votes equal or exceed the margin of victory.
It could be that the court was simply saying that the appellants should get a chance to show at a trial of the facts that those 21 votes changed the outcome of the election, rather than saying that such a showing isn’t needed to set aside the election.
I would be interested in hearing your take on it. (You can chime in too, Timothy, if you’re out there somewhere.)
The page numbers don’t show up online, so far as I can see, but it is clear that the statement flows from one page to the next — since the footnote splits the text, and it’s at the very end of the majority opinion. The court stated:
Our disposition of the above issues makes it unnecessary to reach the constitutional question of inherent jurisdiction raised by appellants. Having offered evidence which, if true, would demonstrate that the election results of November 3, 1981, would have been different, «1»
«1» Appellants offered evidence that 21 individuals who were not entitled to had voted. The election results of three positions show margins of 21 votes or less. See appendix.
appellants are entitled to a determination on the merits pursuant to the terms of RCW 29.65.010 and 29.04.030.
The case is therefore remanded for action consistent with this opinion.
January 17th, 2005 at 10:34 pm
Micajah,
I am hoping to review Gold Bar more tomorrow.
Timothy, it might be a good idea to start another thread about Gold Bar.
Also, I have been watching the Chelan clerk site for any response from the D’s - none yet, just delay tactics.
I do hope that something is filed with the SC by R’s before the 21st, just to make sure.
January 17th, 2005 at 10:42 pm
Micajah,
Just a quick thought. I too felt the case showed the contestant did not have to show how the ballots were distributed or may be just told the lower court to give them the chance to argue that point.
Although we do not have the result of the “retrial”, one would have to assume if it did not result in a revote that Gold Bar would have filed another appeal to the Supreme Court. Since there was not an appeal I would guess the lower court ordered a revote without any proof as to whom the 21 people voted.
January 18th, 2005 at 12:43 am
The Supreme Court will not try the case, that is not what they are setup to do.
Actually, believe or not, Supreme Courts do hold trials. The U.S. Supreme Court held a trial…once.
Aside from that trivia point, does anyone have the litigation documents? Will anyone be posting them on their site? That would be great Tim!
January 18th, 2005 at 9:22 am
Erik,
Yes, Supreme courts can try cases, but as I said that is not what they are set up to do. If asked to try the case I think they would refer it to another court for trial and then review it.
You can get some of the litigation documents on Rossi’s site and a few others ont SOS site. As to getting all of them you need to pay for them at the Chelan Clerk’s site. They require you to sign that you will not distribute them. I quess since they are “selling” them the want to keep it exclusive. Only the people filing the doc’s can post them on the web and I doubt that the D’s will post theirs.
January 19th, 2005 at 12:23 am
If asked to try the case I think they would refer it to another court for trial and then review it.
Yes, I agree. However, the initial issue of jurisdiction is going to be a tricky one. I don’t know if its so simple to just have a trial court hear it. A middle option is to have a supreme court commissioner perform a trial. Unusual I agree.
You can get some of the litigation documents on Rossi’s site and a few others on the SOS site.
Thanks. I did get alot of the material from the SOS site.
January 19th, 2005 at 4:01 pm
[…] another contested election case. There are some significant differences between this case Foulkes that make it have slightly less bearing on Rossi’s challenge: no revote was actu […]
January 19th, 2005 at 6:44 pm
Neither the Foulkes nor the Gold Bar opinion set a precedent which would apply to the question whether the courts can order a special election to choose the governor, if the apparent outcome of the general election is ruled invalid (even assuming the courts have jurisdiction to rule the election invalid).
See my blog for an explanation and let me know what you think:
http://crokersack.blogspot.com/2005/01/can-there-be-revote.html
For those who wonder why Foulkes and Gold Bar don’t apply, note that Article XI of the state constitution has always given the legislature authority to enact laws that determine how elections of county commissioners and other county and city officers shall be held — and how any contested election would be decided.
By contrast, the constitution gives only the legislature the authority to decide contested elections in the cases of officers listed in Article III, section 1 (the governor, among others) — and requires that the governor be elected in the general election at the same time as members of the legislature are elected. Even in the event of a vacancy in the office of governor, no special election is authorized to fill that vacancy.
January 19th, 2005 at 11:24 pm
Micajah,
Here’s what I think. I like your post here on Timothy’s site. I believe you have the a unique take on when the governor’s election can be held under the state constitution.
On your own blog though it looks as if someone else is writing the text as you start name calling Gregoire calling her “Gregoire the Pretender”. Maybe you have an alter internet ego for that site. Its tough read any legal analysis with that kind of rhetoric.
Back to the case: so you think Article III would make all of the contest cases inapplicable for determining the governorship?
What are the legislative options? Should they hold an evidentiary trial?
January 20th, 2005 at 11:19 am
Erik,
My use of “Gregoire the Pretender” is based on my belief that she is not rightfully in the governor’s office:
http://crokersack.blogspot.com/2005/01/gregoire-pretender-takes-office-now.html
A “pretender” is a person who claims a “throne” but has no rightful claim. The term seems to fit Gregoire’s situation pretty well. Since I don’t believe she has yet been duly elected, I simply refuse to call her “governor.”
Rather than being bothered by this rhetoric, recognize it for what it is: my effort to let you know which candidate I would prefer to have in the governor’s office. I don’t fly false flags.
I try always to recognize what I want the answer to be — so I can try not to be misled by my own biases. I figure others would also want to know my bias.
In this contested election, I don’t think my bias has led me to the wrong legal conclusions, since I don’t believe Rossi would be better off having his case decided by the legislature. I might be wrong, but not because my bias in favor of having Rossi in the governor’s office has misled me. (I just concluded last evening that, even assuming the courts could decide the contested election, they cannot order a special election to give Rossi the remedy he wants, namely a revote. That conclusion goes entirely against every bias I have — except for my bias in favor of following what I believe are the rules on the books.)
Regarding the effect of Article III on the applicability of previous case law: Those previous cases dealt with elections for county commissioner and city mayor and council members — which the constitution authorizes the legislature to handle through statute, including assigning the responsibility for a decision to the courts. But, elections for governor and the other statewide executive branch offices in Article III must — according to the language of the constitution — be decided by the legislature. The case law, then, hasn’t established a precedent (yet) for having the contested election of an Article III, section 1 officer decided by any branch of government other than the legislature.
I believe the legislature could — even at this late date — enact a law to establish the procedure by which the issue will be brought to the legislature for a decision. They could direct the fact-finding function to the courts — for a trial of the facts followed by a report to the legislature that spells out the evidence for their use in deciding the case.
Or, the legislature could simply hold hearings of its own to give the people contesting the election an opportunity to be heard — and then decide the contested election after those hearings have developed the facts.
The essential thing missing on January 10 and 11, when the legislature debated what to do, was a hearing to develop the facts. Democrats who claim that there “is no proof” should be grabbed by the lapels, shaken sufficiently to embarrass them, then required to identify what chemical product they had used that caused them to hallucinate and believe that a hearing at which “proof” could be offered had occurred.
Of course, there had not been (and still has not been) a hearing at which “proof” of anything could be established.
That’s why the legislature’s issuance of the certificate of election to the Pretender should be declared unconstitutional, null and void by the supreme court. It was a completely arbitrary act to issue that certificate without hearing and determining the facts first, and it was an unconstitutional act to issue it without first deciding the contested election.
The supreme court should order the Pretender out of the governor’s office while we await a properly made decision as to who is the duly elected successor to Gov. Locke.
January 22nd, 2005 at 2:34 am
It was a completely arbitrary act to issue that certificate without hearing and determining the facts first, and it was an unconstitutional act to issue it without first deciding the contested election.
Gosh, the read on your post was good until the above. I think Rossi (hereinafter “the Wanna Be”)
still has another shot at the contest through the legislature if indeed he is required to proceed in this manner.
How did you reach the conclusion that the legislature should have held an election contest before or at the certification? All of the constitutional and statutory schemes seem to suggest that contests are made after certification. The republicans position differed than yours. They contended not that the legislature should handle the contest but that certifying the election was a substantive act and that they should wait to certify until after the courts handled the contest.
As far as proof is concerned, I don’t think the republicans agree with you here either. If they had adopted your theory as to Article III, they would have submitted what evidence they had to the legislature and requested a hearing from them. However, I do not believe that the republicans have taken the position to date that the legislature ever had jurisdiction to handle the election contest. Of course, they know they would likely lose if this occurred.
Thus, I think that the republicans would agree that they haven’t proven anything. From my read of their briefs, they are seeking an evidentiary hearing from Chelan County where they submit evidence in hopes that the court will later enter some favorable factual findings.
I wish I had your optimism on Article III in that the legislature handles the election contest. If so, the Wanna Be doesn’t stand a chance. However, I still think the courts are going to be stuck handling the contest.
As much as I would like would like the legislature to handle the contest in this election, I believe overall it is a very bad policy as it makes election contests completely political.
January 26th, 2005 at 5:12 pm
Erik, you asked:
How did you reach the conclusion that the legislature should have held an election contest before or at the certification? All of the constitutional and statutory schemes seem to suggest that contests are made after certification. The republicans position differed than yours. They contended not that the legislature should handle the contest but that certifying the election was a substantive act and that they should wait to certify until after the courts handled the contest.
I construed the words of Article III the constitution the way I would anything written in English – and in the way courts are supposed to do it.
Courts are supposed to give the words their ordinary meaning, unless the context in which they are used demonstrates that they have a meaning peculiar to that text.
Courts are also supposed to give all the words meaning, rather than construe some as having no meaning at all.
Applying those two rules, look at the text of Article III, section 4 as it pertains to contested elections of “such officers” – meaning those officers listed in Article III, section 1, which includes the governor:
Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law.
The people who argue that the legislature can delegate the job of deciding a contested election to the judicial branch of government give no meaning at all to the phrase “by the legislature.”
The legislative branch is, of course, vested with the authority to enact laws. So, it is apparent that the legislature is the branch which would enact the “law” that is referred to in the phrase “in such manner as shall be determined by law.”
Since the legislature unquestionably has legislative authority, the people who argue for a delegation of authority to the judiciary claim that the sentence in the constitution should be read as though “by the legislature” isn’t even there.
Take that phrase out, and their construction of the words still fits what’s left:
“Contested elections for such officers shall be decided…in such manner as shall be determined by law.”
Put the phrase back in, and give it meaning, and the first rule expressed by the words of that sentence is:
“Contested elections for such officers shall be decided by the legislature….”
The ending phrase then describes the nature of the decision making process that the legislature must follow when deciding the contested election – a process determined by laws enacted by the legislature after adoption of the constitution. The legislators aren’t supposed to simply follow their own partisan preferences in deciding the contested election, because their job in that situation is to determine who was actually elected by the votes of the citizens. (Contrast that with the purely political decision making process provided in the constitution when there is a tie in the governor’s race: The legislature decides “by the joint vote of both houses.” There is no mention of determining it by law – because the voters have not made a choice. The legislators are then free to follow their own partisan preferences in choosing the new governor.)
The constitution left it to the legislature to enact laws which would handle the details of deciding a contested election, but still required the legislature to make the actual decision about who was legitimately elected as the new governor.
The legislature has not enacted any such laws. The laws on the books contemplate a decision by the judiciary, not the legislature.
There’s nothing, for example, that says how anyone would petition the legislature for a decision.
There’s nothing that would provide for a delay past the ordinary day when the governor’s term in office begins in order to decide a contested election – even though the legislature has the authority to provide by statute the time when the governor’s term begins. Article III, section 4 states in its last sentence: “The terms of all officers named in section one of this article shall commence on the second Monday in January after their election until otherwise provided by law.”
The legislature has provided by law that the governor’s term of office begins “the Wednesday after the second Monday of January following their election.” (RCW 43.01.010)
If the legislature provided for a delay in the beginning of the governor’s term of office when there is a contested election, there would be no vacancy created in the office by the failure of the regularly elected governor to qualify by the date set in law for the term to begin. When there is a vacancy, the governorship devolves upon the lieutenant governor until a governor is elected.
With regard to your statement, “All of the constitutional and statutory schemes seem to suggest that contests are made after certification,” I disagree.
As I’ve stated above, the constitution states that the contested election shall be decided by the same body that is charged with issuing a certificate of election declaring who won the election. It’s common sense that the certificate would be issued only after the contested election is decided, assuming the legislature is aware that the election is contested. (It’s obvious they were aware in this case.) Putting a person in office who cannot reasonably be said to be the person chosen by the voters until the contest is decided violates an essential element of a republic – the selection of leaders by a vote of the citizens.
Even the statutory scheme in effect contemplates that a court could act prior to the issuance of a certificate of election:
http://www.leg.wa.gov/RCW/index.cfm?section=29A.68.011&fuseaction=section
RCW 29A.68.011
Prevention and correction of election frauds and errors.
Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that:
[Here I’m skipping several subparagraphs.]
(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election. [Emphasis added.]
The words “is about to occur in the issuance of a certificate of election”
clearly refer to a situation in which the court is acting before the issuance of a certificate of election.
As for the positions taken by the Republicans and Democrats, I don’t care whether my position is the same as either group. (Of course, since the Democrats say one thing in the legislature and another in court, it’s hard not to be on the same side of the fence with them at one time or another.)
The Republicans naturally wanted a delay in issuing the certificate of election and wanted the court to decide the contest – because they doubted the Democrats would give them a fair hearing. They were right in one respect and probably right on another: Issuing the certificate should have been delayed until the contested election was decided, and the Democrats probably wouldn’t have given them a fair hearing.
The Democrats in the legislature – giving them the benefit of the doubt – didn’t want to be in a position of deciding the election. They were aware of the fact that more than half the voters thought the legitimate outcome of the election couldn’t reasonably be said to be a Gregoire victory. If the Democrats took part in deciding the contest in the legislature, they risked alienating more than half the voters or alienating their core constituency. They were in a damned if they do and damned if they don’t situation.
The Democrats in court, of course, waited until Gregoire took the oath of office and promptly filed a motion to stay the proceedings – asserting that the contested election must be decided in the legislature. I’m giving the legislators the benefit of the doubt by not concluding that they knew exactly what was going to be argued in court by their counterparts.
The positions taken by the two parties matter only to the extent that the actions they took as a result of their positions affected the facts and therefore the application of the law.
Now that the legislature has failed to decide the contested election before issuing the certificate of election, the facts have changed since January 12 at about noon. Now, there is someone in the governor’s office whose right to be there is in question.
There is no doubt, based on the debates and votes in the legislature that the legislature didn’t decide the contested election – and now the time has passed at which they needed to decide it.
That being the case, the courts come into the picture via their constitutional power to decide the question in a quo warranto proceeding and (to the extent that the courts’ inherent constitutional power has been codified) pursuant to statutory powers to decide contested elections.
At this point, I think it’s arguable that the courts could decide that Gregoire has no right to be in office until the contested election is decided. That would create a vacancy in office which would be filled by the lieutenant governor until either the contested election puts someone else in office or a new election in November chooses the next governor.
For an extended discussion of how I believe the case could be handled from this point, see:
http://crokersack.blogspot.com/2005/01/vacancy-in-governors-office-could-be.html
Oh, and as for optimism about how the legislature might have handled the contested election — I’m not optimistic, I just want the laws to be followed until they are legally changed.
June 3rd, 2005 at 8:38 am
[…] the trial, is that the best early public analysis of the situation was done by yours truly way back in January. I wrote then that the Foulkes vs. Hays case, which set the precedent for a succes […]