Rossi v. Gregoire: What matters now
In all the hubbub if this election and all its accouterments, it’s easy to lose sight of what matters. Broadly speaking, the only thing that matters is the Washington State Supreme Court decision that will be made after the Chelan court decision is appealed. Within that, though, there are a lot of things that matter, based on Washington law, and a lot of things that don’t–and it can be easy to confuse the two. First off, let’s look at what the law actually says:
RCW 29A.68.020
Commencement by registered voter — Causes for.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:
(1) For misconduct on the part of any member of any precinct election board involved therein;
(2) Because the person whose right is being contested was not at the time the person was declared elected eligible to that office;
(3) Because the person whose right is being contested was previous to the election convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person’s civil rights restored after the conviction;
(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so;
(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. [That is, felons]
(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.[snip]
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 to procure the person whose right to the office may be contested, to be declared 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 of such precinct or precincts will change the result as to such office in the remaining vote of the county.RCW 29A.68.090
Illegal votes — Allegation of.
When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that illegal votes were cast, that, if given to the person whose election is contested in the specified precinct or precincts, will, if taken from that person, reduce the number of the person’s legal votes below the number of legal votes given to some other person for the same office.RCW 29A.68.100
Illegal votes — List required for testimony.
No testimony may be received as to any illegal votes unless the party contesting the election delivers to the opposite party, at least three days before trial, a written list of the number of illegal votes and by whom given, that the contesting party intends to prove at the trial. No testimony may be received as to any illegal votes, except as to such as are specified in the list.RCW 29A.68.110
Illegal votes — Number of votes affected — Enough to change result.
No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
Let’s go through the irregularities one at a time, and see how they stack up.
WHAT MATTERS:
50,000 ballots enhanced illegally: This matters immensely. These King County ballots were not read correctly by the vote tabulating machines, and so were taken out and “enhanced” so that the machine could read them. This is perfectly legal–sort of. The election workers are supposed to duplicate the ballots, not use wite-out on them, and the election workers enhanced them to the point that it was impossible to review those ballots, which was supposed to be done. This is in violation of state law. Even if only 1% of those ballots had been determined to be invalid, that may have be enough to throw the election back to Rossi. This is an irregularity (or misconduct) that is certainly material to the result.
1,800 voterless ballots: It sure seems like this should matter, based on the RCW noted in this Sound Politics post. If the votes really are from voters who voted without signing in, as claimed by Dean Logan, it certainly should matter. If they didn’t sign in, we have no way of knowing whether they were registered voters, or voted twice, or even citizens. If it’s something more sinister, then it matters even more. It could, conceivably, be beaureaucratic incompetence, losing thousands of voter names. But I somehow doubt that–and there’s no way to tell at this point. So obviously, this matters, even if Logan says it doesn’t. “This always happens” may be an excuse when “this” is smaller than the margin of victory, but it isn’t one now–again, it’s either an irregularity or misconduct material to the result.
348 unverified provisional ballots mixed with the real ballots: Once again, while this wouldn’t matter in a normal election, it matters here, because these disputed ballots are a great deal larger than the margin of victory. There’s no way of knowing if these ballots were signed by registered voters, unregistered voters, illegal aliens, space aliens or Mickey Mouse. This may be the strongest piece of the contest, as it has been well documented and was even anticipated before the election. This is clearly misconduct material to the result.
Felons voting: This obviously matters–it says as much right there in part 5.a.ii of the first quoted RCW. So far, having looked at only Pierce and Snohomish counties, the BIAW has found 89 felonious votes. If there are just 40 more found in King County or elsewhere, that invalidates the election ipso facto. If those aren’t found, of course, they won’t matter at all. According to the second-to-last RCW cited abote, the names of all the voting felons will have to be produced in court, which will be all sorts of fun–but it should be enough all by itself, let alone lumped in with everything else. UPDATE: 76 felons have been found in King County, bringing the total to enough to overturn the election–unless, as some Democrats are arguing, the court assumes that the votes were divided proportionally between Rossi and Gregoire, which, of course, we have no way of knowing.
WHAT DOESN’T MATTER:
Dead voters: It makes for some catchy headlines and some amusing pictures, but there aren’t nearly enough dead voters to even come close to having an effect on this contest. I’m glad they were found, though. It provides an example of election fraud that is easy to relate to, and has no doubt helped convince most of Washington that a revote is needed. It will not, however, convince a judge.
Systemic problems: Systemic problems, problems with election law as written, as important as they are to fix, will not help with the contest–namely, because the same systemic problems will almost certainly be in play in any revote. What needs to be shown–and clearly has been–is unique instances of illegal voting, or voting irregularities, that can be avoided in the next vote. Again, I’m still glad systemic problems are being brought to light, so that they can be solved. But again, it won’t matter to a judge.
Gregoire’s inauguration: This doesn’t matter a whit, according to the law. Don’t let anyone tell you different.
Polls and petitions: While these matter immensely in gauging the mood of the people, and certainly affected Rossi’s decision to go forward with the contest, they won’t actually come into play once the trial starts. This will be good to remember if the populace, understandably, starts getting tired of the mess (though I hope they’re in it for the long haul).
The 1,800 voterless votes in King County are not atypical: This is what the King County Elections department is arguing, and it doesn’t matter. It could be the most typical thing in the world for every animal in the Woodland Park Zoo to vote absentee, and it wouldn’t rise to the level of an election contest until it potentially changed the outcome. “We’ve always done it poorly” isn’t an excuse. UPDATE: SoundPolitics has a scoop that makes this argument matter even less. 1,800 extra voters is very, very atypical, in fact. In 2000 there were 1,200 or so extra voters, because voters who tried to vote but were unable to were credited as voting. That’s hardly the situation we have here. UPDATE 2: Sound Politics corrects the error. But the “similar numbers in 2000″ are pretty well useless as a comparison, for reasons explained at Sound Politics, and it’s dishonest of King County to present them for that purpose. We can’t know what, exactly, is typical. We can, however, know what’s legal.
Double voters: Once again, there aren’t enough of these to change the outcome–in fact, I think they’ve only found one (I imagine most double voters are smart enough not to use their real names!). True, like dead voters, if you add them to the felons, you get a larger number of illegal votes, but a number larger than 130 doesn’t matter, and proving additional, unneccesary facts, such as dead or double voters, won’t change anything. If 130+ felons doesn’t lead to a revote, then 140+ felons, dead people and double voters won’t either–and if 130+ felons by itself does lead to a revote, then the lawyers’ time and effort is better spent on something else.
But this will invalidate all close elections!: No, just elections that are close enough that the margin of incompetence and fraud is larger than the margin of victory. Check a history book–this is the closest election in state history, and may be the closest major election in the Nation’s history. And please note that the law doesn’t care if it invalidates all close elections: the law is the law.
Intent: Please note that the RCW’s pertaining to contested elections say nothing about intent. They don’t even use the word “fraud.” It doesn’t matter that you didn’t mean to screw up our elections, just that you did.
What about Ohio!?: The margin in Ohio was one thousand times greater than the margin here. ‘Nuff said.
WHAT MIGHT MATTER:
Military Ballots: My first inclination was to include this as a systemic problem that doesn’t pertain to the case at hand, but looking at the law as written–and the new allegations that King County lied about when they sent out the military absentees–it may rise to the level of “board misconduct.” Even if they didn’t lie, their undeniable foot-dragging could be argued to be misconduct. It’s probably the weakest link in the chain–but like dead voters, it’s something that people can easily relate to. It’s also one of the most reprehensible parts of this whole fiasco. (UPDATE: It appears that they were not lying… though, to be honest, I’d like to see some 3rd party confirmation.)
Looking at the facts right next to the law, this looks for all the world like an open-and-shut case. I can’t imagine the legal backflips and distortions that would be needed to not throw out this election. If any readers would care to give it a shot, I’m all ears. I certainly look forward to hearing the Democratic arguments in court. So far, they haven’t responded substantively to the facts, and I’m curious to hear what they say if they ever do.
UPDATE: Brian Crouch has a fantastic photoshop to accompany this post.
UPDATE 2: I just added two pieces, the “1,800 was not atypical” and the military ballot section, in response to the King County form letter posted by Hank Dorn in the comments. Thanks, Hank!
UPDATE 3: Just added double voters and a poor Dem argument to the “don’t matter” section.
UPDATE 4: Just added the “intent” and “what about Ohio” sections. On a completely unrelated note, I’d like to take advantage of the large amounts of traffic I’m getting, and suggest that anyone interested in the future of the Washington State Republican Party read this post.
UPDATE 5: Last update–I clarified the enhanced ballots section, and added the Sound Politics scoop to the “1,800 extra votes is normal” section. And I’ve continued the very good conversation started in the comments in a new post.
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January 12th, 2005 at 9:23 pm
Facts, we don’t need no stinking facts! We Won.
January 12th, 2005 at 9:41 pm
I wonder if the court will figure out that these statutes don’t apply to a contested gubernatorial election.
Until reading what you quoted at the beginning, I hadn’t realized that one of the sections of the RCW actually says it only applies to contested elections involving county offices — not statewide offices listed in Article III, section 1 of the constitution.
As you’ve quoted it:
“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….”
Ironically, that particular section seems to be the one the GOP has been relying on when they say they only need a sufficient number of tainted or illegal votes to exceed the apparent margin of victory.
It seems that, if any of these statutes apply to this contested election, RCW 29A.68.110 sets the standard for setting aside the election. That section appears to require some apportionment of the illegal votes among the candidates, based on the assumption that illegal voting was proportionate rather than concentrated on behalf of one candidate.
If that’s correct, then far more than 130 illegal votes must be proven.
If the 1800+ mystery votes and 348 illegally cast and counted provisional ballots in King County are shown to be “illegal votes,” then there seems to be a chance to set aside the election. Assuming there will be proof of significant numbers of illegal votes cast by people who are disqualified because of felony convictions and of illegal votes by people voting twice (once for themselves and once for the dear departed), the numbers may well work in favor of setting the election aside.
What if the court decides that the constitution means what it says, i.e., such contested elections “shall be decided by the legislature?” Would it be likely that the court would think that “in such manner as shall be determined by law” authorizes the legislature to put the actual decision making power in the hands of the judiciary?
January 12th, 2005 at 9:56 pm
God Bless you for your time, energy and tremendous effort. I don’t know what people like me would do if we couldn’t follow all of this through Soundpolitics, and all of the other sites I have found through it. Micajah, great input, you all are so darn informed! I am thankful for you.
January 12th, 2005 at 10:05 pm
I would say that dead voters DO INDEED matter. The evidence needs to show that at least 129 votes (that which could have made a difference) were illegally or wrongly counted. Dead people are part of that number. Indeed it does make for a good headline, especially combined with the 180 convicted felons who were found to have voted in Pierce, Snohomish, and King County so far. Thats over 129, right?
January 12th, 2005 at 10:11 pm
So what’s next?
DON’T LOOSE STEAM!!!!
January 12th, 2005 at 10:14 pm
this was great- thank you so much. I am concerned though about the legal battles the democrats may continue to pursue to keep pushing this back in court. Any thoughts??
January 12th, 2005 at 10:21 pm
Here is the letter I received today (Jan 12, 2005) from King County Elections:
Thank you for taking the time to voice your concerns and giving us the opportunity to respond. Please give us a moment of your time to consider the facts, and not simply the political rhetoric.
We are not aware of any evidence of fraud or misconduct parting the administration of King County’s election or recount processes. The rate of accuracy in any election in Washington State is approximately 99.9 percent. In a race this close, there is little room for even the smallest amount of human error; however, when errors do occur, election officials refer to our longstanding laws in place to ensure the errors are corrected in an open, fair and transparent manner. The record shows King County has done just that.
The standard by which King County Elections conducted this election is the same standard used in every county in accordance with state law.
Unlike Florida in 2000, Washington State has explicit election laws in place when human errors or discrepancies in the election process occur. This provides county canvassing boards and election officials’ structured and consistent guidance to correct mistakes (RCW 29A.60.210).
When staff became aware that a group of ballots were incorrectly categorized and rejected, we researched and corrected the error, a decision which was ultimately upheld by the Supreme Court (read the decision at http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=763992MAJ ).
We understand in a race this close, political rhetoric is at an all time high; however, it is important to step back from these accusations and look at the facts in a nonpartisan manner.
The facts show:
* All 39 counties added votes to their original election returns during the machine and manual recounts. This is expected. Five counties added ballots during the recount process, King County being one of those. The other four counties used the same state law to correct discrepancies and add previously uncounted ballots to their election returns. The additional 566 previously uncounted ballots included in the manual recount represents a .06% fraction of change in King County’s election return.
* King County did not change the way it conducts elections along the way. In fact, the county resisted efforts by the political parties to change procedures. Twice the Washington State Supreme Court validated King County’s election decisions in two separate cases filed by the State Democratic Party and the State Republican Party.
* King County military and overseas ballots were mailed on time and alternative faxed and e-mailed ballots were offered to voters whose ballots did not arrive in time. All voted ballots received prior to certification of the General Election were counted as long as the ballot was signed on or before November 2. In fact, only 16 ballots from the “military/overseas/Federal Write-in” grouping were received too late to be counted. For more information, please visit: http://www.metrokc.gov/elections/news/2005_01_05.htm
* The remaining difference in the number of votes cast versus the number of registrations credited with voting in the 2004 General Election is approximately 1,800 - an accuracy rate of 99.8% based on close to 900,000 ballots cast. This number is consistent with historic reconciliation rates for King County. In 2000 this number was 1,230.
* Election officials conduct every election in an open and transparent process and work together with the parties to hire poll workers and official party observers. To ensure questions were answered on time and in an efficient manner, election supervisors met with party observer representatives throughout the day and every night during the recount to address any questions or concerns.
* With nearly 900,000 ballots cast, King County issued and counted more ballots than almost any other jurisdiction in the country, second only to Los Angeles County, California.
We welcome your feedback and appreciate the opportunity to provide additional information in response to your concerns.
Thank you,
King County Records, Elections & Licensing Services Division
King County Admin. Bldg., #553
500 4th Avenue
Seattle, WA 98104
January 12th, 2005 at 10:27 pm
“When any election for an office exercised in and for a county is contested” I think doesn’t mean specifically only for a county office, although the wording is ambiguous. Which word modifies “in and for a county”? Is it election, office, or exercised?
January 12th, 2005 at 10:27 pm
that’s the exact same email i got from them 2 weeks ago. funny huh.
January 12th, 2005 at 10:41 pm
I’m kinda new to these blogs, since starting just with this screwed up election. There is one thing that I would like to point out here, something the idiot in office just can’t realize. Even if she is kept in office with no revote, she and her party have already lost big. People remember being screwed, and just like in Florida, the next election is going to prove disasterous to democratic runners. This past election, Florida had a 6% gain for Bush over the tight “tie” in 2000. Why? Because Gore tried hard to cheat his way into office. People remember that. Same will happen here, especially if there is no re-vote. In 2 or 4 years… Washington will be a republican/independent state. Mark my words.
January 12th, 2005 at 10:44 pm
Micajah– I’m with Michael, I can’t imagine that it really means you can only contest county races. Note that that language is only used in reference to misconduct of the county boards, not illegal votes. I would like to know what exactly they mean by that language–which is why it would be nice to have a real lawyer in here. Good catch, though.
Blair–Where’s the felon number for King County from? I haven’t seen it before. I still don’t think the dead people matter, because if there are more than 130 felons, their moot, and difficult enough to prove.
Hank–Thanks for posting that. Its interesting to note that everything they say is pretty much moot when it comes to the matter at hand. I may update the “Doesn’t matter” section with some of their assertions.
Darcy–I don’t think this will get any farther than the WA Supreme court. Though no doubt whoever loses there will appeal, I doubt the USSC will hear the case unless it directly relates to Bush v. Gore, and that will probably not happen unless Rossi loses. So I don’t think the Democrats will have anywhere to go if Rossi pulls this off. I’m sure they’ll think of something, though…
January 12th, 2005 at 10:53 pm
Timothy,
What about all of the illegal registrations of voters to storage facilities and private mailbox facilities? If there are enough of these illegal registrations so as to go above the 129 vote margin by an amount that could plausibly sway the election even with the illegal ballots breaking to the three candidates, then it would seem that there would be grounds for contest under 29A.68.090.
What say you?
January 12th, 2005 at 10:59 pm
First, this is by and far the best written piece I have seen from a blogger in this fight as far as information & analysis :-).
Flame-throwing rhetoric, I take the credit.
Tidbits of intel, SoundPolitics.com hand’s down.
Orbusmax.com is hyperlinking to THIS post. . .
January 12th, 2005 at 11:01 pm
I just realized that these statutes do apply to statewide election–duh! Just look at the first sentence: “Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election.”
However, Macajah does appear to be correct about the illegal votes thing. They are to be subtracted from each side–though there’s no way to know who each felon voted for, and dividing them proportionally seems foolhardy, since obviously felons may not votes like the rest of the community. That will no doubt be a major issue of debate
Jeff– I’m reluctant to say that will matter, based on part 5.b in the first RCW quoted: “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.” Double voters matter, but not really, because, like dead voters, we haven’t found enough of them to dent Gregoire’s lead.
January 12th, 2005 at 11:18 pm
Excuse me but I think we need to consider the COMBINED EFFECT of the felon, dead and otherwise improper votes. They all fall under the general catagory of being ILLEGAL votes. It is analogous to counterfiet money… it doesn’t matter whose picture is on it of if it was colored with crayons… it still isn’t genuine! I would think a perponderence of evidence will come into play here.
I hope my thoughts make more sense than my spelling!
Victor
January 12th, 2005 at 11:23 pm
Timothy,
My point about the inapplicability of these statutes is primarily based on my reading of the state constitution. It says a contested election of a governor “shall be decided by the legislature.”
Any statute that attempts to pass authority to the judiciary to decide such a contested election would be unconstitutional. So, attempting to apply these statutes to the contested gubernatorial election presents a problem: If they were intended to apply, they cannot — because they are unconstitutional.
My point about RCW 29A.68.080 is limited to the wording of that particular statute. It sets a standard for what is required to set aside the result of a contested election for a county-wide office — not a statewide office. Not only does it say that the office is “exercised for and in the county,” it refers to the county-wide vote at the end. The county-wide vote is irrelevant for a statewide election, so saying that the number has to be big enough to change the county-wide result would be silly if the law were intended to apply to an election of a statewide officer.
Yet, that statute may be the source of the GOP argument that they only need to find 130 illegal, improper, or somehow illegitimate votes to justify setting the election aside. I’ve seen the standard stated nowhere other than in relation to this statute.
January 12th, 2005 at 11:25 pm
Timothy,
Welcome back from vacation. Your logic and analysis was missed. Great article!
January 12th, 2005 at 11:30 pm
I noticed in it’s letter to Hank (and Darcy) from King County Elections there was no mention of the 50,000 improperly enhanced ballots and the unauthorized provisional ballots combined with legally cast votes. As for the divine intent of over/under votes by the canvassing boards, did they also see the Virgin Mary in a grilled cheese sandwich?
January 12th, 2005 at 11:34 pm
Your post Timothy is perhaps the most learned I have read to date on the election contest. Yes, the democrats will likely argue that the statute is unconstitutional.
Yet, that statute may be the source of the GOP argument that they only need to find 130 illegal, improper, or somehow illegitimate votes to justify setting the election aside.
Of course, this is much too low of a standard top overturn the election. I suspect the error rate for the 2.7 million votes cast in Washington State is a least several thousand from felons, dead voters, illigal voters, or other errors. The error rate can be reduced some but not entirely. For instance, it takes time to change the voters lists because people have died.
If the GOP position were accepted, there could never be a final close election. If the election were run again, Greogoire or Rossi could lead by 80 votes. Under the GOP theory, the election would have to be run a third time if 81 illegal votes were found. The error rate can be reduced some but not entirely.
January 12th, 2005 at 11:42 pm
What Matters
All I see that matters much from the law is:
348 unverified provisional ballots mixed with the real ballots.
All of the other factors wash as we do not know how they effected the election and occur in every state in every election.
On the other hand, the provisional ballots are troubling. However, if Gregoire received 17 percent of these when she shouldn’t have, she would receive a bost of only 50 votes.
Another analysis is that only 10 percent of provisional ballots are eliminated as being invalid. This only amounts to 34 invalid votes giving Gregoire only around 8 more that she should have.
January 12th, 2005 at 11:46 pm
Erik,
But you assume that a second election would end up with a result that was very close, which is statistically very unlikely. If even 1000 more voters had voted either way, we would not be having this discussion and there are many more than that who were registred and did not vote, but likely would vote in a second election.
You also assume that the second election would be run like the first in a way that would produce similar errors to achieve similar results which is even more unlikely. Given the ink that has been spilt on this election, it’s highly unlikely that a second election could be conducted without extreme scrutiny and the agreement by all that it was handled fairly.
January 12th, 2005 at 11:47 pm
I am so disappointed in the way this election was handled.I believe that we need to be able to trust our votes to be counted honest and fair,no matter what the result. I honestly feel that our govenors election was manipulated at the very least and may even raise to the level of fraud on the part of King county.
I am also extremly disappointed at the legislature rushing through a ratification of the election and confirming of Gregiore as Govenor when there are so many unanswered questions.
Thankyou for your good work,I hope you keep up the good work.
hopefully the democrats will pay a heavy price at the next election.
January 12th, 2005 at 11:55 pm
But you assume that a second election would end up with a result that was very close, which is statistically very unlikely.
It would unless great numbers of people changed their votes.
However, you are right in one aspect: a new vote would involve thosands of different people. Many would have died. Thousands would now be 18 and be now able to vote. Some people would have been convicted of a felony, other felons would have their records cleaned up enough to vote.
Of course, some who voted last election would not vote on the next one and some who did not vote last time would vote this one.
Overall, I would not be surpised if there were over 100,000 or more different people who would vote in a new election but not the last.
Thus, there is an error rate with a shifting electorate.
January 13th, 2005 at 12:11 am
“Bravo” Mr. Goddard for your common sense depection of what really matters and what doesn’t. Lets give these Gregoire protestors a lesson in morality that even Ted Kennedy would learn from…but lets also be real.Your formated instruction of providing the judges with the existing evidence along with the RCW’ s in the proper legal avenues would certainly ensure a revote to anyone looking outside in,but I’m afraid that’s just not good enough for the State of Washington.I have a feeling that others and myself in Washington State will feel the same shock as the OJ Simpson verdict when the Supreme Court rules its findings……However,that day will not come without a fight to the very end.Thank you so much Mr. Gooddard for your PASSION !!!! (and to the rest of you bloggers). Rossi or Gregoire, “IT HAS TO BE JUSTIFIED…IT HAS TO BE REVOTED”
January 13th, 2005 at 12:18 am
Erik,
I’ll leave the statistics on this to Stefan, but as I said before, and as you have reinforced, the chances of another close result if there is another election, are extremely low.
Not only will many of the voters have changed for the reasons you mention, and moving to other districts, etc. but many voters will likely have been influenced to change their votes by their opinions of how the candidates have handled this close race.
Using the possibility of a close race as a reason not to hold the race is quite foolish.
January 13th, 2005 at 12:19 am
Well, well this just came in:
King County met ballot deadline
http://seattletimes.nwsource.com/html/localnews/2002149473_ballots13m.html
“King County election officials yesterday released a log of absentee-ballot mailings to buttress their previous statements that ballots went to armed-forces members by the federal deadline of Oct. 8.
“Acting under the threat of a federal lawsuit, election officials scrambled to get thousands of absentee ballots out to soldiers, sailors and aviators stationed abroad for the Nov. 2 election.
“The log of outgoing mail shows that 1,853 ballots destined for armed-forces members were delivered to the International Station post office in Seattle on Oct. 7.”
January 13th, 2005 at 12:27 am
Using the possibility of a close race as a reason not to hold the race is quite foolish.
I agree. But that’s not my point. My point is that under the GOP logic, every election result under the the error margin would have to be run again which I believe is several thousand. That is why its not enough to find 130 felons who voted to have the election overturned.
I’ll leave the statistics on this to Stefan
Stefans good but I don’t think it would help. You have do more than extrapolate on an excel spreadsheet.
January 13th, 2005 at 3:42 am
The laws cited express two different standards for deciding whether the number of illegal votes is sufficient for a successful challenge. One (RCW 29A.68.090) looks at whether the outcome would be altered if ALL illegal votes were subtracted from the challenged winner. The other (RCW 29A.68.110) asks whether the outcome would be altered if the illegal votes going to each individual candidate were subtracted from that candidate.
The latter will not be knowable directly unless those who have committed fraud come clean about it. Still, it can be inferred indirectly by the rate at which previously uncounted votes in King County broke in Gregoire’s favor during the recounts. If the illegal vote total equals the number of recount-added votes, then Rossi’s first count victory should be restored, even under the divide-up-the-illegal-votes standard. This argument is bolstered by the fact that the divide-up-the-votes-standard does not ask for an exact accounting but asks what the breakdown of illegal votes “appears” to be and what votes “may” be attributable to what candidate.
For easy reference:
RCW 29A.68.090
When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that illegal votes were cast, that, if given to the person whose election is contested in the specified precinct or precincts, will, if taken from that person, reduce the number of the person’s legal votes below the number of legal votes given to some other person for the same office.
RCW 29A.68.110
No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
January 13th, 2005 at 6:14 am
You say dead voters don’t matter because there aren’t enough of them. But surely the number of felons, dead voters and double voters (whom you don’t mention) all add together to make up the 129 votes needed. So if Rossi can come up with 99 felons, 10 corpses, 10 doppelgangers, and 10 aliens, he’s met his burden.
Speaking of aliens, if I were representing Rossi, I’d ask the court to order the state to ask the Dept of Homeland Security to run the list of people who voted through their database and produce the names of the aliens. DHS won’t (and shouldn’t) do this for the Rossi campaign, but it should do it if it’s an official request by the State of Washington, and the court can order the State to make that request. In principle this is no different than a plaintiff in a car crash case being required to authorise the hospital to release his medical records, which happens every day.
As for the burden being 129 votes, rather than some higher number, as far as I know that is the standard everywhere else in the civilised world. You can never prove how those votes went, and it’s certainly not reasonable to assume they broke between the two parties in the same proportions as the rest of the vote. It’s enough to show that, if all those votes went to the winner, they would have swung the election; once that is shown, nobody can be confident of the result. And yes, that means that extremely close elections will always have to be redone, and that is indeed what happens everywhere, provided that you can actually produce enough illegal votes to have made the difference. For instance, when Bob Dornan was challenging his loss to Loretta Sanchez, he foud hundreds of illegal votes, but fell a few hundred votes short of the margin. If he’d found those few hundred more votes, he’s have met his burden and he’d have had a revote. He would not have also had to prove that all the illegal votes went to Sanchez; it would be enough for him to say that he was not confident that they hadn’t.
January 13th, 2005 at 7:33 am
Macajah– These RCW’s were written by the legislators. This is the manner they have proscribed that an election be contested. That’s perfectly constitutional. I’m sure the Democrats will argue it, though.
January 13th, 2005 at 7:35 am
1-13-05 7:28 BIG DADDYSAYS,ANYONE WHO THINKS THIS ELECTION IS LEGIT IS FULL OF IT.UNLIKE FLORIDA WE HAVE DOCUMENTED PROOF OF THE DEMO’S INCOMPETANCE.THEY CAN,T VOTE RIGHT OR COUNT THEM WHEN THEIR DONE VOTING. T.H. LV,WA.
January 13th, 2005 at 7:42 am
Bravo.
There is one important problem missing in your analysis.
I thought there were solid examples of people voting twice. These illegal votes should be brought into the spotlight.
January 13th, 2005 at 7:51 am
In regards to the thread about the election contest being only for county offices:
The structure of elections here in Washington State is this:
Each county completely runs each election, for ALL offices (State wide, County, City and other local offices/issues) with guidance from the Secretary of State. All the Secretary of State, in essences, does is monitor and guide the process.
All voter registration is conducted by each county (it is VERY easily possible to be registered to vote, in more then one county, here in Washington State right now). That is a currently HUGE loophole, because there is no uniform statewide checking of voter registrations here.
So when you look at the RCW for the state, keep that in mind. Each county is an island to itself, not really that connected to other counties and to the state government. So back to the reason for this comment:
RCW coded states:
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 of such precinct or precincts will change the result as to such office in the remaining vote of the county.
And in light of already defined laws elsewhere, this should be read as: That any election for an office (State, County,City and local) exercised in (an election was done in one of the 39 counties) and for a county (the county being instructed, by law to HOLD said election).. etc etc etc..
That is the intent and meaning behind the phrasing, in light of the structure and definition created in other parts of the RCW.
I hope this sheds light on what the law actually means, and how the courts will interpret them. Remember when you are reading all of the RCW, that it’s interdepent on other parts and definition already set out elsewhere in the Codes (RCW)..
January 13th, 2005 at 7:57 am
James– I’ll update the post with my thoughts on those. The trouble is, like dead voters, there just aren’t enough determined instances to throw the election one way or the other.
Paul–Good analysis, I think you’re spot on.
January 13th, 2005 at 8:02 am
If my Aunt had wheels she’d be a teacart.
It is funny to hear a Republican complain about voting irregularities. Where is the outrage over the obvious fraud in Ohio this past election? Where were you in 2000? Hell, where were you just two months ago when the Democrats were complaining wildly about voting problems here?
As long as your guy “won” you didn’t care. After all, it was just a bunch of whining liberals who should just shut up and accept it. Now the shoe is on the other foot and you are screaming bloody murder.
When Barbara Boxer stood up in the Senate last week, she was lambasted by the Right because she dared to speak out about the irregularities in voting everywhere, using Ohio as an example. She was accused of trying to reverse the outcome of the presidential election, when in reality she was trying to draw attention to a systemic problem in the way we vote everywhere.
It is good that finally Republicans recognize that there are some serious problems in our voting system. Now maybe we can actually get together and work towards fixing them now that we know these problems can effect BOTH parties.
I don’t like to see Christine Gregoire as the governor of this state any more than you do, but I would like to be able to accept the outcome of this and any other election if it was fair. Unfortunately, this cannot happen unless there are some serious reforms and standard practices in the way we conduct our elections.
It doesn’t matter who “won” this past election in this state because neither candidate could take office without his or her victory being tarnished. Perhaps the results of this election should be nullified, and another election held in the Fall AFTER reforms are in place. In the meantime, the Lt. Governor could be the acting Chief Executive.
January 13th, 2005 at 8:16 am
Alec Rawls, I read the two statutes you cited a bit differently. They don’t provide two standards, but deal with different stages of the litigation. The first, RCW 29A.68.090, deals with the sufficiency of allegations in the complaint. It basicly means that you don’t have to plead all the details when filing the lawsuit.
The second statute, RCW 29A.68.110, provides the standard applied by the court if the complaint passes muster under the first. The standard is not whether the illegal votes were cast for one party or another (an impossible thing to prove), but whether the sum total of illegal votes, if they all were cast for the winner would be sufficient to change the outcome if removed.
January 13th, 2005 at 8:28 am
Apportioning the illegal votes will certainly be entertaining. How do you think they’ll determine the voting patterns of the deceased? Is Madam Cleo still around?
January 13th, 2005 at 8:35 am
Good summary of the statutes. I’m not sure your analysis of what matters and what doesn’t is quite sound, but that’s what the courts are for. I’m a lawyer and one of the things I’ve found fascinating about this contest procedure is the operative language of the statute, “No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested…” The “appears that” language is a very imprecise standard. Most statutes are written in terms of some recognizable legal standard…willfulness, negligence, recklessness, reasonableness, etc. Lawyers and judges have a pretty clear idea of what those standards. People argue about what standards apply and at the margins whether a particular set of facts fit a particular standard, but there is general agreement as to what the standard is. I don’t believe I’ve ever seen the “appears that” standard before. From a legal viewpoint, it will be very interesting to see how the Supreme Court deals with this question. If they require evidence that illegal votes were actually cast for one candidate or the other, then Rossi’s challenge is dead. If they permit an assumption that the illegal votes were cast in proportion to the counted votes, then Rossi has a chance and the argument becomes over how many illegal votes there are.
In your analysis, don’t overlook the last section of the statute defining illegal votes:
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.
That section is a serious problem for Rossi with respect to the provisional ballots. I’m sure his lawyers have a response, but it is definitely a problem for them.
One further note about the North Carolina case. The statutory scheme in North Carolina is very different than Washington. In North Carolina, you only need to show that the number of “irregular” ballots (or the discarded ballots) exceeds the margin of victory in order to get a new election. Washington has a higher standard in that you need to show that it appears that the net illegal ballots actually attibuted to the winner exceeded the margin of victory. Much tougher standard.
January 13th, 2005 at 8:50 am
Steve: Thanks for a lawyer’s thoughts.
I don’t think the section on illegal voters you cite will have any bearing on the provisional ballots, though. Like I noted, that’s a question of misconduct, not of illegal votes, and thus that statute is moot.
The question of what “appears that” means would probably be answered by looking at the contested election in Adams County that had a revote due to illegal votes. Unfortunately, I can’t find anything about it online. I can’t imagine, though, that you have to prove ballots were cast illegally one way or the other–that is, and always will be, impossible, meaning that elections can be stolen rather easily.
January 13th, 2005 at 8:56 am
Oh, and Political Pulpit: You can read my thoughts on Ohio vs. Washington here. The shoe is on the other foot, but the other foot is a thousand times smaller… er, or something.
Meanwhile, I specifically address your thought on reforms by pointing out that the systemic problems don’t matter. What matter are the unique incidents of misconduct, irregularities and fraud. The system needs work, sure, but that’s not what’s at issue here.
January 13th, 2005 at 8:59 am
Is there misconduct in the judge authorizing the election department to give out the names and addresses of the voters, to the Democrats, who registration signatures didn’t match their ballot? I thought I had previously read that went against the privacy act. Also what about Bush vs Gore? Or is that only applicable if it goes to Federal Supreme Court.
January 13th, 2005 at 9:09 am
It’s interesting that Democratic politicians consistently oppose requiring a photo ID at the polls–this would be the single best way to prevent fraud.
If you don’t believe me, google it yourself.
January 13th, 2005 at 9:27 am
The only concern I have isn’t a cut and dried legal argument, but rather a trend I’ve noticed over the course of this election. To date the State Supreme Court has appeared to accept uncritically anything that comes from the Secretary of State’s office, making him the de facto arbiter of what state election law says. I am a bit concerned that they may continue that trend durin gthe contest, although comments Justice Chambers made in his concurring opinion on the last election lawsuit give me hope that this will not be the case.
January 13th, 2005 at 9:59 am
Very interesting post. It focuses attention on the fact that this contest is going to be decided by statute, rather than on vague conceptions of how things “oughta be”.
Regarding the Adams county case, you can read about it here:
http://www.mrsc.org/mc/courts/supreme/085wn2d/085wn2d0629.htm
I don’t think this case helps Rossi much. In the Adams county case, the evidence showed a concerted effort to fraudulently change the election outcome. A number of ballots were altered while in the county’s custody between the original election count and a pending recount. The ballots were altered to favor the man who lost the original count and won the recount. Although the number of ballots that could conclusively be shown to be altered was only about 2/3 the margin of victory, the court ordered a new election because a coordinated effort to defraud had been shown and because it was shown that the county had improperly secured the ballots.
Rossi supporters might be heartened to note that a revote was ordered even though the number of fraudelent ballots did not even reach the margin of victory. However, in this case, coordinated fraud with the intent of benefiting the challenged person was shown. I don’t think Rossi has any evidence of that in this election.
January 13th, 2005 at 10:03 am
In a revote would it only be between Reps and Dems? Which way do people think the 2% Libertarian vote would go? They’re 63,000 votes would basically decide this election.
January 13th, 2005 at 10:26 am
ScottD–your post came in while I was typing mine. It looks like you have the same reading of the Adams case as I do–they established fraud based on a discrete number of altered ballots, and while the discrete number wasn’t itself enough to annul the election, the combination of the neglect and the established presence of fraud as a result, did the trick. They didn’t have to prove that a named person committed the fraud, only that it obviously occurred, it was done in a pattern to elevate one candidate over another, and that it occurred substantially on the basis of neglectful security on the ballots.
I agree that it ends up being more of a hindrance to Rossi than anything, because of the establishment of known ballots cast for the “winner” that were bogus. I think it addresses more the standard for setting aside based on misconduct, rather than the standard for determining illegal votes in .110 (since they were ruled not illegal in the 1975 case), but it could affect both arguments, since specific ballots were used as evidence. This contradicts the assertions/hopes of several people at SoundPolitics, who claim that ballot secrecy prevents any such presentation.
January 13th, 2005 at 10:27 am
Hmmm…looks like my original post did not go through–the 2nd one went through immediately. Here it is again, written before the above post from me. ..
How very interesting. I’ve spent the last week at SoundPolitics saying EXACTLY the same thing as Steve–a lawyer–to great derision. I have not addressed the “appears” wording, although it has caught my eye. Steve, how do you think the use of that word in the first clause, is amplified by the last clause…”after deducting therefrom the illegal votes that may be shown to have been given to the other person.”–particularly the use of the phrase “may be shown?” I fully agree that it sets a standard that votes must be attributed to a candidate in some way; you’re right that one way would be to proportionally allocate them. But would any court try this? Do you know of situations (particularly in Washington) where absent data on the subset of votes being considered, a court would make assumptions about how people voted? A key point surrounding the provisionals is that there’s as much chance they were the result of fraud for ROSSI as opposed to Gregoire, and although both are less than the prospect of simple incompetence, they are rationally plausible possibilities. I have a hard time imagining how a court could reach a robust conclusion about the voting patterns of the questioned ballots.
Regarding the 5(b) section of .20, that discussion was raised at SoundPolitics as well. When I brought it up, it was said that the provisionals could not be considered illegal based on improper registration, since their registration status is unknown–and thus 5(b) wouldn’t apply. That’s a reasonable way to read it, I think, but the flipside is that the dead votes and felon votes probably DO apply, since dead people and felons would be improperly registered, and were not challenged at the time.
The Adams County case from 1975 is available online via Lexis. I can drag up the cite if desired. What’s interesting about that one is that votes WERE allocated to a particular candidate, because they had been fraudulently altered in order to change who was being voted for. These votes were specifically ruled NOT illegal, because they had been validly cast and then subsequently changed while in the hands of election officials. It was ruled that there was neglect in security of the ballots, since the keys to the ballot bags were attached to the bags themselves. But that would not have been enough, from my reading. What turned the case is that, pursuant to .110, “a number of votes” had been found to have been intentionally altered. Curiously, the total number presented did not appear to change the result, but because (to my reading) the neglect fostered an INTENTIONAL attempt to procure votes for a particular candidate who didn’t deserve it, that met the standard in .070. Steve, what’s your thought on the word “procure?” Since it suggests an active attempt (to bring about, cause to happen by special effort), the use of the word indicates to me that misconduct must be shown to have been done in order to elevate one candidate over another. Misconduct that passively changes the result, would not qualify.
But you’ve identified exactly the two standards in exactly the two sections of the RCW that I have, as serious problems for Rossi’s hopes to have the election annuled. That’s gratifying. Thank you.
January 13th, 2005 at 10:52 am
My bet is that Rossi’s best chance for success are the enhanced ballots. The argument would go that this is misconduct by the election board that could have changed the result. Even there, the statutory language seems to set a high standard:
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 to procure the person whose right to the office may be contested, to be declared 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 of such precinct or precincts will change the result as to such office in the remaining vote of the county.
The statute seems to require (or at least can be read to require) that, in cases of board misconduct, the votes from all the affected precincts be thrown out and that in the absence of those votes, there is a change in the result, then the election can be set aside. I assumed that the enhanced ballots cover a fairly wide range of King County precincts, so if the court adopts that interpretation, it would be good news for Rossi. Once again, though, the statute also uses the term “procure’, which seems to indicate that there has to be some showing that the board misconduct specifically benefited one candidate at the expense of another.
If I were a betting man, I would bet that the Supreme Court is not going to overturn this election (at least on what we know of the facts today). In layman’s terms, the Washington statutory scheme for election contests is not “it might of changed the result.” The standard is much closer to “it really did change the result.” Supreme Court justices don’t just interpret the law, they think about the consequences of their decisions as well. Given the statutory scheme in this state, the Supremes are going to be extremely reluctant to overturn an election for governor without hard evidence that all the imperfections of this election changed the result. In the end they will say that the law requires a certain burden of proof on the challenger and under Washington law, Rossi hasn’t met that burden. They will acknowledge that our electoral system doesn’t work very well in close elections and tell the legislature that if they want new elections to be easier in close contests, they should change the law to a system more like North Carolina.
January 13th, 2005 at 10:55 am
I am shocked that the King County Elections Board admitted:
” * The remaining difference in the number of votes cast versus the number of registrations credited with voting in the 2004 General Election is approximately 1,800 - an accuracy rate of 99.8% based on close to 900,000 ballots cast.”
That in itself is enough to say that a 129 vote margin is a “tie” as CG first said about the election when she was losing.
I hope I would have understood CG would have had the right to a revote had she lost the manual recount by this close of a margin, even though she would have lost each time. Instead, I must admit, I think she would have had more pressure to concede.
I must disagree with the idea of proportionating invalid ballots. There can be no provision for that. Even statistical analysis has not only a margin of error, but a probability of being correct. While it is statistically “improbable”, it is not statistically “impossible” for all votes to have been for one candidate. While this likely would be part of the CG argument, it is immaterial.
January 13th, 2005 at 10:59 am
Steve–thanks for the reply (or further comment, if you weren’t replying to me). You’ve reached the same conclusions I have. I have to wonder about .080–does it seem like the court would reject one or more entire precincts, that including thousands of fully valid votes, in order to excise enhanced votes? Furthermore, can it even be alleged that the enhancements were done in such a way as to change the result? I’d think there’d be a protection argument made, based on the presence of “illegal” votes in other precints outside of King. People who cast valid votes in thrown out precincts could argue that their votes were given stricter treatment by association with bad ballots, that other voters were not subject to. I think that statute only works in a county-wide, rather than a state-wide, election. But I don’t think it’s clear, you’re right.
January 13th, 2005 at 11:02 am
Thanks for the link to the Adams case. I’ve looked over it a bit and hopefully will post something seperate about it tonight. Obviously it’s a different situation, but it may provide some clues to the court’s decision.
I think a distinction needs to be drawn between “improperly registered” people, who must be challenged ahead of time, and illegally registered felons, who constitutionally have no right to vote. It’s pretty clear to me that these are seperate issues–mainly because they are in seperate sections. Therefore the voting felons are still a very, very good argument.
As far as the word “procure,” that just means “get,” or “make to occur” or whatever. There’s no way that it has any bearing on intent.
Thanks to everyone for their comments, including (even especially) the Democrats.
January 13th, 2005 at 11:04 am
Ray~
I agree that it is unlikely that the Supreme Court will proportionally divide the “imperfect” ballots. That’s why I think Rossi’s chances of winning his illegal vote argument are slim. His best chance is King County’s screw up in not making copies of the ballots prior to enhancement. If there really are 30,000 and there isn’t a way to see the original marks, I can see the Supremes being disgusted enough to order a new election.
January 13th, 2005 at 11:09 am
Tim–
I’m not sure what distinction you’re making between “improper” and “illegal.” Either you are properly registered or you are not. For a cast vote to be illegal when casted, the person casting it has to be improperly registered. Dead people are improperly registered because you must be alive. Felons are improperly registered because they have committed a crime. They have no right to vote, so if they are in fact registered, they have been registered improperly.
And my friend, you are whistling past the graveyard on “procurement.” Your own phrase “make to occur” is precisely a statement of intent, distinguishable from “allow to occur.” To procure something is to intend to acquire it, by definition. You can’t accidentally procure something; that’s simple acquisition.
I appreciate your opening of the forum for civil discussion, Tim. Thanks!
January 13th, 2005 at 11:28 am
Steve ~
Thanks for the response. I do agree that I believe the WaSC will rule against Rossi, by ignoring the statutes. Plus, I think they will have said they have already ruled on the changed ballots being OK.
However, part of the Bush v. Gore USSC decision was that the FSC ignored Florida statutes. Using this, if this does go to the USSC, I would include the previous wrong decisions of the WaSC that allowed King County to add ballots during the recount and to add ballots verified by the KC Democratic Party.
January 13th, 2005 at 11:33 am
I doubt the U.S. Supreme Court will be willing to get involved. A similar problem occurred in 2002 when the New Jersey court rewrote New Jersey’s election laws so the Democrats could swap candidates - and the Court wouldn’t take the appeal.
January 13th, 2005 at 11:34 am
Ray: It’s a misconception that courts require higher standards of proof than “statistically improbable” (vs. impossible). Most cases are decided on a preponderance of evidence. That means the court weighs the likelihood of arguments from one side against the likelihood of the other’s case.
If Rossi’s side argues that 129 random felons ALL voted for Gregoire, Gregoire’s side will argue that it’s likely that at least one of them voted for Rossi. Which of these two arguments do you think is more likely?
January 13th, 2005 at 11:43 am
scottd–what evidence would contribute to a preponderance in your case? In other words, on what basis can you declare one or the other scenarios “more likely?” Are you implying that felons are more likely to have voted for Gregoire? I’d be curious to see a legal argument for that.
Ray–what’s your reasoning for calling the previous WASC decision on the 723 King ballots “wrong?” It was based on Doyle, which appeared to set a strong precedent for recognizing ballots prior to certification, that were misallocated based on administrative error.
January 13th, 2005 at 11:47 am
Does anyone know where I can find the actual law that either permits or forbids the “enhancement” of ballots?
January 13th, 2005 at 11:51 am
I would expect the WaSC to rule against Rossi. Plus, I expect the USSC to deny to be involved, primarily as it is a state, not national election.
However, the arguments must be ready. We can only hope for the best.
January 13th, 2005 at 12:34 pm
The issue of whether the rules apply only to counties or not may have been further muddled by well meaning Republican senators, who submitted the following bill yesterday. In it the language seems to support the notion that resolving this issue lies with the legislature. They are calling for a new election, but could it turn out that by confiming their power to decide, they will in effect defeat their own purposes? In other words, the democrats could resolve to confirm their power to decide the outcome of the contest, agree to contest the election, then put Gregoire in power. I admire Senator Roach’s intent (I am in her district) but will this backfire?
SENATE BILL 5079
_____________________________________________
State of Washington 59th Legislature 2005 Regular Session
By Senators Roach, Oke, Honeyford, Mulliken, Hewitt, Swecker, McCaslin and Benton
Read first time 01/12/2005. Referred to Committee on Government Operations & Elections.
AN ACT Relating to a special runoff election for governor; creating new sections; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that:
(1) The November 2, 2004, gubernatorial general election between Dino Rossi and Christine Gregoire was the closest political race in the history of Washington state;
(2) The election results between the two candidates, which differed by less than one-hundredth of one percent, were certified on three separate occasions, after an original tally of votes, a mandatory machine recount, and a manual recount;
(3) Dino Rossi was twice certified as the governor-elect of Washington, only to be defeated by Christine Gregoire in the manual recount, an unprecedented event in the history of Washington;
(4) The election was marred by voting and counting problems that were irreconcilable by both the counties and the secretary of state;
(5) As a result of those problems, the majority of the citizens of Washington have lost confidence in the election process;
(6) As the elected representatives of the citizens of Washington, it is important that the legislature take action pursuant to the demands of the populous;
(7) The legislature must act to restore voter confidence in the election system, resolve doubt in the eyes of the electorate, and solidify the legitimacy of the next governor of Washington.
NEW SECTION. Sec. 2 Under Article III, section 4 of the Constitution of the state of Washington, the legislature is vested with the power to contest an election and it has the power to decide a contested election. As such, for the reasons set forth in section 1 of this act, the legislature hereby contests the November 2, 2004, gubernatorial general election. By the power vested in the legislature by the Constitution of the state of Washington, the legislature declares the results of the gubernatorial election of November 2, 2004, to be null and void. It directs that an entirely new, special runoff election be conducted to decide the next governor of Washington. This gubernatorial runoff election shall be held on the date of George Washington’s birthday, Tuesday, February 22, 2005.
NEW SECTION. Sec. 3 This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.
January 13th, 2005 at 12:43 pm
Does the legislature really have the power to decide contested elections? That seems like a stretch. Once an election is vacated, the legislature may have the power to set a re-vote procedure (although I’m not sure that’s 100% true either)–but contesting is entirely a judicial procedure, no? How could they contest (presumably as an appellant), AND be the decider of the case at the same time?
January 13th, 2005 at 12:43 pm
If Pam Roach is behind it, there are two things you can count on: it’s not well thought out and it’s politically motivated. The part about having the election on Washington’s birthday is a nice touch, don’t you think? I’m surprised she didn’t suggest Ash Wednesday.
January 13th, 2005 at 12:55 pm
It is stated in the Article III section 4 of the state constitution that:
SECTION 4 RETURNS OF ELECTIONS, CANVASS, ETC. The returns of every election for the officers named in the first section of this article shall be sealed up and transmitted to the seat of government by the returning officers, directed to the secretary of state, who shall deliver the same to the speaker of the house of representatives at the first meeting of the house thereafter, who shall open, publish and declare the result thereof in the presence of a majority of the members of both houses. The person having the highest number of votes shall be declared duly elected, and a certificate thereof shall be given to such person, signed by the presiding officers of both houses; but if any two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses. Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law. 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 question is whether the RCW’s apply to a contested Gubernatorial elction — if that is how the legislature “decides” or if they do it internally. I am no lawyer, but the law seems a little unclear whether contested elections of officers is handled the same as other elected officials. Later in the constitution there are specific references to how judges are handled, but no specifics on the executive branch.
January 13th, 2005 at 1:18 pm
thanks, Terry. Geez—that is ENTIRELY ambiguous.
January 13th, 2005 at 1:39 pm
By the way, I don’t see where Pam Roach and the other Senators read, “the legislature is vested with the power to contest an election ” in that section of the constitution. I think they got that part wrong. Who can contest is spelled out in the RCW’s, but again the constitution doesn’t say.
January 13th, 2005 at 1:47 pm
well, clearly they can’t be both Petitioner and arbiter!
January 13th, 2005 at 2:09 pm
Does anyone have any thoughts on how the 91 affidavits submitted to Logan prior to the certification of the manual recount will be handled. Republicans had delivered the affidavits by hand stating that the voters ballots had been rejected in error. Logan accepted the affidavits the came back minutes later and stated that “those” affidavits would not be accepted because the ballots had already been canvassed and rejected. Couldn’t this pose a problem for King County violating their duty to correct any errors that they were notified of?
January 13th, 2005 at 2:27 pm
Cindy–Logan’s statement would indicate that they were not rejected in error. If there was no error found, obviously there’s nothing to correct. It would be helpful to know on what basis they were rejected, of course.
January 13th, 2005 at 2:36 pm
We can only hope that justice will prevail and there will be a new election.
January 13th, 2005 at 2:47 pm
I can’t agree, Terry. Setting aside the election would be a grave injustice, since there is no legal standing for it to occur in my judgement. A new election doesn’t help a thing.
January 13th, 2005 at 2:48 pm
torridjoe:
The affidavits that were delivered to King County were from voters who had had their ballots rejected due to signature problems. Logan said that the ballots had already been reviewed and rejected [for having signatures determined to be invalid]. So I guess my question is does this refusal action violate equal protection? The Supreme Court had essentially held that a canvassing board had a duty to correct errors that the had knowledge of prior to the certification of their results. The canvassing board was being advised [in the form of affidavits] that voters felt their ballots were wrongly rejected. King County had previously allowed affidavits to be submitted to correct “errors” made in signature verification, this was not really any different. Could this be considered “misconduct” on the part of King County because they knew who the ballots were cast for and arguably refused them because they were not for Gregoire? I am
January 13th, 2005 at 2:56 pm
Cindy, the answer would lie in whether the affadavits make the votes de facto valid. Simply saying “that’s my signature” doesn’t mean they necessarily match.
I hope to God they made sure they checked the military signatures against both the computer record, and the paper records they used to validate the 723, of course. Otherwise they’ve got a big problem.
January 13th, 2005 at 6:11 pm
Well, the latest is that with Pierce, Snohomish and King counties count we are now looking at approx 142 felon votes found!!! Were not done looking yet. It’s clear to me that legally speaking this is an open and shut case however I get so worried because of the liberal lefties that preside in our courts. Dont lose steam everybody!!!
January 13th, 2005 at 6:26 pm
“WarmedOverJava” [AKA Torridjoe]:
In case you check back to this thread, try reading Article III, section 4 of the WA Constitution with a view toward the context in which the words are used.
It describes 3 situations.
First, the election returns show that one candidate won. In that case, the certificate of election would be issued — unless the election is contested.
Second, the election returns show that two (or more) candidates tied for the highest number of votes. In that case, the legislature would decide the outcome by choosing the next governor as a purely political question. They would make that choice through a vote of both houses in joint session, and the candidate receiving the majority of votes in that joint session would be elected as the next governor.
Third, the electin returns show a winner, but the election is contested. The “contested election shall be decided by the legislature.” That is plain, unambiguous English, and it identifies which branch of government must (”shall”) decide the contested election. Then the sentence goes on to say that the legislature shall decide the contested election “in such manner as shall be determined by law” — which means that they aren’t supposed to decide it as a purely political question, the way they would decide a tie.
The legislature is the branch of government which is vested with the authority and responsibility under our constitution to decide a contested gubernatorial election. The legislature can enact laws describing the “manner” in which they will decide such a contested election, but it cannot torture the plain meaning of that sentence and pass the authority and responsibility to the judiciary.
If the legislature concludes that a more efficient trial of the facts can be done in court, then it could enact laws which place the contest in court for the presentation of evidence and development of a record — which could then be passed back to the legislature for the legislature to use in deciding the contested election. If the legislature found it necessary to supplement that record with some hearings of its own, then of course it could.
The bottom line is that “shall” means “must.” It isn’t within the legislature’s discretion to pass the authority and responsibility for deciding a contested gubernatorial election to the judicial branch (or to the Secretary of State or anyone else in the executive branch).
For a more detailed discussion of this issue, I invite you to read my blog:
http://crokersack.blogspot.com/2005/01/can-wa-courts-decide-contested.html
January 13th, 2005 at 9:58 pm
[…] s
Thanks to the helpful interaction of a couple Democrats in the comments to this post, I think I have a good idea of what the Democratic arguments may be against the Ross […]
January 14th, 2005 at 1:45 am
“Oh Well” one might say 20,10,4 years ago. Not anymore…The Dan Rathers have not made acurate news available to us and that especially goes for the Seattle Post Intelligencer.”FACT”is whats selling these days and let me tell you,the people have choices now to get it.Don’t it always sting when you get caught with the math not adding up.Math is a barometer for everyone,a known calculation…and political or press rhetoric has always disputed this no matter what those numbers may be. Well…NO MORE !!!!!!!! Christine, none of this adds up in your favor,and we will prove it with the Numbers!!! Facts!!!! Evidence!!! Your kind is going obselete,I suggest you quit trying to bull#### us dumbass red state constituants because we never ever did buy it 20,10 or 4 years ago!!!!
January 14th, 2005 at 8:44 am
On the issue of mail to military personel. Unless Congress changed the law, free mail only goes from APO/FPO addresses to the states. I was last deployed in the fall of 2002 and at that time, my wife needed to put postage on all letters to me while I got to write “Free” in lieu of postage.
Here’s a reference: http://www.oconus.com/Main/oArticle.asp?50
Note that mail must have a “complete APO or FPO return address” in order to qualify for free postage. Washington State does not qualify for an APO or FPO address, unless they are no longer part of the continental United States.
January 14th, 2005 at 9:05 am
I’m fairly certain that ballots are a special case, as they should be.
January 14th, 2005 at 3:26 pm
in response to Micajah, In response to your argument that it should be the legislature who decides this, perhaps you would be right if this election were contested for misconduct. However if we end up contesting on the basis of illegal votes which I think we will end up doing, Then you either subtract the votes from the total or you try to persuade a judge to issue a new election. What you have mentioned clearly states thst it only applies to misconduct.
January 14th, 2005 at 5:13 pm
“Deannamac”:
There is nothing that I know of in the law or in what I said which would support making the distinction you have stated, i.e., a distinction between “misconduct” and “illegal votes” — one sending it to the courts and the other to the legislature.
Read the explanation I’ve posted in my blog.
Oh, and ask yourself why the Democrats have — according to The Seattle Times — asked the court in Chelan County to determine whether the contested election ought to be decided by the legislature. I predicted that they would wait until Gregoire the Pretender took the oath of office to raise that issue — and it appears that they raised it on the afternoon of inauguration day.
January 16th, 2005 at 11:45 am
Thanks for the valuable info. Wouldn’t (5b) of the above code preclude the use of the 348 provisional ballots incorrectly fed into the counting machines as grounds for disallowing the election? If ballots were counted before they could be challenged, while incorrect procedurally, I believe they stand as legal votes under (5b) of the above code. If my reading of the code is correct, this would allow the counting ,” by accident”, of as many unsubstantiated provisional ballots as you could chuck into the machine, as long as it was done before the votes were challenged. This would be a loophole the size of Delaware. (Small state, big loophole). Not a major concern when the election process is above reproach, but issues raised by this election, particularly in King County, suggest repairs are in order.
January 16th, 2005 at 4:19 pm
KL duPre’,
The 348 provisional ballots which King County says were put into the polling place counting machines rather than into sealed envelopes cannot fit under that “5b” subsection. (They were supposed to be verified later, much the same way an absentee ballot in an envelope is verified before the envelope is opened and the votes on it are counted.)
Note that basing an election contest on “illegal votes” under that statute also requires the petitioner to name the people who cast the allegedly illegal votes — which is, of course, totally impossible when even the county election officials have no idea who they were. (The legislature that enacted those laws, and the legislatures that left them in place over the past years apparently didn’t want anyone to mount an effective challenge based on illegal votes.) Neither the “illegal votes” part of that statute nor its 5b exception to the definition of “illegal votes” can be applied to those 348 improperly cast ballots.
The 5b subsection is merely saying that improperly registered voters must be challenged at the polls — that you cannot later go back over the voter registration list looking for people you might have challenged on election day if you had taken the time then.
People who cast provisional ballots didn’t need to be challenged at the polls, since there was absolutely nothing (other than whatever they orally stated) to indicate that they were even registered voters.
If you think there ought to be some requirement in the system to “challenge” them in some way, then consider the fact that the polling place workers said, in effect, “sorry sir/madam, but you cannot cast a regular ballot, because your name isn’t on the list of registered voters in this precinct book here on the table in front of me.” That isn’t technically a “challenge,” since a “challenge” is only made when a person whose name is in the book is challenged by the precinct officer because of some information that indicates the voter’s name shouldn’t be in the book.
Those provisional ballots which were improperly put into the counting machines may not be “illegal votes” under that statute, but they are votes that shouldn’t have been counted. They were counted because of the improper conduct of the precinct election officials who didn’t do their job. They were supposed to ensure that those ballots didn’t get mixed in with the regularly voted ballots, because they all look alike — and therefore cannot be separated later, once someone realizes what happened. Such improper votes fall under a different statute, apparently — one that deals with any “irregularity or improper conduct” by election officers which causes a person to appear to be the winner even though that person isn’t the legitimate winner.
Why do the ballots all look alike? Because King County defied its own citizens’ task force, which recommended that they print the provisional ballots on paper that is a different color or in some way distinguishable from regular ballots. Had they followed that recommendation, any provisional ballot that found its way into the pile of regular ballots — rather than being sealed in an envelope with the voter’s signature on the outside of the envelope — could be easily removed from the pile later and rejected as an invalid ballot.
Why did King County defy that recommendation? I cannot think of an answer that casts them in a good light. I don’t believe there is one.
They knew this situation jeopardized the integrity of the election more than a year before the election, and they didn’t do anything to avoid what they now claim was unavoidable human error.
Ballot box stuffing was never so easy back when people cared about the possibility that their own vote would be nullified by ballot box stuffing.
As for your example of putting as many ballots as possible in before being stopped — supposedly only the precinct polling place workers are authorized to hand a ballot to a voter, so it ought to be hard to get more than one.
But, then, Dean Logan publicly stated that the 1800+ “voterless ballots” may have been handed to voters at the polling places without first requiring them to sign the polling book. That would mean that people could easily vote more than once — something that the election officials and workers are responsible for preventing, rather than making it easy.
The more I examine the procedures they followed and the rules in effect, the less regard I have for the people we put in charge of enacting election laws, issuing regulations to implement the law, issuing instructions to local polling place workers, and carrying out the job of actually issuing, receiving, and counting the ballots and votes.
January 17th, 2005 at 9:44 am
Here’s the Washington Administrative Code (”WAC”) section that demonstrates that the people who received those provisional ballots and improperly put them into the counting machine in King County were not subject to challenge at the polling place.
Only people who have their names on the precinct book get challenged. Others get a provisional ballot.
Since they weren’t subject to challenge, the ballots they improperly put in those counting machines couldn’t possibly fit in “5b”.
WAC 434-253-040 Verification of voter’s name. All voters must provide their names to the precinct election officers so that verification can be made that the voter’s name appears on the precinct list of registered voters. Upon verifying that the voter’s name is on the precinct list any precinct election officer may challenge that voter’s right to vote, as provided by law. If no challenge is made, the voter shall be issued a ballot and the sequence number of the ballot issued recorded next to the voter’s name.
[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as § 434-253-040, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, § 434-53-040, filed 6/2/92, effective 7/3/92.]