As best as I can tell, there are two main arguments being offered in favor of changing the ballot deadline from the current postmarked by election day to the more restrictive received by election day: 1) candidates and voters deserve to know who won on election night; and 2) it is the only way to avoid fiascos like the drawn out 2004 gubernatorial count.

But the flaw in these arguments is that they both represent a solution in search of a problem, and a solution that regardless, just wouldn’t work.

The gist of both arguments is that ballot counting is too slow, and that the only way to speed this is up is to require that all ballots be received by election day.  That way, theoretically, we could report somewhat complete unofficial results on election night, just like we used to do when voting was primarily conducted at the polls. But a quick glance at ballot statistics in both Washington and Oregon reveals just how faulty that logic is.

The following table shows the cumulative ballot receipt numbers for King County in the days just preceding and following the 2009 general election. The third column represents these ballots as a percentage of the total number cast, based on a projected turnout of 55%. The fourth column represents the cumulative number of ballots counted and reported as of the end of that day.

As can be seen, 452,522 ballots were received by election day, roughly 76% of the total number cast. Yet only 254,261 were counted by the end of the day… barely more than the total number of ballots in hand the Friday prior to the election.

The bulk of the remainder of the ballots cast arrived the next day, with 572,611 in hand at KCE, or over 96% of the total number cast. Yet only 308,650 of these were counted by the end of Wednesday.

There are several obvious lessons to learn from the data. The first is that KCE can’t keep pace with the ballots it is already receiving, thus any delay in reporting returns is due not to a lack of ballots, but rather a lack of capacity to process them. This is true in Oregon as well, which typically reports only 50% of total votes by the first ballot drop election night, not much better than King County, and generally somewhat worse than Washington state as a whole.

That said, even the 43% of total votes reported by KCE on election night was a large enough sample to accurately project the winner in all but a handful of the hundreds of contests countywide. Candidates and voters do know the winners on election night, at least in the vast majority of races.

Of course, as the 2004 gubernatorial contest reminds us, there are those exceptionally close races where the counting and recounting can drag on for weeks, but these are fleetingly rare, and regardless, would not be impacted at all by moving the ballot deadline. This November, over 96.4% of ballots were received by Wednesday, and 98.1% by Friday. Even if we were willing and able to dedicate the resources necessary to count the ballots as they come in, it would only accelerate initial reports by a day, maybe two at most.

The fact is, it typically only takes a day or two to send mail within the county, thus the bulk of late postmarked ballots will inevitably arrive within a day or two following the election, as the table above definitively shows. Most of the remainder of ballots that trickle in over the next week or two are those coming from voters overseas and/or in the uniformed services, and I’m guessing there is little or no political support for making it even harder for overseas military personnel to vote.

That’s why, even in states with more restrictive ballot deadlines, exceptions are usually made for overseas voters. For example, Pennsylvania, which requires elective absentee ballots be received by the Friday before the election, allows overseas civilian and military ballots to arrive as late as ten days after. And that’s a pretty typical deadline nationwide.

Yes, it would be nice to get near complete results on election night the way most other states do, and they way we used to get here in Washington state before mail-in ballots started to dominate our voting, but this is the nature of mail-in elections. It takes time and resources to sort, process and verify signatures just in preparation for counting, and so we’ll never approach the sort of election night returns the likes of Reed, Gov. Gregoire and the Seattle Times editorial board apparently want. They sure don’t do it Oregon, even with their received by deadline.

Personally, I’d rather we get the count right, than fast. And I’m not sure I’m willing spend the extra money necessary to do both, let alone disenfranchise tens of thousands of late voters in the process.

I’ve already spent some time joyfully fisking the Seattle Times’ “absurd” proposal to change the deadline on mail-in ballots from the current postmarked on election day, to the more restrictive received by election day, so there’s no need to do a line-by-line takedown of Joel Connelly’s own contribution to this peculiar genre of conventional wisdom, except to correct one very glaring misstatement of fact:

Every other state mandates that ballots be in the hands of election officials when polls close on election night.

Ten seconds of googling shows that this simply is not true. State imposed deadlines for receiving mail-in ballots are all over the place, ranging from Pennsylvania’s restrictive requirement that absentee ballots be received by 5PM the Friday before the election, to the more permissive postmarked on election day rules in Alaska, District of Columbia, Maryland, Washington and West Virginia. Yes, Oregon is the only other state with all mail-in voting, and it requires ballots be received by election day… but that’s not much of a statistical sample, now is it?

That factual error aside, Joel’s main argument for moving the ballot deadline is a large, stinky red herring, for the only thing sillier than his fantasy of Washington playing the decisive electoral role in a tight, 2012 contest between Barack Obama and Mitt Romney (if it’s that close in WA, the electoral college outcome would be a foregone conclusion long before election day), is his suggestion that our ballot deadline could conceivably contribute to a constitutional crisis.

The main problem with both Joel’s and the Times’ musings (apart from the fact that their proposal would inevitably, you know, disenfranchise tens of thousands of voters statewide), is that they insist on conflating King County Elections’ slow ballot counting performance with the mail-in ballot deadline, when in fact the two currently have very little to do with each other. As I reported on election night, KCE had about 350,000 ballots on hand as of 5PM the Friday before the election. Yet they only managed to count about 250,000 ballots as of election night, and didn’t finally get through that original 350K batch until Thursday afternoon.

So perhaps, the 485,000 ballots counted before KCE shut down for the weekend included all those received by election day. Perhaps. And this morning, nearly a week after the close of our virtual polls, KCE is only just now getting around to counting the ballots that have arrived since.

All else being equal, KCE would not be much further along in the counting process had the deadline for receiving ballots been election day. And with the vast majority of ballots arriving by the Friday following the election (it only takes a day or two to send mail within the county) moving the deadline could only speed up results by a few days, even with a dramatically expedited counting process.

As for the excruciatingly close contest that Joel imagines, it’s the provisional ballots, missing and mismatched signatures, counts, recounts and various canvassing board and court challenges that drags out the process for weeks. Had the ballot deadline been moved prior to the 2004 gubernatorial election, it would have ultimately done little if anything to expedite the certification process.

Mail-in ballots currently must be received by the certification date — 15 days after a primary or special election, 21 days after a general — but in practice, only a handful of out-of-state and overseas ballots, mostly from overseas military personnel, trickle in during the final weeks of the canvass. I suppose an argument could be made for moving up the ballot deadline to say, the Monday following the election (as in West Virginia), but that would not officially certify results any quicker.

Resources permitting, we could count the bulk of the ballots a couple days sooner, but the thousands of provisional and signature-challenged ballots set aside for special handling will take just as long to process, with or without the added burden of handling a trickle of late mail-ins. And anything along the lines of what Joel fears — a presidential race in hand-recount territory — simply cannot be avoided or expedited; in the end, there’s only one canvassing board, and it can only consider one disputed ballot at a time.

So Joel’s proposed “fix” would do nothing to ward off the paranoid fantasy he imagines.

It would, however, make it more difficult to vote, while dramatically truncating election campaigns well in advance of election day. And that makes for a proposal I simply cannot support.

Let’s start with the most taxing of all: Your Their Oklahoma City Sonics stunk out the joint against Orlando last night, losing 103-76 in a game that wasn’t that close. Rashard Lewis, one of the two Sonics stars dumped in the offseason by new Oklahoma owner Clay Bennett, had 19 by halftime. The Sonics are now 0-8, and, having lost the last five games last year, have now lost 13 straight over two seasons, a new club record.

Lee may well be right that the plot may be to make the Sonics so bad that nobody will care if they leave, but if so the ploy is backfiring: the Sonics are so bad one can’t help but watch, like a slowly unfolding car wreck or a grisly horror movie. They’re that bad.

The local papers are reporting this morning what HA readers already know: EHJR 4204 is now passing. The measure to allow school districts to pass levies with 50 percent, rather than 60 percent, of the vote, while dropping the requirement of a 40 percent voter turnout, has pulled ahead primarily on absentee ballots from King County, which has solidly supported the measure (unlike much of the state).

King County Council passed three new taxes yesterday: a one-tenth of a cent hike in the sales tax for a dedicated fund for substance abuse and mental health programs; 10 cents per $1,000 valuation in additional property tax to pay to repair substandard flood control levees; and 5.5 cents per $1,000 valuation to pay for new passenger ferry district.

Anti-war protests continued yesterday at the Port of Olympia, where protesters poured cement onto railroad tracks to try to keep trains from leaving the Port with military shipments. The brief, unbylined Seattle Times article on the topic is notable for relying solely on Olympia police as a source, without bothering to pick up the phone and call, you know, anyone from the Port or any protesters. Without any context at all (e.g., the protests that have been going on since last Friday down there), the article is a complete cipher. If you want context, try this much better piece from yesterday’s Olympian.

Nationally, after carefully taking a full working day to consider the seven hours of public testimony at last Friday’s FCC public hearing in Seattle, on Tuesday FCC Commissioner Kevin Martin issued details of his proposal to further deregulate broadcast station ownership, specifically lifting a ban on newspaper/TV cross-ownership in any one market. A tale of two headlines: New York Times: “Few Friends for Proposal on Media.” The always-friendly-to-DC-bureaucracy Washington Post: “FCC Chief Offers New Plan On Cross-Ownership.” Amazingly, neither article mentioned the overwhelming public opposition to Martin’s proposal, choosing largely to focus on the Tribune Co., Rupert Murdoch’s News Corp., and other large broadcasters that would be affected by the change. The Times’ “Few Friends” headlines refers to broadcasters who want still more lenient rules — not the public that thinks media has already consolidated quite enough, thank you. But then, it’s kind of hard to expect that public concerns would be acknowledged, let alone that we get (God forbid) balanced coverage on this issue, when both the Post and the Times have extensive newspaper and broadcast media properties themselves.

You know, there’s this other local blogger who’s name escapes me at the moment, who claims to be all over election reform and all that, and I’ve been waiting all day to see his analysis of the reform package proposed yesterday by Secretary of State Sam Reed (a Republican)… but so far, nada. Hmm. I guess for some people election reform isn’t really election reform unless it makes it harder to vote.

Reed’s proposal (PDF), on the other hand, is actually quite sensible, and includes two major provisions: moving the primary to August, and allowing for online voter registration via the SOS website.

Ask any county auditor in the state, and they’ll tell you that their number one reform priority is moving the primary… preferably to the spring, but they’ll take August if that’s what they can get. Reed’s proposal moves the primary from the 3rd Tuesday in September to the 3rd Tuesday in August, giving elections officials a much needed cushion before ballots go out for the general election. Reed’s proposal also makes a few other tweaks in this area, increasing the time for certifying a primary from 10 to 15 days, and requiring military and overseas ballots to be mailed out 30 days before the election (an impossible timeline under the current system.) Reed would also ease the legislative fundraising freeze to help accommodate the accelerated schedule.

Reed’s other major proposal would allow voters with a WA state driver’s license or state ID card to register to vote online; the SOS would obtain the voter’s signature from the Department of Licensing to pull into the voter rolls. This is an incredibly progressive, efficient, cost effective reform that would make WA only the second state to allow online voter registration. The only reason I can see why someone might argue against it would be if they don’t want to make it easier for citizens to register to vote. (Um… I expect there to be some passionate opposition.)

There are a bunch of other lower profile reforms in Reed’s proposal, mostly dealing with cleaning up the election statutes, and clarifying some of the rules regarding ballot measure petitions. One change that immediate stood out to me would make it “a gross misdemeanor to circulate a petition that appears to support a measure that differs from the actual measure attached to the petition.” Hmm. I wonder if that would apply to say, the time Eyman printed a petition for a property tax cut initiative with the headline “No New Income Tax!”…? Sure hope so.

While there are other reforms I would like to see, all in all, I can’t find anything in Reed’s proposal that I might object to. After the recent escalation of partisan tensions over the GOP’s voter challenge debacle, I was kind of dreading Reed’s proposal, but once again he has pleasantly surprised me. This appears to be a package of reasonable, modest reforms, and I hope beyond hope that it receives the kind of bipartisan support it deserves.

Carla over at Preemptive Karma has given our friend Stefan a sound spanking over his latest efforts to create a military ballot controversy where none exists. Last week, Stefan claimed he had documented proof that King County Elections sent out military ballots late. Carla responds:

No Stefan…you really don’t. I’ve been looking over your “documentation” at length. What you have is akin to a big roll of toilet paper.
…
I contacted both the Secretary of State’s office and King County Elections today to give them an opportunity to respond to your findings. My results were much different and infinitely more factual than yours, it appears.

Additionally and for future reference…just because someone doesn’t call you back to “dispute your findings” doesn’t make your findings correct. Brad Pitt has never contacted me to dispute my finding that he wants to put me up in a new home on the beach in Malibu. But I harbor no delusion that my “finding” is correct, either.

Yeah… ain’t that typically snarky rhetoric, huh? When Stefan writes that “King County did not dispute my findings,” what he really means is that they didn’t reply to his email. (Hmmm… come to think of it, Stefan never did respond to my post in which I repeatedly accused him of being an arrogant prick.)

Carla doesn’t bother to fisk Stefan’s spreadsheet, because quite frankly, it’s Stefan’s spreadsheet, so there’s no way of knowing whether the data is accurate once he’s finished futzing around with it. But while Stefan contorts the data in an effort to prove nefarious goings on in King County, he conveniently ignores documented evidence of problems with military ballots in five other counties… including Island County, which clearly failed to meet the federal deadline.

Why does Stefan focus solely on King County? Well apparently, he couldn’t give a rat’s ass about whether overseas military personnel really received their ballots on time (and they did,) or about whether the DOD or DOJ received any complaints from disenfranchised soldiers (they didn’t.) Clearly, Stefan’s main concern is discrediting King County Executive Ron Sims during the months leading up to the November election. I suppose that explains why 8 out of the last 10 posts to (u)SP are either direct attacks on Sims, or in some way disparage King County Elections.

It’s getting to the point where Stefan may want to report his web hosting fees as an in-kind donation to David Irons. That is, if he’s honest.

The Hunting of the Snark, Fit the Second

TJ over at Also Also piles on with his own recounting of Stefan’s documented history of poor predictions and shoddy, partisan analysis. As TJ points out, Stefan’s latest analysis isn’t any better:

I’m largely going to leave the military ballot thing to Preemptive Carla, because that’s been her gig from the start, and frankly it’s a pointless exercise of speculation on Stefan’s part that barely merits attention. I did review the materials to a certain extent, but it’s not currently fathomable why Stefan assumes that the only overseas ballots mailed out were in October and not before–since over 1,300 names appear to have been pulled from KC’s database by September 23. Carla gets the core issue correct: “It’s over Stefan. You lost. Deal with it.” That’s also the response he got from Nick Handy at the SoS, who didn’t seem to find a need to review Stefan’s materials, either.

TJ turns most of his attention towards Stefan’s latest round of attacks on Ron Sims, this time accusing the King County Executive of aiding and abetting his nephew in casting fraudulent votes. (Yes… that is what Stefan is implying.) Stefan doesn’t ask for comment… he doesn’t even wait until he has all the information he’s requested before publishing his “conclusions.” He just jumps right out there and slanders a public official and his relatives.

Hey… I’ve got an admission for you Stefan. I lived in New York City for almost four years, and during much of that time I continued to vote in Philadelphia. I had always intended to move back to Philly, but never did. Please… please investigate and see if you can get somebody to press criminal charges, because by your reckoning, I clearly voted illegally.

Our good friend Stefan over at (un)Sound Politics is obsessing on military ballots again. My daughter’s itching to head to the beach, so I don’t really have the time or inclination to closely examine his “proof” at the moment, but I thought I should take a few minutes to reiterate a few facts.

Overseas military voters received their ballots in time.
Whether ballots were mailed out on the 6th or the 8th or the 10th or whatever, there have been no widespread reports of overseas military personnel who did not receive their ballots from WA state in time to cast their votes. This fact is confirmed by none other than Stars and Stripes:

Joe Hitt, spokesman for Fort Lewis in Washington, said none of the Army Reserve units currently deployed overseas have reported problems over missing or damaged ballots.

“It just seems to be something that’s being blown up in the press,” he said. “We haven’t heard any complaints about ballots.”

Overseas military turnout exactly matched KC turnout
83 percent of overseas military personnel who requested mail-in ballots from King County had their ballots counted in the November, 2004 election. This turn-out rate exactly matches that for King County at large. It is hard to argue that military personnel were disenfranchised when they voted in the same numbers as the rest of the county.

Move the fucking primary!
It’s no secret that due to the unusual lateness of our September primary, all WA counties struggle to get overseas ballots out in time to meet the federal deadline. Indeed, the number one election reform requested by county auditors and Sec. of State Sam Reed was to move the primary to June, or at the very latest, mid-August. And yet, Republican obstructionists like state Sen. Pam Roach have once again blocked just such a move. If Stefan cares more about protecting the franchise of our overseas military personnel than about scoring cheap political points, he should focus his considerable efforts on persuading legislators of both parties to enact this very simple and sensible reform.

Of course, Stefan’s main concern is scoring cheap political points, and his recent posts only reaffirm what I said months ago… that for partisans like him, the whole legally futile election contest was always more about weakening Ron Sims than it ever was about getting Dino Rossi into office. And there’s no question that Sims has been weakened by the constant barrage of attacks. Too bad for Stefan and his GOP buddies that all they could come up with to challenge Sims was a boneheaded candidate like David Irons, so unlikable that even his own mother won’t vote for him.

The Independent Task Force on Elections that Ron Sims formed in the wake of the disputed 2004 election has released its recommendations. I haven’t seen a copy of the full report yet, but judging from the media reports (P-I, Times) it is hard to argue with most of the proposed reforms.

ELECTION RECOMMENDATIONS

• Hire and work with an independent, external “turnaround team” to resolve leadership, organizational culture, policy and operational problems that confront the King County elections office.
• A separately elected official with primary responsibility for elections will increase accountability to citizens, the task force believes.

IN KING COUNTY

• Institute vote-by-mail and regional voting centers in 2006; place two election observers at or adjacent to counting stations during recounts.

STATEWIDE

• Change the primary date to the first Tuesday of June.
• Automatically restore voting rights to former felons upon release from prison.
• Conduct only one manual recount when a recount is necessary.
• Require election officials to receive all ballots by 8 p.m. election night, except those of military and out-of-state voters.
• Limit the number of elections each year six to four.

Of course, the recommendation getting the biggest headline is that of hiring an outside team of management experts to quickly turnaround the elections division’s “seriously flawed organizational culture.” Sims released a statement in which he said he would “enthusiastically embrace” the “SWAT Team” proposal… which does not necessarily call for the firing of Dean Logan. According to task force chairwoman Cheryl Scott, Logan’s tenure is “between him and the county executive,” and Sims spokesman Sandeep Kaushik said there are no plans to force out Logan.

“It’s up to Dean,” Kaushik said. “He’s been in a tough spot. I think as long as he has the determination to carry on and right the ship, then we would like to help him in any way we can to do that.”

As many of you know, I have spent many pixels defending Logan and his department from what I believed to be unfair, dishonest and politically partisan attacks. I have talked to a number of county auditors (R and D) and other elections officials from across the state, and all expressed great respect and admiration for Logan. Not a single person who has worked with him questioned his honesty and integrity, and he was clearly hired for the job because nobody in the state had more expertise in elections procedures than him.

Whether Logan lacks the management skills to successfully run such a large and complex bureaucracy as KC Elections is another question, which if I were Sims, I would leave to the management experts on the SWAT Team to answer. One thing I do know is that Republican charges of a corrupt department that fraudulently stole the election from Dino Rossi, were proven entirely baseless in a court of law.

The task force was split on whether King County should elect an auditor like all of the other counties in the state… and so am I. Some members said an elected auditor would make the office more accountable to voters, while others pointed out that doing so does not guarantee electing a good manager. While such a move is certainly not an immediate solution, there are good arguments on both sides. Considering the highly charged partisan atmosphere surrounding elections at the moment, I would hope that the county waits a little while before addressing this issue.

As to the other recommendations, I could easily accept them all as a package.

Moving the primary to June (or at the very least, August) is a no-brainer that was the number one reform requested by every auditor in the state plus Sec. of State Sam Reed. Both parties deserve a slap on the nose for failing to include this in the election reform package that passed during the last session. If the R’s really care about assuring that overseas military ballots go out on time, they should stop their obstructionist tactics on this issue.

Automatically restoring the voting rights of felons upon release from prison is also a procedural no brainer. Unless somebody can prove that there is some societal gain from denying felons the franchise — and I would argue the opposite — there is absolutely no justification for adding this procedural layer of complexity to our system. In the end, the task force made a cost-benefit analysis; if there are any benefits from denying felons the right to vote, it certainly does not justify the costs.

Republicans claim that this is a Democrat plot to create more Democrat voters… to which I respond “bullshit” and “who cares?” There is absolutely no direct evidence that felons tend to vote Democrat, and that argument is particularly irrational in WA state where the vast majority of felons are white, working-class men… the core Republican demographic. But felon demographics is entirely besides the point; African Americans tend to overwhelmingly vote Democrat, and no Republican would seriously suggest denying them the franchise.

As to conducting a single, manual recount when a recount is necessary… well… I hadn’t thought about that before. Yeah… I suppose I could go for that. The manual recount turned out to be a model of bipartisan cooperation, and an extraordinarily open and transparent process. From a public trust perspective it would have eliminated the bullshit “two out of three” argument the Rossi folks used. My only concern is that manual recounts are burdensome and expensive, and this reform would result in a few more of them.

The one recommendation with which I’m least comfortable is making election night the deadline for receiving ballots. While I’m sure it would simplify the process, I’d have to have a better idea of how many ballots might be disqualified by such a move, before I could voice an opinion.

In the end, simplifying the process is the theme of most of the recommendations, not the least of which being the most significant one: moving to an all mail-in election by 2006. As I’ve previously written, I don’t like mail-in voting, but the die was cast when we liberalized it a few years back. Voters overwhelmingly avoid the polling place, and it simply doesn’t make sense to support two entirely different voting systems. Yes, King and other counties had problems with mail-in ballots, but by eliminating the much more complicated poll voting, it will permit the elections division to focus on fixing and perfecting their mail-in ballot operations. This is common sense.

In the last election, 70 percent of voters voted by mail… in some counties as high as 86 percent. The market has spoken, and critics of mail-in voting on both the right and the left need to accept the will of the people and work to make mail-in procedures as secure and reliable as possible. Critics, like our good friend Stefan, argue that moving to all-mail voting would only further undermine public trust and confidence… but that’s a load of crap. The best way to restore public trust in elections is to conduct them smoothly and accurately, and the easiest, quickest path towards that end is to eliminate unnecessary complexity from the process.

I personally will miss the polling place, and regret that we as a state ever strayed down the path towards all-mail elections. But here we are, and there’s no turning back, and I’m pragmatic enough to reluctantly accept it. To stick King County with a burdensome, expensive, untenable dual system, while the rest of the state goes all-mail, is to assure that KC elections will be the whipping boy in all future close elections. Perhaps that works politically for Republicans seeking a campaign issue to help them overcome their numerical disadvantage in King County, but it just isn’t good public policy.

So all in all, it looks like the task force has made some very practical recommendations. I’m sure there is more fodder for partisan sniping in the full report, but I’ll get to that when I see it.

As was previously noted, Saturday’s triumph of Steve Hammond over political momma’s boy Raymond Shaw Reagan Dunn was not only surprising, it was downright hilarious. Vying for the party’s nomination in the King County Council’s 9th District, Hammond eked out a narrow 25-vote victory out of the 444 ballots cast at the GOP’s county convention. The funny part is, that there were only 436 delegates seated. That’s right… there were more ballots cast than delegates who voted!

Let’s see now… 8 divided by 436… that’s a discrepancy rate of 1.83 percent. If the Republicans had staffed KC Elections, and had achieved the same startling accuracy rate, we would have seen a discrepancy of about 16,500 more ballots than voters. And on Saturday they only had to deal with 436 delegates (…or maybe it was 444) instead of the 900,000 KC voters who participated in the November election.

And the problems didn’t stop there. According to Republican Councilmember Pete von Reichbauer and others, the entire convention was chaotic.

Von Reichbauer wants the convention process reviewed, because the date conflicted with school graduations, delegates couldn’t vote by absentee ballot and soldiers fighting overseas couldn’t participate.

So the Republicans couldn’t reconcile the vote, and they disenfranchised military voters!

“It was an inconvenient process,” von Reichbauer said. But then, “inconveniencing” voters has been a mainstay of Republican voter suppression strategies for decades… so I’m sorry if I’m wary about Republican proposals for electoral reform.

So much for party unity
Before the May 18 caucuses and in the weeks that followed, both Hammond and Shaw Dunn indicated that they would abide by the convention’s outcome, and not run in the September primary if they didn’t win the GOP’s official nomination.

But after yesterday’s vote, Dunn said he would file anyway, although he didn’t know whether he would do so as a Republican.

“I can’t abandon this campaign because of 24 votes in June,” he said, referring to Hammond’s victory margin (and getting his math slightly wrong).

How convenient. But then, the GOP is not only the party of convenience, it is also the party of poor losers.

[NWPT48]I concluded my post-ruling analysis by demanding that Dino Rossi apologize for taking his meritless election contest to trial. But of course, I’m just a partisan blogger, so it’s nice to see a respected political commentator like The Seattle Weekly’s George Howland Jr. open his post-ruling coverage with the same demand (”A Fraudulent Finish.”)

Republican Dino Rossi should have apologized to Washington state. On Monday, June 6, after seven months of irresponsible rhetoric and fruitless litigation by his lawyers and spinmeisters, Rossi finally ended his bid for the governorship. He did not, however, take personal responsibility for his headline-grabbing, whiny, and expensive litigation. Instead, Rossi took a page out of the playbook of U.S. House Majority Leader Tom DeLay, R-Texas, making an ad hominem attack on the integrity of the state’s highest court. It was as baseless as the rest of his legal arguments and should serve as a reminder that Rossi is deeply wedded to the radical right-wing agenda emanating from D.C.

It has been suggested to me that I should go easy on Rossi for his comments immediately following Judge Bridges’ decision, as he must have been speaking from a deep state of personal disappointment.

Bullshit.

For Rossi to have been deeply disappointed would have required a reasonable expectation that he might have prevailed Monday morning, an expectation that could only have been born out of ignorance, idiocy or ideology. It’s not that I have ever considered Rossi to be the most informed, intelligent or open-minded of candidates, but he isn’t stupid, and if his high-priced attorneys had left him with the impression that he should be measuring for curtains in the Governor’s Mansion, then he should sue them for malpractice. Perhaps the only thing legally surprising about Judge Bridges’ decision was its severity. As Howland reports:

The complete legal rout delivered by the judge came as no surprise to Seattle University law professor John Strait. “It’s pretty much what I would have expected,” says Strait. “I’m not sure that the Republicans ever thought they would reverse the results of the election. This was an organizing tool for them.”

An organizing tool for the state GOP, but I’m not so sure it will turn out to be such a great boost to Rossi’s political career. Had he bowed out gracefully in early January — at a time when the GOP’s most inflammatory allegations were at a fever pitch — he could have assumed the mantle of a martyr who sacrificed his own personal ambitions for the good of the state. Disenfranchised military voters, shady “enhanced” ballots, mishandled provisionals, and felon, dead, and double voters would have forever clouded the results of this election. But now with the charges “dismissed with prejudice” by a cherry-picked judge in conservative Chelan County, voters will be rightly suspicious of any attempt by Rossi to brand himself as a victim of corrupt Democrats. To the swing voters — mostly Democrats — who made this race closer than it ever should have been, the allegations are no longer merely unproved… they are disproved.

As to the party faithful, for whom no amount of evidence or common sense could ever refute the cult of the stolen election, it will be a long four years until Rossi’s inevitable rematch with Gov. Christine Gregoire. A reliable source assures me that it is “100%” certain that Rossi will not challenge Ron Sims for King County Executive. And other sources and circumstances assure me that a US Senate bid is nearly as unlikely. Indeed, the very fact that his campaign staff is finally disbanding, is as strong an indication as any that Rossi’s next race sits well beyond the 2005 or 2006 campaign seasons.

Rossi and his surrogates have made a lot of shrewd PR moves in their efforts to position him for his next campaign, but his Monday evening “concession speech” was not one of them. Rather than issuing an apologia for ending the contest, he should have issued an apology for bringing it.

[NWPT48]Court is back in session, and the Democrats are expected to rest their case by noon. Yeah, I know… I wrote the exact same thing yesterday… but this time I mean it. Really. If you don’t believe me, check out the latest trial update from David Postman in The Seattle Times.

And speaking of Postman
I found this little comment in Postman’s first update of the day, particularly telling:

The courtroom crowd is as sparse as it’s been. No final day surge in attendance, except for a small increase in the press section.

I’m sure a few more people will wander into the courtroom this afternoon for the closing arguments, but the drop in attendance is indicative of the fact that after the Republicans failed to present any evidence of fraud or ballot stuffing, few now expect the trial to produce anything dramatic… you know, like setting aside the election.

Courtroom fireworks! (9:55 am)
Hah-hah… made you look! Actually, all they’re doing right now is admitting evidence. To give you an idea how boring this entire case is, they are up to exhibit number 12,013.

Apparently, when they’re done with this, the Republicans have a couple more rebuttal witnesses. Closing arguments are scheduled for after lunch.

Damn. Postman scoops me (11:42 am)
One of the “rebuttal witnesses” didn’t go so well for Dino Rossi. But since David Postman already reported everything I was going to report, I might as well just blockquote his update:

Deputy state elections director John Pearson, on the stand as a rebuttal witness for Republicans, said that Republican allegations of election fraud and wrongdoing upset members of the “election community” in the state, including himself.

“I certainly shared the frustration and frankly the anger,” Pearson said.

Pearson said specifically that he, as a former military voter, objected to Republican claims that military ballots were not being sent to overseas voters because he knew that was false.

He also cited Republican claims that ballot accounting problems indicated fraud, saying, “We knew there were good reasons why those numbers did not balance.”

‘Nuff said.

Short lunch break (12:15 pm)
Court has recessed until 1:00 pm, half the usual allotted time. Judge Bridges has stated that they would definitely get to closing statements today.

It is interesting to note that contrary to his pattern of the past two weeks, Judge Bridges has routinely sustained Democratic objections during the GOP’s questioning of their rebuttal witnesses. This could be because he’s just getting testy with the Republicans… or it could be that seeing as lenient as he has been, the GOP attorneys have been pushing their luck.

It kind of makes sense for the press to testify (1:27 pm)
Democratic attorney Hamilton has threatened to call David Postman to stand. Man this is getting meta.

Vance, lies and video tape (1:38 pm)
The Democrats just introduced a video of GOPolitburo Chair Chris Vance, in which he vouched for the integrity of elections in King County and Washington state. The tape was from a November 9, 2004 interview on TVW, in which Vance touted his intimate knowledge of KC Elections, having twice served on the canvassing board while a council member. On the subject of election fraud, Vance definitively states:

“I know that there is no fraud going on, nothing nefarious in Washington state. [...] I’ve been as close to it as you can be, and there is no truth to it, at least not here.”

This statement of support was made at a time when it looked like Dino Rossi would win by about three thousand votes. Of course, once it became apparent that Christine Gregoire won, his opinion changed.

John Carlson at 3:15 (2:30 pm)
The GOP finished there rebuttal (finally,) and the court has recessed for 10 minutes. When we come back, closing arguments will commence. Of course, I’ll probably miss a chunk of the closing arguments, while I’m arguing with Stefan on the John Carlson Show, KVI-570, at 3:15.

It’s almost over (2:58 pm)
Closing arguments are underway. Republican attorney Harry Korrell sounds much more subdued in his closing than Dale Foreman was in his opener. He expects to go about 30 minutes.

KVI is covering the arguments live, so Stefan and I won’t be coming on the Carlson Show until after they’ve finished… I’m guessing closer to 5 pm.

Republicans close (3:28 pm)
The Republicans have finished their closing arguments.

I know I’m biased (hey… I’ve always been up front about that,) but I found Korrell’s summation to be disappointing in both form, content and delivery. To borrow Stefan’s paraphrasing schtick: “It’s all King County’s fault… it’s unfair to the rest of the state… and if you don’t set this election aside King County will never mend their ways.”

The GOP has always argued that with more errors than the margin of victory, the court is compelled to set aside the election… which I suppose might be a good argument if the Judge hasn’t repeatedly disagreed with them on this point of law. One of the more curious arguments is that surely, the legislature couldn’t have intended to allow an election like this stand… yet they’ve never gone back to the history of the statutes to argue legislative intent. I can only assume that is because the record wouldn’t support their interpretation.

Jenny Durkan is now giving the Democrats closing arguments.

If I need a lawyer, I’m hiring Jenny Durkan (4:13 pm)
She was great in cross-exam, and she’s great in summation. Yes, I’m biased, but she is in the process of tearing apart the Republican case. She makes Harry Korrell look like an amateur.

The most noticeable difference is that Durkan has spent much more time addressing both statute and case law (not to mention logic.) This is because both statute and case law — as well as Judge Bridges’ previous rulings — support the Democrats’ arguments. Korrell on the other hand, spent much of his time rehashing the litany of errors and illegal votes, adding little analysis to the evidence already admitted.

More later…

Secretary of State refuses to take sides (5:18 pm)
Arguing on behalf of the Secretary of State, attorney Thomas Ahearne refused to take sides and recommend a ruling to the court. However, much to the dismay of the Korrell, he did take issue with many of the Republicans’ mischaracterizations of the election, including the issues of military ballots, duplication and enhancement, and ballot security.

Let me be the first to call for Attorney General Rob McKenna’s resignation. Or at the very least, a very public mea culpa.

Yesterday in the Tacoma News Tribune, Ken Vogel reported on McKenna’s outspoken support for the Building Industry Association of Washington’s (BIAW) efforts to unseat Gov. Christine Gregoire: “Attorney general lauds GOP ally for collecting evidence.” The BIAW gathered much of the “evidence” used by Republicans in their election contest lawsuit, and financed the bulk of Rossi’s unprecedented and dishonest PR campaign to convince the public that this was a stolen election, regardless of the facts. That McKenna would sympathize with these efforts is no surprise, but that he would be so blatant in his public praise for the BIAW at the same time his office is charged with defending the secretary of state — the primary defendant in the suit — is at the very least unethical… if not a total disgrace.

“He’s supporting the entity that’s suing him and it is totally inappropriate for someone who is defending the secretary of state’s office,” said State Democratic Party Chairman Paul Berendt.

McKenna gave the keynote speech at a BIAW meeting, and he was unequivocal in his praise for both the organization, and it’s prominent and controversial role in the election contest. How blatant were his comments? Well, the BIAW, in their typical arrogant fashion, quotes a few of them for us in its March newsletter.

Attorney General Rob McKenna was the keynote speaker at the BIAW General Membership Luncheon at the Board of Directors meeting in Olympia. McKenna praised BIAW’s efforts in electing pro-business candidates in the November election, as well as for the association’s ongoing efforts to aid Dino Rossi’s legal challenge by finding illegal felon votes. McKenna noted BIAW made the most efficient and effective use of its campaign resources, using creative and high impact ideas to achieve the “biggest bang for a buck.” “BIAW is powerful, principled and effective — three important attributes,” said McKenna. “BIAW isn’t intimidated. BIAW doesn’t wilt under pressure,” he said. “That’s why the left fears BIAW. If every organization was as principled, it would be a far better state.” McKenna concluded his speech by thanking BIAW for its fearless and courageous leadership, and encouraged the association to keep up the battle.

Creative ideas? Oh… you mean like mailing out a fraudulent survey to hundreds of Seattle residents in an effort to trick them into giving up their signatures. High impact efforts? I suppose that might be the hundreds of thousands of dollars spent on direct mail, billboards, radio, and print advertising proclaiming “Felons vote, Soldiers don’t,” when in fact all the evidence shows that military ballots were mailed on time, and returned in similar percentages as regular absentee ballots. Pro-business candidates? Yup, that would be candidates like McKenna, on whom the BIAW spent millions of dollars in “independent expenditures” electing.

But regardless of how much McKenna owes his victory to the BIAW and its vicious, partisan hackery, as our state’s elected Attorney General, he steps far outside accepted notions of propriety in lauding and encouraging their role in suing his client. Given ass-licking statements like this, how can we expect McKenna’s office to impartially defend the state from lawsuits he clearly wants the state to lose? In closely following the court proceedings I have been taken aback when the secretary of state’s attorneys frequently side with the Republicans suing them. While the state’s attorneys have generally presented well reasoned arguments, being reasonable is not their job; our legal system is adversarial, and their job is to defend the secretary of state as vigorously as possible… as vigorously as the Republicans are pursuing their case.

McKenna does not have the luxury of picking and choosing cases to defend… he must defend the state from all lawsuits, and to the best of his office’s ability. When Christine Gregoire was attorney general, her office vigorously defended Tim Eyman’s stupid initiatives, as she was required by law. Hell… she even sued me to prevent me from putting my “horse’s ass” initiative on the ballot. That’s the type of impartial, nonpartisan execution of the office we’ve come to expect from our attorney general. And that’s the type of ethical and moral compass Rob McKenna clearly lacks.

When our state’s top law enforcement officer chooses to exercise his power for partisan political gain, all our citizens are at risk.

If you read the headlines in the MSM on May 2, you might have thought Dino Rossi scored a major legal victory in his lawsuit seeking to overturn the November 2004 gubernatorial election. But after studying the transcript of Judge Bridges’ rulings, my initial impression hasn’t changed: it wasn’t a very good day for Dino. While the Judge hasn’t entirely shut the door on the election contest, he certainly clarified the enormous burden Rossi must overcome in order to prove his case. The Judge also seems quite conscious of the inevitable appeal to the state Supreme Court, and has carefully attempted to insulate his decisions from being overturned.

The first ruling of the day was the one everybody anticipated the most, and it’s the only one that didn’t go entirely against the Republicans. The Democrats had filed a motion to have evidence of a statistical analysis excluded from the proceedings, claiming that such proportioning would be inconsistent with the standard of proof required to invalidate an election. Judge Bridges denied the motion, concluding that neither the statutes nor the courts had established guidelines in this area, and thus he would consider such evidence, subject to a “Frye hearing.”

The AP immediately broadcast a headline that implied the court had accepted the Republicans “proportional deduction” methodology, ignoring Judge Bridges’ huge caveat:

However — and this is an important however. The denial of this motion should not be interpreted as a pretrial ruling adopting the statistical analysis methodology, so everyone understands that, and that’s the ruling of the Court.

As I had previously mentioned, my fly-on-the-wall reported that the first issue the Judge addressed in conference was scheduling the Frye hearing, at which the Democrats will argue that the GOP’s methodology is bad science, and thus inadmissible — an argument I don’t expect Judge Bridges’ to entirely accept. After all, we can all imagine a situation where some sort of statistical analysis makes perfect sense; for example, if Yakima County’s touch-screen voting machines had somehow randomly erased 10,000 votes, it would be absurd to argue that this error did not cost Rossi the election.

Thus I do not think the Judge will generally rule out the use of proportional deduction per se, but rather decide that the evidence is not “clear and convincing” in this particular case… a shrewd judicial move. If he were to reject proportional deduction as a point of law, it would leave his decision much more vulnerable to being overturned on appeal. But if he rejects its application as part of his evidentiary findings, the decision is virtually appeal-proof.

Clever.

If you are a Rossi supporter, that’s where the good news ends, such as it may be. The rest of the day’s rulings overwhelmingly favored the Democrats.

The next ruling concerned a motion by Democrats that the Republicans must actually prove a felon voted, by finding a signature in a poll book or on an absentee or provisional envelope, rather than simply relying on the voter crediting records. Judge Bridges ruled in favor of the Democrats, stating:

The process of crediting voters with having voted is a post-election administrative exercise that this Court determines does not bear upon the authenticity of election results….

Republicans shrugged off this ruling as little more than a procedural hassle, and indeed it’s likely the vast majority of felons alleged to have voted, probably did cast ballots. (How many were really illegal votes or not, is another question.)

But if Rossi had planned to argue the same case in a court of law as he has in the court of public opinion, then this ruling represents a huge defeat, for it entirely undermines what’s left of the “total mess” theory… that there were hundreds of unexplained “voterless ballots.” This charge was based on the discrepancy between the number of voters credited with voting and the number of ballots cast, but since the court has ruled that voter crediting has no bearing on the authenticity of election results, the so-called “voter credit discrepancy” is entirely meaningless. (And, I should mention, it also totally validates my refutation of the Snark’s OCD-like focus on this issue.)

In launching his contest, Rossi emphasized a number of allegations in support of his contention that the election was a “total mess,” including: that thousands of overseas military voters had been disenfranchised, that King County had illegally enhanced and duplicated tens of thousands of ballots, and that King County tallied hundreds more ballots than voters. It is telling that none of these allegations will be argued in court, their case almost entirely relying upon a statistical analysis of illegal votes by felons, and unverified provisionals.

“Total mess”… my ass.

After a recess the Court addressed two dueling, related motions, that due to some inexplicable bungling on the part of Rossi’s attorneys, resulted in the kind of ruling that legal malpractice cases are made of. The Republican’s motion argued that upon a prima facie showing that a voter is a felon that had not had his rights restored, the Democrats should bear the burden of proving that the vote was not invalid. Meanwhile, the Democrats’ motion asked the Court to exclude all evidence of illegal felon voters unless the R’s could prove six elements, that the voter was 1) convicted of felony, 2) as an adult, 3) had not received a deferred sentence 4) had not had their rights restored, 5) had cast a ballot, and 6) had marked the ballot to indicate a vote for governor.

But before issuing his rulings, Judge Bridges joined Jim West in sharing with us a glimpse of his bedroom fetishes.

As I was lying in bed last night, I had one of the fears that I think attorneys have had often, I’m sure, did I miss something. Am I going to get in court and realize that there is an issue that I just completely overlooked. Mr. Foreman started out his presentation a few minutes ago with the burden of proof argument, that is, is it by a preponderance of the evidence or is it clear, cogent and convincing evidence. And in actuality, I hadn’t anticipated specifically that that argument was before the Court, based on the written materials that the Court had been presented.

Ohmigod… did Rossi’s attorneys really raise the all important issue of burden of proof, without first briefing the Court? Uh-oh….

I’ll make a ruling. If counsel wish, however, to readdress the issue, I invite counsel to do that.

Translation of obtuse legalese: “You fucking morons.”

Up until this point, Judge Bridges rulings had been rather brief, but perhaps spurred on by the GOP’s amateur performance in arguing what, by any measure, was a truly stupid motion to begin with, he started lapsing into schoolmarm mode. In denying the Republican motion he ruled that “a felony conviction, coupled with the absence of a certificate of discharge… does not establish a prima facie case of illegal felon voting.” He then went on to lecture the GOP attorneys on some legal fundamentals, explaining why the burden of proof rests with the contesting party:

The reasons the burden of proof does not shift is grounded in both our case law as well as our statutes, and the Court, of course, as are counsel, we’re all mindful that the courts of this state presume the certified results of an election to be valid unless the contrary is clearly established. And unless an election is clearly invalid, when the people have spoken their verdict should not be disturbed by the courts.

Just to be sure the Republicans got the point, he then went on to cite statute that stated that registration is presumptive evidence of a person’s right to vote, and that when a voter’s right is challenged, the burden rests with the challenger, and must be proved by “clear and convincing evidence.” The same standard, the Judge ruled, should apply when election results are challenged under RCW 29A.68.020.

Inasmuch as voting is a constitutional right, no vote should be held illegal and discounted absent clear proof that the voter was legally disenfranchised.

Any questions? I didn’t think so.

Next the Judge denied the Democrats motion, but after doing so, issued guidelines for establishing that a felon vote was illegal, pretty much along the lines of what they had requested: that the individual was 1) convicted as an adult, 2) of a felony, not a misdemeanor, 3) was not given a deferred sentence, 4) did not have rights restored, 5) cast a ballot, and 6) marked the ballot for governor. Of course, number 6 is impossible, which the Judge duly notes, but says: try anyway.

And then came the killer. (Yes, it gets worse.)

With respect to and responding to Mr. Foreman as to simply what is the burden of proof, I’m going to say it’s clear and convincing.

At this point, while MSM headlines are still proclaiming a big Rossi victory, his attorneys are probably shitting in their pants. “Clear and convincing” is a very high standard, and it doesn’t just apply to illegal votes, but to the entire case. So for those of you still clinging to the fantasy that the legal definition of “appears” is “appears to Stefan,” it’s time to start moving towards the fifth stage of grief.

And it only gets worse, for now the Judge starts to get a little improvisational. Judge Bridges remarks that he’s notices a theme to the Republicans’ arguments — that an election may be invalidated where the number of illegal votes exceed the margin of victory, without proving which party was credited with illegal votes — and he wants to get this issue “out of the way.” Judge Bridges explains that,

Washington’s election contest statutes clearly require the contestant to show illegal votes or misconduct changed the election result based on RCW 29A.68.110 and .070.

He cites the much debated Foulkes v Hayes case, where the court set aside an election based on evidence that ballots were fraudulently altered, without requiring proof that the result had changed. But, Judge Bridges notes, that Foulkes does not mention these specific statutes. Neither, he notes, does Hill v. Howell, where the court also suggested that “such a showing might not be required where fraud, intimidation or a fundamental disregard of the law had occurred.” Indeed, there’s only be one case where the courts did not require “proof of causation,” and that was Foulkes, a case that involved fraud.

But in our case here today, the petitioners have never alleged, to the Court’s knowledge, or even alluded to fraud or voter intimidation.

Hmmm. I’m guessing that may come as a shock to those of you who have gotten all your election contest coverage from talk radio and the right-wing blogs. So if that describes you, you may not want to read the following:

The rule urged by petitioners may be a wise one and a tempting choice for the Court. However, the Washington legislature has, by enacting RCW 29A.68.110 and .070, removed this choice from this Court’s discretion. The statutory command is clear and the Court should not invalidate the election upon proof the number of illegal votes exceeded the margin of victory.

The final issue of the day was a Republican motion to exclude all Democratic evidence of offsetting illegal votes and other irregularities, a gambit that perhaps was not quite the stupidest motion of the day, but certainly vied for the title of “Most Desperate and Futile.” Needless to say, the Judge denied the motion.

Conclusions

Rossi is toast.

It doesn’t take a genius to see which way Judge Bridges is leaning on this one, and “leaning” is a dramatic understatement… he’s virtually horizontal. Furthermore, he’s carefully constructing a decision that will be extremely difficult to appeal. Every motion to exclude evidence on a point of law has been denied; instead, the decision will be made based on his evidentiary findings.

Of course, none of this is a surprise… to me. I never thought Rossi had much of a case. There had been some thoughtful analysis coming from the other side, but most of it was based on a misinterpretation of the Foulkes decision, as I have previously pointed out here and here. And now even Rossi supporters are beginning to admit the inevitable.

Anyway, sorry to get so wordy. Now that all the evidence is in, and the standards of proof settled, I’ll follow up sometime soon with a brief overview.

There were several votes in Olympia last week that clearly illustrate the philosophical difference between Democrats and Republicans on election reform: Democrats are focused on fixing the problems we know exist, whereas Republicans are focused on fixing the problems they fear might exist.

I’m not going into the details of what the various bills do, except to say that they standardize and streamline registration, elections, and canvassing procedures statewide, while enabling the secretary of state to better screen for felons and non-citizens. What interests me are the most contentious points of disagreement between the two parties.

Republicans are angry that a voter registration and record-keeping bill did not include two provisions they consider the heart of their election reform proposals: 1) require picture ID at the polling place, and 2) completely purge the current rolls, forcing all voters to re-register. Meanwhile, Democrats are struggling to get a bill through the Senate that would move the September primary date back three weeks, to August.

The primary date proposal was the number one priority for Secretary of State Sam Reed, as well as every county auditor to whom I have talked. All of the Republican bluff and bluster over military ballots during the early days of the contest (Rossi has since quietly dropped the issue from his lawsuit) will prove to be just that, unless they get on board and support the only reform that assures these ballots are mailed on time. Moving the date is also the only way to avoid the catastrophic electoral meltdown that will occur in the inevitable event of a razor thin primary contest.

Ironically, while Republicans block the one reform elections experts say we need most desperately, they stubbornly cling to the one reform the experts say would be most counterproductive: purging the rolls. Forcing 3.5 million voters to suddenly re-register would be a logistical nightmare that our state and local elections departments simply don’t have the resources to handle; if you want to introduce errors and illegal voters into the system, this is exactly the way to do it.

Likewise, requiring a picture ID to vote, places an unreasonable burden on the six percent of voters without a drivers license or passport — predominately seniors and the very poor — adding little upfront security in return. The Democratic measure does require identification at the polls, but allows a utility bill or voter registration card to suffice. Last time I checked, it was a helluva lot easier to get a fake ID in your name than an account with a local utility.

But such arguments miss the point, for the most outrageous part about the Republicans’ feigned outrage that the Democratic measures don’t go far enough to stop the illegal voter problem, is that they have presented absolutely no evidence that we have an illegal voter problem in the first place. With all the time, money and effort that Republicans have put into uncovering illegal votes in the 2004 election, the only substantial numbers found were that of felons who have not had their voting rights restored… and this problem would be largely solved without further legislation, once the statewide voter database (two years in the making) goes live in 2006.

The first-ever computerized state voter database will replace 39 separate county lists, some meticulously kept on file cards.

Once it comes on line in January, it will enable election officials to make sure that felons, dead people and non-citizens aren’t allowed to vote and that people aren’t registered in more than one locale or voting more than once per election.

Secretary of State Sam Reed and state and local election officials are optimistic that the move will purge and protect the voting lists and guard against illegal votes.

By merging voter registration and drivers license data with felons lists and data on deaths from Social Security and the Department of Health, this database would have eliminated nearly every illegal voter uncovered thus far. The Secretary of State is also trying to get access to federal databases on non-citizens… both legal and illegal aliens.

But even in this last election, the number of illegally registered voters was statistically tiny… the SOS estimates maybe 2,000 out of 3.5 million registered voters… about 0.05 percent. And the vast majority of these were the felons the database will be most capable of purging.

Republican rhetoric about polling-place vote fraud is not only unsupported by the evidence, it is implausible. A picture ID at the polls is intended to stop an individual from casting a ballot under another voter’s name — a crime for which there was not a single allegation from the last election — and which in any case, would be a logistically impossible means for individuals to skew a typical election.

That Republicans would focus on imagined problems while ignoring the known ones, suggests an unfortunate willingness to continue to politicize what should be a bipartisan issue. Clearly, purging the rolls is intended to wipe out years of Democratic voter registration efforts, while a picture ID requirement would mostly inhibit voting by the very poor and the very old… a predominately Democratic constituency.

But of course the Republican’s main motivation for harping on voter fraud, is that it fits so neatly with their ongoing PR campaign, painting Gov. Christine Gregoire as the illegitimate beneficiary of a stolen election. To view the Republican focus on fixing non-existent problems in any other light, would be naive.

UPDATE:
Actually, the state Democrats do a pretty good job of explaining their stance on election reform.

The Seattle Times reports today that the Rossi camp is complaining about a number of rejected provisional ballots that were found to have had their envelopes opened. Interesting. But I actually chuckled at the article’s lead:

Republicans yesterday found what they say is a new reason to question King County’s handling of ballots cast in the November election.

Come on… we all know the Republicans have only one reason to question King County Elections… it’s good politics.

This is a particularly stupid issue, and shows how desperately they are grasping at rhetorical straws. Generally, provisional ballots are left sealed in their security envelopes unless they are verified. But KC Elections spokeswoman Bobbie Egan explained that the envelopes in question were opened under standard procedure, to determine whether voters had used ballots appropriate to their home precincts. Most provisional ballots don’t have to be opened, because the outside envelope includes enough notation to indicate the type of ballot.

“Procedures were followed,” Egan said. “We’re not hiding anything. This is no smoking gun. This is something that both parties had full knowledge of during the 15-day window after Election Day.”

She said the process “was highly scrutinized by party observers during this time, and it is absolutely ridiculous that they waited to politicize this process five months after the election. There were no requests by the dozens of party observers to change procedures during the time these ballots were handled.”

Sheryl Moss, certification-and-training-program manager for the secretary of state, said neither state nor federal law prohibits opening provisional-ballot envelopes before voters’ eligibility is determined.

Provisional ballots have less secrecy than other ballots, Moss said, because election workers are required to verify that the voter’s votes are counted only for candidates or issues he or she is eligible to vote on.

Of course, GOPolitburo Chair Chris Vance isn’t mollified:

“There’s no good possible explanation for it,” Vance said.

Um… there is a good explanation for it, and both Egan and Moss gave it. The envelopes were opened according to procedure and law, under the scrutiny of observers from both parties. For Vance to imply that there is something shady about this, is to imply fraud… and that is exactly what that shameless, lying bastard is implying.

Well… prove it.

But then, while Republicans have quite skillfully hurled allegations, actually proving things isn’t exactly their strong suit. No wonder Dino Rossi’s attorneys filed a brief yesterday in Chelan County, in which they make the absurd contention that when it comes to their suspect list of alleged felons, the burden should fall on the Democrats to prove that they are not illegal voters… an argument so outrageous, you’d think Stefan was leading their legal team. (And why not… he’s a self-proclaimed expert at everything else.)

In any case, such a contention is wholly unsupported by RCW 29.A.08.810, which clearly states:

Registration of a person as a voter is presumptive evidence of his or her right to vote at any primary or election, general or special.

And Judge Bridges further enunciated this basic principle — that the burden of proof falls on the challengers — when he stated:

Our Supreme Court has observed that election officers are presumed to have complied with the duties required of them in an honest and careful manner. That was the Quigley case. And also in Quigley the Court noted that the returns of any election official are entitled to the presumption of regularity….

Perhaps his attorneys and party officials misled Rossi into believing he actually stood a chance of prevailing in court, but whatever his personal motivation, his surrogates have clearly been more focused on the public relations battle than the legal one.

Anybody who has ever worked on the giving or receiving end of a well-planned PR campaign can see that the steady stream of GOP allegations and photo ops are part of an ambitious strategy to consistently hit a weekly news cycle. Sometimes they are fortunate to have real news fill the gap — like the 94 uncounted absentee ballots — but most of the media flaps have been entirely manufactured. Slade Gorton making an ass out of himself demanding a criminal investigation… accusations that Cheryl Scott can’t be trusted because she’s (gasp) contributed to Democrats in a heavily Democratic state… mock outrage over provisional ballot envelopes Republican observers quietly watched being opened five months ago… these have all been neatly penciled in on a media calendar pinned to the cubicle wall of some Rossi PR consultant.

I have no doubt that early on, blinded by an irrational fear and hatred of “the other,” some GOP operatives actually believed that if they looked hard enough, they would surely find conclusive evidence of a stolen election. But that hope has long since faded for all but the most faithful rank and file. What started as specific charges of Democratic corruption and disenfranchised military voters has gradually morphed into the vague and inchoate message that the election was a “total mess.”

The Republican propaganda machine attempts to paint this Jackson Pollock like image of an election gone awry, by splattering allegations here, or revealing them in dribs and drabs there. But to have a complete and accurate picture of this election, it must be remembered that no matter how many errors are discovered, on however many different occasions — and no matter how torturously long and twisted is the public narrative revealing these errors — they all occurred during the same 15-day period, under the intense scrutiny of the media, and observers from both parties.

It may fuel the Republican PR campaign to focus on when the errors were discovered or revealed to the public. But the only questions that really matter are: How many errors occurred? Did they change the outcome of the election? How did they happen? And how can we prevent them in the future?

Everything else is bullshit.

Back on November 2, the gubernatorial election was far from my major concern.

I spent much of election day following the exit poll leaks, buoyed by what appeared to be record voter turnout nationwide and stronger than expected support for John Kerry in several key states. But as the polls started closing, reality set it — Ohio, which seemed certain to break Bush’s back, inexplicably broke Kerry’s instead. I never went downtown to the big Democratic “victory” party, instead choosing to watch the defeat unfold at home. That night, alone in my despair I blogged:

I never accepted the legitimacy of W’s first administration and I will never accept the legitimacy of his second. At this moment, I cannot imagine being convinced that this was a free and fair election. Quite simply, I fear for our democracy.

To which HA received its first mention from the kind folks over at (un)Sound Politics; a short, smug, snide, and perhaps deserved dig: “Yeah, whatever, aluminum hat boy.”

We had no history at that point, and I thought Stefan could have shown a bit more empathy, allowing me a brief moment to sit political shiva. But I recognized his comment as the kind of sarcastic cut I might make, and so I took it in stride, and replied in a self-deprecating manner in Stefan’s comment thread. (At that point, I still believed him to be a reasonable person with whom one could have a reasonable and lively — if somewhat insulting — debate.)

As to Ohio? Well, I’ve barely followed it, and have hardly mentioned it here since… partly because I prefer to make accusations of election fraud based on hard facts, and partly because I got sucked into covering events back home.

Ironically, it turned out to be Stefan who sported a chronic case of helmut-hair from his mind-control-ray-blocking headwear.

Even before the election, the (u)SP folks were steeling themselves for defeat, bandying about the reassuring notion that the Washington state GOP’s dismal history at the polls was more a result of “distributed vote fraud” than actual rejection by the electorate. And from the very first prolonged vote count, Stefan and his fellow travelers quickly established themselves as the gubernatorial election’s leading conspiracy theorists.

From the 10,000 “mystery” absentee ballots that screwed up Stefan’s spreadsheet during the first count, to the military ballot hoo-hah, to enhanced ballots, to provisionals, dead people and felons, die-hard Rossi supporters have been snapping up (u)SP’s conspiracies like they were iPods. Meanwhile, I confidently sat back and waited for each new theory to be debunked — as they all have been — secure in the knowledge that most conspiracy theories remain just that.

See, the main problem with your run-of-the-mill conspiracy theory is that it proposes an actual conspiracy… an exercise that typically proves to be considerably less daunting in theory than in practice. Conspiracies tend to be logistical nightmares. They require opportunity, planning, execution, and absolute secrecy. And above all, they require motive.

I’m not talking about the institutional motive of one party wanting to win an election over another… I’m talking about the individual conspirators, whose motives must be strong enough to balance the inevitable consequences of getting caught. For example, why would Dean Logan, a career civil servant, risk a lengthy prison sentence on behalf of Christine Gregoire? All ethical and moral considerations aside, we can assume that Logan would not participate in such a conspiracy unless the risk was small, the benefit large, and the objective achievable.

It is on that last point that I laugh off any suggestion that the improperly scanned provisional ballots are evidence of some organized vote fraud conspiracy, because it overwhelmingly fails the “why the fuck?” test, as in: “Why the fuck would you only stuff 660 ballots?”

Nobody expected this election to be anywhere near this close. If Gregoire had won by only 30,000 votes, surprised political pundits would have painted this a moral victory for Rossi and the Republicans, instantly marking Gregoire as vulnerable in 2008. But 129 votes? Get real.

Why bother risking the scandal of stuffing 400 or 600 or even 900 ballots when such numbers would have no reasonable expectation of impacting the election? Such a piddling conspiracy would be absolutely pointless without the hindsight we now have as to the extraordinary closeness of the actual results. And if anything, the Democrats were overconfident about the governor’s race.

Elections simply aren’t this close. Thus any conspiracy at the polls on election day would have to be massive to have any hope of impacting the outcome of a statewide election. Anything less would be just plain silly. I’m not absolutely precluding the possibility that somebody might be stupid enough to risk going to jail for stuffing a couple hundred votes in an election Gregoire expected to win by over 100,000… but it just doesn’t seem likely, does it?

So if you’re looking for corruption, it’s going to have to be of the official variety, and it would have had to occur post-election, during the recounts, by canvassing workers, election officials, even the canvassing board itself. And in the context of the recounts, people were looking for official corruption… and very carefully. Say what you want about the hand recount, but there is no arguing that it was an extraordinarily transparent operation, with bipartisan observers watching and participating in every detail. If Dean Logan managed to steal this election during the hand recount, without getting caught, then you’ve got to wonder what a fucking genius like Dean is doing in such a shit-ass job like his? A criminal mastermind like that should be selling tanker planes for Boeing… or working for Karl Rove… not sitting before the King County Council subjecting himself to misleading grandstanding from the likes of Raymond Shaw Reagan Dunn.

Whatever.

The point is, conspiracies are a helluva lot easier to theorize than they are to execute (or disprove;) to borrow a phrase from President Bush, they’re “hard work.” And that’s ignoring the fact that most people — even Democrats — are basically honest… and that even the most dishonest folk are reluctant to so blatantly break the law knowing that each and every one of their actions would be subjected to such microscopic scrutiny.

So my confidence that official corruption is the least likely explanation for the outcome of this election is not based on a naive trust in public officials, but rather on the simple logic that anybody who would be stupid enough to have engaged in such a conspiracy under these circumstances would have to be too stupid to have gotten away with it. If fraud occurred, the evidence is there, and you can be damn sure Rossi’s attorneys and the BIAW would have discovered it by now.

Were mistakes made during this election? Absolutely! Were election officials sometimes not as forthright as they could have been? Perhaps… but then, if I was in their shoes I might have been just as cautious.

If Rossi can prove that irregularities and illegal votes cost him the election, then the results will be set aside. But he has absolutely no evidence of organized fraud or corruption, and for people like EFF President Bob Williams to be squawking on talk radio that Dean Logan is a “crook” who should be jailed, is downright inexcusable.

The scary part is, that despite all the logical inconsistencies, and despite the months of sleuthing that has failed to turn up a single shred of evidence of official corruption, there are still people that are absolutely convinced that Democrats, actively, intentionally, and illegally stole this election. And to them I say: “Yeah, whatever, aluminum hat boy.”

The Election Reform Task Force released its report (download PDF,) calling for the following improvements to the state election process:

• Moving the date of the primary election at least four weeks earlier to give election supervisors sufficient time to certify the primary results, mail the general election ballots and prepare for the general election.
• Requiring voter identification to get a ballot at the polling site. Voters without identification would be issued a provisional ballot.
• Improving voter registration records. To assure the voter rolls do not include illegitimate voters or duplications, the task force recommends a strong effort to bring a new statewide voter database online as soon as possible.
• Improving military ballots. Moving the primary date earlier would improve the ability of service men and women to participate in elections. The task force also recommends a system of deployment notification and ballot delivery tailored to those members called up and expected to be away from home on Election Day.
• Assuring statewide procedural consistency by giving the Secretary of State a stronger role to bring about a more consistent election process between counties.
• Providing clearer warnings and stronger enforcement of voter fraud. The Legislature should evaluate whether current penalties are enough of a deterrent to voter fraud and whether sufficient funding is provided to investigate and prosecute this type of fraud. The task force recommends clearer warnings in voter material and on the back of ballot envelopes.
• Setting a consistent date for certifying results. To minimize the perception of impropriety, the task force recommends that all counties certify their results on the same day.
• Modifying provisional ballots. Provisional ballots should be a different color than regular ballots and provisions made to halt such ballots from being read by the optical scanners at the polling sites.
• Providing for mandatory review or audit. The task force believes that, to restore trust in the elections systems, a strong, structured review or audit program should be conducted by the Secretary of State’s Office.

The only one of these recommendations I have any qualms over is the one requiring ID, for pragmatic reasons I intend to get into later. But the rest of the reforms seem pretty uncontroversial.

In fact I’m sure the biggest criticism of the report will be that it doesn’t go far enough. For example, I believe it is critical to mandate voter verifiable paper trails for electronic voting machines, whereas some of you on the right would probably prefer much tighter voting procedures… you know, like restricting the franchise to propertied, white males.

I’d like to take some time to really explore election reform in detail, but before I start pontificating, I thought I’d open this thread as an opportunity for all of you to tell me what kind of election reform you want to see. I want to hear your suggestions. Really. Even all you righties. (Well… most of you righties.)

So let’s try to keep this relatively civil — by HorsesAss.org standards — and on topic.

Part I of this exciting series on today’s plodding King County Council meeting can be summed up as follows: the military ballots went out on time, ballots were enhanced legally, and yes, some ineligible felons voted, but no it wasn’t due to corruption or negligence on the part of elections workers.

(Hmmm… perhaps Part I was a bit verbose?)

In this installment I will address the 348 improperly scanned provisional ballots, the 735 “no signature on file” ballots, and the incredibly overblown issue of the so-called “discrepancy.”

Provisional Ballots

As has been widely reported, KC Elections determined that 348 provisional ballots had been improperly scanned into the AccuVote machines at the polling places, before they had been properly canvassed to see if they were legal votes. Of these, 341 have been traced to specific voters, and 252 are confirmed to have been cast by valid, registered voters.

The proper procedure is that you sign a poll book, fill out a ballot, place it inside an envelope, complete the envelope, and deposit it in the slot in the side of the AccuVote machine. Once back at the counting center, election workers verify the envelopes, just like an absentee, before adding the ballot to the count, or rejecting it.

KC elections was able to determine who cast most of these polling-place-scanned provisional ballots by comparing the poll books with the provisional envelopes received from the polling place; those who signed the poll book but for whom there are no envelopes are assumed to have fed their ballot directly into the machine.

It should be noted that they cannot directly associate a specific ballot to a specific voter (secret ballot and all that), and just because a ballot has not been confirmed to have been valid, doesn’t necessarily mean it isn’t. But it is clear that we have as many as 96 provisional ballots in KC that might not have been counted, had they been caste properly… and there is no way to sort them out of the mix.

Can we attribute this to election worker or administrative error? I don’t see how not. While nearly 99 percent of the over 31,000 provisional ballots were cast properly, this is an error for which there is an easy technical solution. In fact, it is so easy, that KC just implemented it in last week’s special levy election: provisional ballots had stickers placed over their barcode so that they could not be scanned at the polling place. Well, duh-uh! I suggest that a more secure solution would be to print provisional ballots with different barcodes, so as to avoid potential tampering with stickers.

Councilmember Steve “The Executioner” Hammond, believes the only way to restore public faith in elections is for “heads to roll,” but as Councilmember Julia Patterson pointed out, King County Elections only has 43 full-time employees… the polls are actually staffed by over 4000 part-time volunteers (they get nominal pay for a 12-hour day), “average citizens who come forth to engage in the democratic process.” These are the “grandmothers” that some council members talked of, and Patterson warned that talk of “heads rolling” would discourage engagement.

Personally, I’m well familiar with these grandmotherly poll workers. My South Seattle polling place has been staffed by the same table of little old ladies since I started voting there seven years ago. If Hammond is patient, I’m sure many of their heads will fall off on their own in short time.

Anyway… while it may not be satisfying to say that “mistakes were made,” and leave it at that, mistakes were made by poll workers — with about one percent of provisional ballots — and now KC Elections has devised a procedure to prevent such mistakes in the future. Problem solved.

As to what this means to Rossi’s contest, well, I’m not sure it means all that much. Remember, in addition to the grandmas, the polls were watched by observers from both parties, including an army of attorneys. If there have been any reports of massive election day fraud regarding provisional ballots, I haven’t heard it. Rossi can’t prove who the 96 ballots were cast for… at the very best, maybe a judge might value average them, taking away about 18 votes from Gregoire’s margin. But I doubt the courts would even go that far.

The 735 No-Signature-On-File Ballots

Isn’t it curious that of all the errors supposedly committed by incompetent KC election workers, the Republicans never mention this one? 735 absentee ballots were improperly left out of the first two counts because signatures had not been scanned into the computer for those voters. After these votes were discovered, the canvassing board verified and counted 566 of them (backed up by a unanimous Supreme Court decision.)

Keep this in mind… part of the Republican mantra (stupid as it may be) is that Rossi “won” two out of three counts. But if these ballots had been properly canvassed the first time around, Gregoire would have won the machine recount… leaving Rossi to pay for a hand recount. As Councilmember Raymond Shaw Reagan Dunn profoundly pointed out, “perception is reality.” Imagine how different public perception of this election might be if Gregoire had “won two out of three” counts?

In any case I didn’t hear Hammond asking for heads to roll over this one.

And finally… “The Discrepancy”

What a load of shit.

I was talking to a reporter before the meeting, and he said I had to admit, that intuitively, it looked suspicious. And I did have to admit it… intuitively it does. But only if you don’t understand any of the underlying facts. In fact this “controversy” is based on a false assumption that these two lists were ever intended to reconcile with one another.

To put this in the proper perspective, Councilmember David Irons (hmmm… what’s he running for?) repeated his “recollection” that the 2000 discrepancy at certification was only 17 as “confirmation” that the 2004 number is out of whack. When asked about this after the meeting, Dean Logan questioned what Irons might have been recalling, considering the fact that the voter list isn’t compiled until after certification. (And I’m totally ignoring the bizarre notion that Iron’s 4-year-old “recollection” is more accurate than the actual numbers recorded on file.)

Remember the cries from the right that it was criminally irresponsible to certify this election if the voter list didn’t reconcile with the ballots cast? Kind of hard to make that a condition of certification when the crediting of voters doesn’t occur until afterwards, huh? As Logan made absolutely clear, there is “no legal reconciliation process,” an assertion that has been repeated to me by every auditor’s office I have talked to. The voter list is compiled out of an entirely different process than the count of ballots cast, and for entirely different purposes.

In addition to recording about 600,000 absentee voters, the list is compiled by hand scanning the barcode next to each signed line of over 2600 poll books. If KC Elections could fail to scan the signatures from 735 registration cards, imagine what kind of human error a hand-held scanner introduces into the process. 1,800 misscanned voters is not only understandable, it’s completely consistent with past elections and other jurisdictions. So there.

I don’t really want to expend many more pixels on this issue, as really, it is a legal non-issue… however much the public may have swallowed the righties’ propaganda. But the ever earnest Councilmember Bob Ferguson spent some time trying tease out of Logan that if one precinct had 10 extra voters and another had 10 extra ballots, then that should be a net discrepancy of 20, not zero. (The Snark nodded his head hungrily at this, so I’m sure we’ll be hearing this thesis from the dark side.) But Logan wouldn’t bite, as it ignores a fundamental aspect of voter accreditation.

Over 28,000 provision ballots were counted. And for each one, the ballot was counted in the precinct in which it was cast, where as the voter was credited for voting in the precinct in which he is registered. But if Ferguson’s logic is followed, these 28,000 provisional ballots would create a 56,000 vote discrepancy on their own!

That’s what happens when you try reconcile apples with oranges.

Ah well… I’ve run off at the fingers again. I’ve got a few more observations and comments to make, but I guess I’ll have to save them for Part III.

Before the start of today’s King County Council Meeting, I shook hands with Stefan… and the universe didn’t explode. So I guess us bloggers are just ordinary folk after all.

Anyway….

I didn’t really expect there to be much news generated at this meeting, as it mostly consisted of KC Elections Director Dean Logan presenting his previously released report on the November election. But there actually were a couple issues he cleared up. (At least in my mind… maybe not in the minds of some of the slower councilfolk.)

Military & Overseas Ballots

According to Logan these ballots are one and the same, and they are all mailed in postage paid envelopes provided by the federal government. Thus there is no bulk mail account or third-party mailing house with records to check. They were delivered directly to the post office, by the Oct. 8 deadline… and an internal department log confirms this.

This seemed perfectly clear to me and other members of the audience, but not apparently to Councilmember Kathy Lambert, who followed up by asking Logan if he was aware that the mailing house didn’t send these out until Oct. 13. Um… KC didn’t use a mailing house for these ballots, and Logan repeated that they were mailed out on Oct. 8. Additional military & overseas ballots went out as requests came in.

So as expected, this is a non-issue.

Ballot Enhancement

There have been conflicting reports as to the process by which ballots were enhanced. Some reports say election workers used redacting tape, and then marked over the tape. Some reports claim workers marked the ballots directly. It turns out, both are true.

In cases where the worker could fill in the oval without obscuring the original mark, the ballot was enhanced directly… for example, where the voter circled the oval, and the election worker filled it in. Logan showed a slide illustrating just that. However, where filling in the oval would have obscured the mark — such as in a partially filled in oval — redacting tape was placed over the oval, and then the worker marked the tape. In all cases, the enhancement was done by a two-person team with an observer present, and a log of the changes were kept as required by law.

Just to be sure, I confirmed this with Logan after the meeting. So again… this is a non-issue.

The Felon Vote

Logan says that the department has passed on to the prosecutors office a list of about 100 suspected felon votes. The prosecutor will investigate, and pass on to the sheriff’s office those cases that warrant further investigation. This is the standard procedure, but when asked, Logan did not know of a single case in which a felon has been prosecuted for voting.

Councilmember Steve “I love grandmothers” Hammond attempted to grandstand on this and other issues, demanding “a head to roll” for election worker errors. But as Logan explained, the felon vote was not due to election worker error, as they do not currently have the ability or the authority to perform background checks on registered voters. To back up this claim, Logan cited RCW 29A.08.520:

RCW 29A.08.520
Felony conviction. (Effective until January 1, 2006.)

Upon receiving official notice of a person’s conviction of a felony in either state or federal court, if the convicted person is a registered voter in the county, the county auditor shall cancel the defendant’s voter registration.

That’s it. When the county receives notice from the court of a felony conviction, the felon is removed from the rolls. But there is no statutory authority to do so at any other time, and indeed no way to do so without a centralized database.

Hammond suggested that background checks would fit with the spirit of the law. And newly minted Councilmember Reagan Dunn (who eerily resembles Liev Shreiber’s character in “The Manchurian Candidate”, in both appearance, manner and um… circumstance) took the opportunity to tout his experience as a federal prosecutor in pointing out that, well… I’m not really sure what he was pointing out, except that he put a lot of bad people behind bars and there’s gotta be an awful lot more felons on the rolls than King County realizes.

Which may be true. But what both Hammond and Dunn fail to acknowledge is that it’s all really a moot point. If they were paying attention to Logan’s explanation, and had bothered to read the RCW, they would have noticed that the current statute expires on Jan. 1, 2006, and is replaced with the following:

RCW 29A.08.520
Felony conviction. (Effective January 1, 2006.)

Upon receiving official notice of a person’s conviction of a felony in either state or federal court, if the convicted person is a registered voter in the county, the county auditor shall cancel the defendant’s voter registration. Additionally, the secretary of state in conjunction with the department of corrections shall arrange for a periodic comparison of a list of known felons with the statewide voter registration list. If a person is found on the department of corrections felon list and the statewide voter registration list, the secretary of state or county auditor shall confirm the match through a date of birth comparison and cancel the voter registration from the official state voter registration list. The canceling authority shall send notice of the proposed cancellation to the person at his or her last known voter registration address.

Now maybe I’m naive, but my take is that if the statute actually granted county officials the authority and ability to routinely purge the rolls of felons, the Legislature wouldn’t be adding a provision that grants county officials the authority and ability to routinely purge the rolls of felons. This change is required by the federal HAVA act, and becomes effective by the federal deadline, coinciding with completion by the Secretary of State of the statewide database that makes its provisions possible.

Did felons vote? Sure. Was it King County’s fault? No. Shouldn’t we do something about this? We already are.

So, if Dino Rossi can prove that the felon vote changed the outcome of this election, then I guess he’ll be named governor. But if you’re looking for proof of corruption or incompetence in King County Elections… you’ll have to look elsewhere.

Whew!

I hadn’t meant to write in such detail, so I’m going to post Part I now, and then post Part II upon it’s completion. Coming up… Provisional Ballots and the so-called “Discrepancy.”

[For more information, read King County's 2004 Elections Report.]

UPDATE:
Read Part II.

Mid flight analysis:

I’m flying at 35,000 feet, halfway between Seattle and Philadelphia, but before takeoff, Andrew was kind enough to give me a lunch-break update from the Chelan County Courthouse. Apparently, Judge Bridges ordered the turkey club sandwich, but picked out the tomato. The Secretary of State’s lead attorney, Thomas Ahearn, had the chicken caesar salad, as did the Democrats’ Jenny Durkan (only with the dressing on the side.) Meanwhile the Republican legal team disappeared into a private conference room, only to emerge 30 minutes later, slightly disheveled and stinking of gin.

And oh yeah… the judge dismissed the 39 county auditors as defendants, while denying the Democrats’ motions on venue and jurisdiction.

Yawn.

I suppose it’s possible I’ll get to Philly, go online, and discover something dramatic happened. But I doubt it. Besides, it’s really all just foreplay until we get to the Supreme Court. (Not that I’m dissing foreplay.)

Speaking of which, I’m sure the cunning linguists over on the right-wing blogs have been wagging their tongues for hours now about Rossi’s stunning legal victory… whatever the ruling. But despite their best efforts to seduce voters with promises of a rock solid election, passion continues to steadily wane for their flaccid “re-vote” campaign.

[Editor's note: No, I'm not drunk... I've had nothing but tea and water. I'm just bored. Really, really, really bored.]

In fact, this whole election contest has been kind of a tease, hasn’t it? We have hundreds of felons voting for Rossi. Hundreds more unverified provisional ballots most of which have now been verified. Military personnel denied the vote even though ballots were mailed out on time, and returned in numbers matching the general public.

But the biggest tease of all, is the allegation that they have irrefutable proof of a stolen election, when all they’ve really uncovered are the types and quantities of errors we expect to see in any election of 3 million ballots cast.

So that’s my post ruling analysis. Let’s see how it holds up once I land and see the actual rulings for myself….

Post flight analysis:

Okay. I’ll preface my postscript by reiterating that none of this really matters, because the final ruling will be made by the Supremes.

But… if this ruling did matter… then it wouldn’t be a very a good day for Dino Rossi. I think.

I haven’t seen the transcript, but according to David Postman in The Seattle Times, Judge Bridges’s ruling may have given a fatal blow to the Republican case:

But he ruled that Republicans must show any illegal votes were cast in favor of Gregoire, and not Republican candidate Dino Rossi. There would have to be enough illegal Gregoire votes to erase her 129-vote victory margin.

Bridges said that if Republicans did prove their case, he would not order a new election for governor as they want him to do. Rossi has said that was the only remedy he would accept.

Democrats had argued the judge didn’t have that power, and Bridges agreed. He said state law and the state constitution do not give him the power to order a new vote, which he called “special relief.”

Remember what I wrote about the court lacking “general equity jurisdiction” in an election contest for an executive office? Both these rulings (assuming this was the ruling) seem to support this interpretation. Essentially, the judge has said that he would hold the contest to the narrow confines of the statute. That is exactly what the Democrats wanted.

Anyway, I’m continuing to wade through the available reports, and will post a more detailed analysis tomorrow.

In the final segment of what has turned into a three-part series on the legal basis of the election contest, I now turn to the election statute itself.

The GOP petition claims the court has jurisdiction to set aside a gubernatorial election “pursuant to RCW 29A.68.011 et seq., and the court’s plenary powers.” Yesterday I suggested that the irregularities alleged thus far do not constitute the “gross violations” necessary for the court to nullify the election under its general equity jurisdiction. Today I’d like to briefly discuss the statute itself, and how the various allegations might fit into a decision.

The GOP clearly relies on Foulkes v. Hays for precedents, a 1975 case in which an Adams County commissioner’s race was set aside due to ballot tampering. The following excerpt provides the heart of the Rossi camp’s arguments. (Please note that RCW 29.65.010 is now RCW 29A.68.020, and RCW 29.04.030 is now RCW 29A.68.011.)

[2] Here the trial court correctly ruled that RCW 29.65.010 did not apply to respondent Foulkes’ claim. The only subsection of that section which is claimed to be applicable is subsection (5), which allows contests to be brought on the basis of “illegal votes.” But, as the trial court held, the term “illegal votes” has been held to refer not to fraudulently altered ballots, but to votes “cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law.” … Such a limited interpretation of this phrase here is especially appropriate in light of RCW 29.65.090 , which requires a person alleging illegal voting in a statutory election contest to provide the court with the names of those who cast them. In a situation such as the trial court found existed here, it might be impossible to show by whom the ballots were altered, though it is proven that the alteration took place. To impose a requirement that an election contestant produce a “smoking gun” to obtain relief in such circumstances would deprive him of relief despite the clear merits of his claim that the election was invalid. RCW 29.65.010 therefore did not apply, and the trial court correctly proceeded under the alternative authority provided it by RCW 29.04.030 .

Essentially, we have two kinds of allegations: illegal votes, and other irregularities. Illegal votes in this case most likely consist of those cast by felons or on behalf of dead people, and those cast by people who voted twice. The disputed provisional ballots are not illegal; they were “cast in the manner provided by law” but improperly canvassed. None of the other alleged irregularities — enhanced ballots, disenfranchised military voters, voter roll discrepancies — can rightly be considered illegal votes.

As defined in RCW 29A.68.020, illegal votes will be considered under the standard set forth in 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.

Except for the phrase “unless it appears” there is nothing ambiguous about this statute. Contrary to the oft repeated GOP mantra that all they need to do is prove 129 illegal votes, it is clear that they must at least show the appearance that these votes benefited Gregoire over Rossi in numbers sufficient to have changed the outcome. Fat chance. It will be amusing, if the GOP has the balls to issue subpoenas, to see how many felons actually voted for Rossi.

But the bulk of the GOP’s allegations regard the other irregularities. The question remains… what is the standard for evaluating the impact of these irregularities, and what are the available remedies.

Rossi supporters take solace from Foulkes, where the court ruled that the altered ballots were not “illegal” as defined by statute, but rather, fraud that resulted from neglect. Since RCW 29.65.010 could not apply, the Supremes upheld the lower court’s decision to rely on RCW 29.04.030 (now RCW 29A.68.011.) Indeed, Foulkes apparently set aside the election based on this statute. But Foulkes is not the last word in court decisions.

In seeking to prove that the courts have jurisdiction over contests for statewide office, the GOP petition also cites a more recent 1995 case, Becker v. Pierce County. This decision also discusses RCW 29.04.030, and curiously concludes:

Finally, if Becker were limiting her claim for relief to that provided by RCW 29.04.030(4) alone, invalidation of the election, the relief she seeks, is not a possible result. Under that statute, the only relief that a court may afford is to order that the offending person “forthwith correct the error, desist from the wrongful act, or perform the [neglected] duty and to do as the court orders”.

This appears to directly contradict the Foulkes decision.

So, does the contest statute address the types of irregularities alleged by the GOP? Well, if you accept that an error implies “neglect,” and that neglect implies “misconduct,” then RCW 29A.68.070 clearly comes into play:

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 vote.

Read it any way you want, but it seems clear to me that the standard for annulling an election due to “irregularities” is awfully similar to the standard for “illegal votes.” Indeed Foulkes, actually sets a very high standard. The evidentiary findings concluded that failure to properly secure ballots constituted neglect, that this neglect resulted in ballots being fraudulently altered, and that these ballots were altered “such as to procure” the election for the appellant.

I just don’t see how Rossi meets these standards, for while he certainly might prove neglect, there is no evidence that such neglect resulted in fraud or served to procure the election for Gregoire.

Military ballots were sent out on time, and returned and counted in percentages consistent with overall voter turnout. Ballots were enhanced consistent with WAC 434-261-080, and there is no evidence the process favored Gregoire. Provisional ballots were improperly scanned at polling places throughout the state, and the vast majority would have been legally counted anyway. And the “discrepancy” between the voter list and the number of ballots cast is not evidence of fraudulent votes, but at worst, the lack of evidence to the contrary.

Based on the evidence presented thus far, this election and that in Foulkes have very little in common, and thus little if any precedent can be drawn from the prior case. Rossi’s case does not meet the high standards of that in Foulkes, nor those required for setting aside an election under the cited statutes. Furthermore, Rossi’s appeal to the “plenary powers” of the court is undermined by his reliance on a contest statute that clearly anticipates such irregularities as those alleged, and clearly states that annulling an election is not an appropriate remedy unless it can be shown that these irregularities changed the outcome.

But, much to my mother’s chagrin, I’m not an attorney. So what do I know?