http://story.news.yahoo.com/news?tmpl=story&cid=519&ncid=519&e=5&u=/ap/20050124/ap_on_re_us/tires_slashed_election

Excerpt: Lawmaker's Son Charged in Tire-Slashing

By GRETCHEN EHLKE, Associated Press Writer

MILWAUKEE - The sons of a first-term congresswoman and Milwaukee's former acting mayor were among five Democratic activists charged Monday with slashing the tires of vans rented by Republicans to drive voters and monitors to the polls on Election Day.

This speaks to "passing the buck," in that Ds on this board often say Rs do the same thing Ds do. Not so. I remember early cries here in Oregon about Dem campaign yard signs being 'stolen.' I knew then that was going to be a Dem tactic. And sure enough, two Bush/Cheney yard signs were stolen from our neighbor's yard and our own yard!

Also, this message is relevant to the topic in that Wisconsin's flawed election has been the scene of buck-passing and ignoring by the FBI and Bush Admin for months.

Alan

http://www.timothygoddard.com/blog/index.php?p=815

Alan

Unbelievable! They are literally spinning themselves into a corner...

And here I thought they were better at chess...Oh well...

If the SC says the election wasn't run right, it gets fuzzy when assigning a remedy, but almost any decision that supports using any part of that ill-managed election fiasco is tainted. That's why a re-vote makes more sense. Ask the people for a second time who they want for Governor, and this time apply intense scrutiny to every part of the County election procedures.

The Dems are just beginning to bang the Legislative drum in hopes of somehow replacing a re-vote by the citizens with a partisan Legislative our-guy-won festival.

Huh?

Democrats are so confusing.

Makes you realize they can't be taken that seriously. They'll be arguing X today, and that Y is wrong. When X doesn't serve them, Y becomes all that is right in the world. People like that are never appeased and it doesn't work to try.

Just do the right thing. That just keeps coming back to me, whenever I face this kind of stuff.

Pursuant to current state law, Dino Rossi has filed in State Superior
Court to contest the election results. Should the State Superior Court
rule to have a new election, I will abide by their decision. I was
elected not only to represent the constituents of my district, but took
an oath to uphold U.S. Constitution, Federal law, the Washington State
Constitution and Washington State law. The court system will now
consider the evidence and decide if the election of Governor was done
appropriately. This is the election process set out by state law. Our
forefathers and mothers anticipated and made provision for challenges to
our election system. Now we will see the system at work.

Sent off to the Rossi folks just a bit ago.

President Truman was a Dem...and he was famous for a sign on his desk. Too bad today's Washington State dems don't want the buck to stop anywhere near them.

If the courts can't do it (which remains to be seen) and the legislature won't do it (which is already proven), then there is only one thing left: let the people do it.

However, he did stand up in session and gave a very eloquent speech stating that the contested election was a matter for the courts and he'd could live with whatever is decided in court.

Now, of course, Senator Kline's party is arguing that contesting an election is ACTUALLY a matter for the legislature. Thus creating a Catch 22 for Rossi and his supporters. I suspect that Senator Kline knew this was coming, so decided against responding to e-mails about the issue.

I don't agree with much that Senator Kline stands for (except discontinuing the idiot "War on Drugs"), but I've always respected the fact that he returned my e-mails and was willing to debate.

I am loosing a little bit of respect for him now. In fact, this is the dilemma for all Democrats in office. They are loosing credibility the longer GreGore is illegitimately in office. She is spending the entire party's political capital and I bet they don't much appreciate it at this point.

"...And also as allowed by state law, that result is now being contested by the State Republican Party in Superior Court in Chelan County. If the final court ruling is that the election must be set aside and another election is needed, I will be among those legislators who will accept the challenge to do what it takes for that to happen."

The best the SC can do is force the legislature to determine the contest on its merits. This is more than what they did. But the Democrats are right, the state constitution requires the legislature to make this determination.

The bigger problem I see would be if the legislature orders a revote but Ms. Gregoire fights it on the grounds that--by certifying her election--the legislature had already made its decision and that it had no right to revisit the issue. This would give a handy out to the Democrats in the legislature, but would cause Ms. Gregoire to become so extremely unpopular that she might be well-advised to leave the state.

In my last email to him I pointed out that there was a fair amount of turn around on his part as well as the Dems in congress.

SURPRISE!!! haven't heard a word regarding that email.

You wrote "The best the SC can do is force the legislature to determine the contest on its merits. This is more than what they did. But the Democrats are right, the state constitution requires the legislature to make this determination."

While it may be what our constitution states, the legislature relinquished the right to 'vote' on this when they passed it on (in writing and verbally on camera) to the Judicial branch. My rep Tami Green replied back to me...

"It is the Court's responsibility to determine if an election is valid when contested, and it would be an alarming violation of our Constitutional separation of powers for the Legislature to intervene in such a decision.

I took an Oath of Office yesterday to uphold the laws and Constitution of the State of Washington; I take that oath very seriously. The only
responsible course of action for me as an elected official is to let the Courts decide this issue."

We put 3 branches in our government for 'checks and balances' (remember your history books?). The Legislative branch said "we think the election results are good enough"! That decision was appealed and another branch (the Judicial) now has the job of making sure that the Legislative branch actually made the correct decision. By their own admission (numerous emails and King 5 video segments) it was not the Legislative branch's job to determine if the election results were valid, that job belongs to and in the courts. Now they are going back on their own words (further showing that they can't be trusted and shooting themselves in their own feet) and telling the courts, (not asking mind you) that they (the Legislative branch) are the only constitutionally recognized branch of government that can make this decision. Seems to me someone (or lots of someones) were caught with their hands in the cookie jar. Or maybe better said, you can't have your cake and eat it too...(unless some KC ballot counting machines are involved...)

Cid

I agree that this sounds like the 'Rats are desperate. If the election is voided, will Gregoire's short term in office also be voided? Seems to me that it must. Thus, any bills she signs into law are nullified. Anyone know the answer to this?

It does appear that any action by CG would be void. To be sure, there would be a fight over it and this too would go the SC. But an ivalid election means the person should have never been in office.

The argument uses the legislature's refusal to decide the contested election before issuing the certificate of election to Gregoire as a reason to declare her election void -- thereby creating a vacancy in the office of governor.

I am interested in hearing what others think of the argument:

http://crokersack.blogspot.com/2005/01/vacancy-in-governors-office-could-be.html

And, if anyone has a pipeline to the GOP litigation team, it sure would be nice if they would take a look at the argument.

If it were successful, it would remove Gregoire from office until a new governor is elected to fill the vacancy in the general election this coming November.

Her first e-mail said she WOULDN'T get involved because there MIGHT BE a judicial contest.

Her second e-mail said she COULDN'T get involved because there was now a court contest, "as was Rossi's right to do."

Her letter to me, about 3 days ago, said the case is in court, right where it belongs, and she will abide by their decision.

She also included the law regarding certifica-tion, (heavily underlined by her), which said basically "the person who gets the most votes SHALL be certified."

Today I e-mailed her again and included laws (since she loves the law so much)on how to certify votes (shown on Evergreen Freedom Foundation

I also asked her:
1) Will you stick by your opinion that the court is the right place to decide, not the legislature?-

2)or will you now agree with your party that the legislature is the right place to decide?

3) If you do change your mind and agree that the law says it is, after all, your decision, then why, as a lawmaker, didn't you know that before?

3a) If you did know before that the law said it was your decision, why didn't you do what you knew was right?

Seems that instead of actually researching the topic, they took their "talking points" from the GreGore campaign and regurgitated it out to their constituants. Oops!

Now that the evidence of illegitimate votes is mounting into an avalanche, the back-pedaling has begun. Will it surprise anyone to hear another re-formulated strategy, soon to be sent out from the D.'s as to why this election should be decided by the legislature? It will be entertaining to see.

They both claimed it was not the Legislatures duty - but the courts duty to deal with this contest.....

[snippet from one email - Geoff Simpson-D]
"The issue is in the courts where it
belongs. I will live with whatever decision they make. Will you?"

snicker.......Oh yeah Geoff,....I WILL live with it! Will YOU?

"Appellant's most basic challenge is to the power of courts to inquire into the conduct of elections and order new elections to correct improprieties therein under RCW 29.04.030. The broad language and murky legislative history of this statute show it to be a statutory recognition of the power of superior courts, acting within their general equity jurisdiction, to intervene in cases of election fraud or wrongdoing. Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, § 6, unless it were 'by law vested exclusively in some other court.' We have upheld its exercise in quo warranto proceedings to contest election results brought completely independent of statutory remedies. ... This authority, whether based on a specific statute or the general equity jurisdiction, carries with it 'all the means to carry it into effect.' RCW 2.28.150. Where appropriate, these necessary and proper powers would include the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect." [Case citations omitted]

The Foulkes case would be on point regarding the courts' jurisdiction except for the fact that the case didn't involve a contested election of an officer listed in Article III, section 1 of the constitution. The question is: Since Article III, section 4 states a contested election of section 1 officers "shall be decided by the legislature," does the constitution limit the courts' inherent authority?

That question hasn't been answered, so this will be a case of first impression in Washington.

I argue that the supreme court can still exercise its equity jurisdiction through a quo warranto proceeding to determine if Gregoire is rightfully in office. The legislature had an opportunity to decide the contested election before issuing the certificate of election, but passed up the opportunity and arbitrarily and unconstitutionally issued the certificate.

Without that certificate, Gregoire would have failed to qualify for office.

The court might now be able to declare Gregoire's election void -- creating a vacancy in office that must be filled in this November's general election.

I wonder if I've construed the constitution correctly.

I agree this latest round of comments is
hypocritical. I would also suggest it would be
common sense that in an election this close that
included 3rd party candidates, there should be a
runoff.

but...

I do recall what Rossi people were saying prior
to hand recount ("concede for good of state" etc.)
And I read account after account from both dems
and repubs during recount, attesting to integrity
of the process.

And even then, I would agree a runoff is right
thing to do.

but...

Florida 2K: + 10k excluded from felon list
intentionally. And I read Blackwell's letter to
constituents thanking them for helping him prevent
"Kerry Disaster" and beg for money (this was
illegal). And I've read Blackwell's accounts
and reasons for stonewalling FOIA request that
Wa State counties provided to state's repub party
freely. And this doesn't even get into 14hr
lines and all the rest.

And we haven't even talked about Diebold/EMS yet.

If you guys would come back to earth and get
serious about instituting common sense standards
for an election process, rather than shill for
a bunch of crooks intent on fixing the same, you
may find there's a lot of reasonable "lib'rlz"
out there.

To this day I'm still shocked seeing WSJ/NReview
opeds and such accusing Dems/lib'rlz of not
getting over 2k and stating every recount showed
Bush winning, when in fact consortium conclusions
clearly said Gore won *every* scenario where *all*
the votes were counted.

For me, your plaintiff wails fall on deaf ears.

If the state constitution requires the legislature to do something, the legislature must do it. The state constitution is the supreme law. The legislature can't pass its duty onto the judiciary as this would be, um, unconstitutional.

Check out what I've put at my blog and let me know what you think:
http://crokersack.blogspot.com/2005/01/vacancy-in-governors-office-could-be.html

(And, no, I can't yet say that I understand for sure how to answer the questions you posted earlier on my blog entry about the meaning of "illegal votes." I'll get to it!)

Also, as far as the dem that posted earlier, what consortium are you talking about. The NY Times, the Miami Herald both paid for a complete hand recount after the election was over and both agreed that Bush won. Not exactly conservative bastions.

The only way to get a Gore win was not to count every legitimate vote, but rather to count every vote for Gore, including the ones that were not legal votes. You may not remember but the Gore team went to court to try to have 10,000 military ballots thrown out because they didn't have postmarks. They didn't seem to care that ships don't have postage machines and that mail from the Navy often doesn't get postmarked. Just another example of the Democrat party only wanting every "Democrat" vote counted versus every "legal" vote counted.

Every time you write something, I recognize it as the most likely outcome. You predicted precisely what the Democrats in the legislature would do. You are not a cheerleader for Rossi (this site) or for Gregoire (the karma site). You fairly interpret the law.

In short, I have accepted your analysis as my own.

Regarding the contest on misconduct, I think the King County election administrators have already given the facts to Rossi's camp. They have admitted their own misconduct. It just doesn't appear to me that all the wrangling about illegal votes (and whether/how to allocate them) matters when the contest is based on misconduct.

The legislature passes laws, which are enforced by the executive and then interpreted and tried by the courts, as their main duty. The one statement in the constitution about contesting an executive election really does not change this.

Yes, it is being argued that only the legislature can try contested executive elections, but I doubt that this will happen. It appears only to be a delay tactic by the D's. As it becomes more and more apparent that there are enough illegal votes (by identifiable people) and invalid votes (actually illegal also – voterless ballots and ballotless voters) that the result is in question the D’s must turn other means to protect their governor.

The question of venue and remedy are their first line of defense. The problem is that no matter the venue it will not change the facts. Yes, a democratic legislature would be inclined not to change the election and the courts could rule against Rossi. But the facts are going to make it difficult – all of these people are elected and blatantly going against the facts and public opinion could cost many of them their office in 2006.

As to remedy, Rossi has asked for a re-vote, nowhere is this endorsed or for that matter forbidden. If the tier’s decide that this not legal they can void the election and wait until November for a new election. This too would be had for the public to swallow, so I think the re-vote will be approved.

Regarding court jurisdiction in light of Article 3 of constitution.

Article 3 provides that contested elections for executive officers “shall be decided by the legislature in such manner as shall be determined by law”. I would construe the phrase “such manner as shall be determined by law” to be RCW Chapter 29a.68 enacted by the legislature.

Becker v County of Pierce, 126 Wn.2d 11 related to an attempt to contest the election of Brian Sontag as State Auditor. Jurisdiction of the courts was not an issue.

That quote used to confuse me a little. I think it was originally stated as: "You can't eat your cake and (still) have it too." As it would be consumed, gone, finis.

For the Demo legislature, you cannot give the cake away to the courts, and still have it. However, you might want it back, which is apparently what the Demos want. Maybe it wasn't a cake after all, but a political hot potato. Maybe they think it has cooled off some, let us hope not.

Doublespeak is alive and well in Demoland. Sure glad it was such a model election that we need election reform.

Calvin A. wrote:

You may not remember but the Gore team went to court to try to have 10,000 military ballots thrown out because they didn't have postmarks. They didn't seem to care that ships don't have postage machines and that mail from the Navy often doesn't get postmarked. Just another example of the Democrat party only wanting every "Democrat" vote counted versus every "legal" vote counted

Here we go again.

First, let me (once again) state my qualifications for refuting this statement. Retired Navy Chief Petty Officer, over 20 years active service, over 14 years onboard combatant ships. On one of those ships, I was the Leading Petty Officer for Admin Division, which included the Postal Clerks. I know something of what I say.

Navy mail gets postmarked. Ship's Post Offices have postmarks. Any Postal Clerk that did not postmark a ballot (even when a stamp was not required) would be busted for dereliction of duty and put to work chipping paint under close supervision. You are much more likely to get unpostmarked mail through your local post office than from a Navy ship.

Military Postal Clerks are careful and professional. They know that many states require a postmark for the ballot to be valid. These people also handle classified material. They are very good at their jobs.

This number of "unpostmarked ballots from Navy ships" in the Florida election keeps growing. For there to be 10,000 unpostmarked Navy absentee ballots in Florida alone, most of the Postal Clerks in the Navy would have to have been incompetent or derelict in their duties.

Additionally, their supervisors and officers would have had to be derelict, all the way up to their Commanding Officers. The inspectors (both USPS and Navy) would have had to be incompetent.

This "urban legend" keeps floating around about how the evil Democrats don't want military ballots to be counted. Frankly, if 10,000 unpostmarked ballots showed up, it would simply be irrefutable evidence of fraud.

Being retired Navy, I agree that military personnel have a right to have their votes counted.

But I very much resent the self-serving claims that have been made that my fellow Sailors were either too stupid or incompetent to do their jobs. You claim to respect the military, yet insult us when it serves your purpose.

NCC(AW) John Barelli, USN (RET)

I agree that the Becker opinion doesn't seem to offer any useful case law for the current situation.

As for the meaning of the phrase "shall be decided by the legislature in such manner as shall be determined by law," I construe that language the way I do any English.

This isn't a perfect analogy, but consider the situation in major league baseball. Suppose the league were set up with a constitutional form of "government." If the constitution said that "the homeplate umpire shall decide balls and strikes for all pitched balls not hit or swung at by the batter in such manner as shall be determined by league rules," most people would understand who is going to make the calls -- and would look to the rules to see what is a "strike." The rules would define the strike zone, but they wouldn't place the decision in the hands of the first-base umpire.

I read the state constitution as telling us which branch of government is authorized to decide a contested election in the case of Article III, section 1 officers. The end of that sentence tells us by what method the legislature must make the decision -- according to law, rather than according to their partisan preferences.

Just as the league rules could define the strike zone but not change the person who calls balls and strikes, the state election laws could define the procedure for bringing the contest to the legislature and the standards by which the legislature would decide it. But, the statutes couldn't change the fact that the authority to decide rests with the legislature.

Now that the legislature has changed the circumstances by issuing the certificate of election to Gregoire, I think the judicial branch's equity jurisdiction -- which is also stated in the constitution -- can take over and allow for a judicial "quo warranto" determination whether Gregoire is rightfully in office.

It would obviously have been better if previous legislatures had enacted laws which implemented the constitution's direction that they decide such a contested election, but they didn't.

For example, the constitution authorizes the legislature to determine when the term of office of the governor begins. The legislature could have used that authority to provide for a delay of the time at which the "regularly elected" governor must "qualify" for office to avoid creating a "vacancy" in the office when there is a contested election. (When there is a vacancy, the office devolves to the person regularly elected to be the new lieutenant governor.) That would have allowed for an orderly decision of the contested election by the legislature followed by issuing a certificate of election -- or perhaps even a decision by the legislature that the election was so messed up that the new governor would have to be elected the following November.

The legislature could even enact laws which assign to the courts the job of developing the evidence upon which a decision could be made, with a requirement that the courts provide a report to the legislature for it to use in deciding the contested election.

But I don't believe the legislature could simply refuse to decide the contested election before declaring a winner.

When I read Article III, section 4, I see three situations that it contemplates:

(1) There is a candidate who got the most votes in the election returns certified by the Secretary of State, and the election isn't contested. The voters have made their choice, so the legislature must declare that candidate the winner.

(2) There is a tie vote, so the voters have not made a choice. The legislature must then choose the new governor by a majority vote of both houses meeting in a joint session, which means they must exercise their own judgment about who ought to be governor -- and they can then freely follow their partisan preferences.

(3) There is an apparent winner according to the election returns, but the election is contested. The voters have apparently made a choice, so the legislators cannot simply follow their own preferences. They must instead apply the law and determine what the legitimate choice of the voters is.

The third situation is what the legislature faced, but they refused to determine the facts and apply the law. Instead, they went ahead and certified Gregoire as the winner.

I don't think the phrase "in such manner as shall be determined by law" allows the legislature to change the meaning of "shall be decided by the legislature" when there is a contested election.

By the way, I also don't think the legislature can constitutionally avoid choosing the new governor by a majority vote of both houses in joint session when there's a tie. But they have tried to nullify that part of the constitution as well. Look at RCW 29A.60.221, which says that a tie vote shall be decided by drawing lots. My regard for the people who enacted the election laws dropped to a new low when I came across that law.

Yes, leaving the "staff pukes" behind us was always one of the high points. ;-) It got you folks out of our hair so we could get some work done. Now, if only we didn't have to leave our families back there too.

Every time I hear that story, the hairs on the back of my neck go up. Most of the people telling it don't realize that they are, in essence, calling us a bunch of morons that cannot manage to read the voting rules.

Beautiful.

// beg quote
Also, as far as the dem that posted earlier, what consortium are you talking about. The NY Times, the Miami Herald both paid for a complete hand recount after the election was over and both agreed that Bush won. Not exactly conservative bastions.

The only way to get a Gore win was not to count every legitimate vote, but rather to count every vote for Gore, including the ones that were not legal votes.
// end quote

Nope.

follow links to AP "clarification": 9/11/02
>http://www.fair.org/activism/ap-florida-update.html

// beg quote
In an Aug. 25 story on former Secretary of State Katherine Harris' upcoming book, The Associated Press reported that some inspections by news organizations of uncounted Florida ballots in the 2000 presidential race showed George W. Bush winning more votes than Al Gore.

The story should also have noted that some scenarios showed Gore coming out ahead. For example, a vote-by-vote review of untallied ballots by The Associated Press and seven other news organizations found Bush would have narrowly prevailed in the partial recounts sought by Gore, but that Gore would have finished ahead by the barest of margins had he pursued and gained a complete statewide recount.
// end quote

Note this was issued +- 18 mos after consortium
result 1st published. The "correction" was
clearly evident from Consortium's own results,
which were published and available (still are)
at the time.

Consortium specifically stated that "even under
most conservative interpretation" of ballots,
Gore won in every scenario where *all* votes
are counted. And this, with Gore losing 10k
plus Butterfly ballots, not to mention 12k+ voter
purge.

This correction was published deep inside main
sections of only a few national papers. WSJ OpEd
still mis-represents it frequently, and never
corrected.

And as was widely linked, W's white house was
armtwisting editors to stay away from this during
a "time of war" so as not to undercut the
"president's" authority.

too bad for that. :(

// beg quote
You may not remember but the Gore
team went to court to try to have 10,000 military ballots thrown out because they didn't have
postmarks.
// end quote

No, they didn't. It's a favorite rw red meat
claim, but it's false. Do you have reliable
link?

// beg quote
They didn't seem to care that ships don't have
postage machines and that mail from the Navy
often doesn't get postmarked.
// end quote

I suppose that's one way to say it: I'd say that
the votes didn't arrive on time according to
Florida law. Regardless, both Gore/Lieberman
both said publicly they would not contest 'em,
and the didn't.

Bush lawyers, on the other hand...

// beg quote
Just another example of the Democrat party only
wanting every "Democrat" vote counted versus
every "legal" vote counted.
// end quote

Repub lawyers argued for accepting these late
ballots in Repub counties, and against accepting
'em in dem counties. The got repub congressional
leaders to (illegally) release email contacts for
overseas GI's, and prodded 'em to lobby on this.

To this day, at least 13 repub counties never
did auto-machine recounts as consequence of .5%
differential, as Florida law mandated.

Several of Bush's legal "players" in that event
have written on the subject, proudly explaining
their successful stategy to "run out the clock",
and SCOTUS fully complied by remanding Florida
supe's decision back to them 2 weeks prior to
"clock running out". It's rather amusing to see
you guys parsing niceties of Wa law, while in
Florida's case W's lawyers thwarted it. Florida
supes decision still on their site, and just as
some here have looked through detail of current
Rossi situation, so I (and many others) did back
then: Florida supe's had it *exactly* right
according to laws on the books.

And compared to '04 Ohio, Wa process is squeaky
clean.

Not to mention Bush lawyers quitely arguing in New
Mexico in 2k that hand recounts were the "only
reasonable" way to determine winner.

so in response to Micajah's snarly...
// beg quote
DM, did you say something? I can hardly hear you. Maybe there's an epidemic of deafness going around.
// end quote

my previously expressed sentiment stands.

Dont let them fool you......... The democrats have been lying for a long time.....but this time they will get caught in the web they have woven!!!

If the legislature get their hands on this case, they will face the wrath of a majority of angry voters in 2006 and alot of the ones who vote "nah" on the revote will be looking for new jobs soon thereafter. In the long term chess game - I'd say that the Demoncats are in check, heading for a checkmate.

That is less satisfying than a revote, but on the other hand, delayed gratification often leads to bigger and better things.

For people who want to re-examine the 2000 presidential election rather than consider what to do about the 2004 Washington gubernatorial election, I recommend the paper noted below.

It is ironic: What Gore tried to get from the courts would probably have lost him the election, if the votes were counted objectively and precisely. Only a statewide recount, rather than a recount in selected Democratic Party strongholds, might have resulted in a Gore victory.

The emphasis belongs on the word "might," because, as Keating points out, the consortium's methods were more precise and standardized than the hand recount methods which would actually have been used.

Gore's belief that a selective recount was the likeliest way to win might have been correct, if he had been able to benefit from mistakes or biases in the manual recount and interpretation of voter intent. But if there had been one standard applied in an unbiased manner, Gore would have lost in his desired partial recount.

Here it is, for you history buffs (with my added emphasis in the first paragraph using bold print):

Paper prepared for presentation at the annual meeting of the American Political Science Association, Boston, August 2002.

Democracy Counts
The Media Consortium Florida Ballot Project
Dan Keating
The Washington Post

pp. 7-8 of “pdf” file:

http://www.aei.org/docLib/20040526_KeatingPaper.pdf

Candidate Outcomes

When uncounted ballots were reviewed for potential votes, two critical findings emerged: The recount outcome did not hinge on whether dimples or other incomplete marks were counted as votes. And, because of misjudgments about what was likely on the ballots, both candidates pursued strategies that were diametrically opposite to their best interests during the recount. Any discussion of recount outcomes must note that the media consortium ballot analysis used impartial, multiple reviews of ballots and computerized application of standards, none of which would have happened in an actual hand recount. For that reason, the ballot review is a best approximation of what was on the ballots, but not a firm prediction of what would have happened in a recount.

Rather than dimples or not-dimples, the deciding factor in the recount was inclusion of all ballots or only a subset of ballots. And the deciding line was very simple – if all of the ballots were counted there were enough potential Al Gore votes to give him a victory, but any smaller subset of ballots would retain or even enlarge George W. Bush’s margin.

Oh, and then get ready for pandemonium when it's time to re-register for a RE-VOTE.

// beg quote

Rather than dimples or not-dimples, the deciding factor in the recount
was inclusion of all ballots or only a subset of ballots. And the deciding
line was very simple – if all of the ballots were counted there were enough
potential Al Gore votes to give him a victory, but any smaller subset of
ballots would retain or even enlarge George W. Bush’s margin.

// end quote

pretty close... (I think that's what I said. :) )

As with published Consortium "headlines" prior to AP "correction",
your WP link is fairly accurate, but summarizes innacurately and
leaves false impression on several counts.

As consortium stated, they had very diverse group judging ballot
review from both sides of the aisle: in their final statement they
made this point and explicitly said they believed their conclusions
to be objective, well reviewed and spot on. WP link leaves impression
this was somewhat arbitrary. Further, consortium categorized quality
of impression for *each* ballot, and their tallies were represented
under each category.

Further, WP link omits notice that, included in consortium review was
*all* late overseas ballots given to GWB, many of those won in court
proceedings argued by W's lawyers. NYT did 2 part expose on this
process:
http://query.nytimes.com/gst/abstract.html?res=FA0D11F9385F0C768DDDAE0894D9404482
or http://shorl.com/fonidedystygi

(now in "pay for" archives, but link has intro
that communicates the idea. I have original if
you want it).

Nevertheless, even intro availble from NYT link entirely contraverts
Calvin's claim (Gore fought 10k military ballots).
Bush team argued as I said: accept 'em in repub counties, do not
accept in dem counties.

AFAIC, fact (as accurately described in your link) that both guys
ultimately argued against their respective interests is irrelevant:
what riles me to this day...

- Gore's initial request was fully within Florida law, but was never
executed. And as mentioned, even mandated auto machine recounts
were not done. This is inexusable.

The arguments of "standards" was every bit the diversion you guys
argue here (dem reps claims re: "legislature" vs "courts") and
more. F:ex, there were hand recounts involving hanging chads
with virtually exact same standard in Texas while W' was gov,
and they went smooth. And W' signed the law approving 'em!!!!
And as mentioned, W's lawyers argued for hand recounts under exact
same standards in NM 2k.

- Beyond that, (again my opinion): who's responsability is it to
execute an honest count? The candidate, or the state (county/
city/etc.)? AFAIC, the answer is clear.

The state of Florida in 2k decidedly not only did not follow it's
own law, it both broke and thwarted it.

Ohio this time was about the same.

(I'll spare re-parsing rest of that thing)

AFAIC, there is no comparison to Wa's process and Florida 2k: Wa
followed state law, Florida did not follow theirs. Wa Sec of State
acted honestly even amist pressure from state GOP, Harris did not.

As upset as some of you here are, I wonder where your temp would be
if Wa. Sec of State was a dem who headed "Gregoire for Gov" campaign
(aka Harris headed state GWB for prez, Blackwell same in Ohio)
or if a deciding court issued ruling that Gregoire's "rights" would
be violated by overturning/re-doing election (as SCOTUS did for
W'), or all the rest. And regardless of dem Wa. lawmaker's hypocracy
(I agree) in the current flip/flop (the courts! the legislature), the
process to this point has been close to exemplary and a far cry better
than 2k Florida, and current Ohio. And lest we forget, Florida legislature
openly threatened to seize Florida's electors if Florida Supreme court
ordered a hand recount, and that in a venue w/far greater evidence of
error than current Wa. situation.

So I repeat: quite obviously, there are problems w/voting procedures in
US of A: some places more than others. That people claiming high moral
ground will not even acknowledge discrepencies I list (and many more)
in 2k Florida alone, rather (in my experience) they they (hard rw'ers)
misrepresent them. Then suggestion that it is in everyone's interest
that a reliable, accountable process be established is scorned.

And then I see language used here (and other rw media: remember "sore
loserman"?) I become increasingly pessimistic the r/l divide is nearing
(if not already there) an irreconcilable split leading who knows where.
I meandered over an took a look at your blog (excuse me if
not yours) : you use term: "pretender" for Gregoire, and refer to her
certification as unconstitutional.

With all due respect, both those are huge stretch: recount here followed
the law, and "unconstitutional" is certainly something you guys may
hope for (and if enough bad ballots are uncovered may prove true), but
it was not known when you said it, and still is quite unlikely.

And compared to Florida 2k, Wa. looks like gold.

So I repeat: things need fixing... some places more than others.
As long as this nasty shit continues, things going to get worse.

Clearly, it is possible to establish a reliable election process:
Europe does so (and mostly on top notch Open Source Soft/hard ware),
Brazil has (arguably) best voting equipment on planet, and even
Ukraine just proved it's judiciary reliable when confronting
malfeasance (even state secret police refused to aide incumbent,
and last 2 weeks of protests same notified protesters of state's
intent to use military to disrupt 'em).

We use closed machines, no audit trail, and only anonymous manufacturer
employees are able to access machines both in preparation for, and
*during* election. There may be demand for such machines in
Uzbequistan and Sadam's Iraq, but not too good a show case here.

It is in everyone's interest to establish a reliable system, and
enforce rules. C'mon guys. Wa situation far cry from malfeascance,
a too close election w/at best a very small error count. I've seen
nothing that suggest anything else.

I don't pop over to these (seemingly) rw thingies very often: but
I sure do in all sincerity hope that the red meat stuff will sometime
soon be replaced by more level heads, and realize that there is a
meeting place where integrity is built in and fought for in election
proceedings, and it is in *everyones* interest to establish that.

Ignoring stuff I listed in last 2 (not counting Georgia mid-term
in '02) is not going to get people there. As I said, you'd find
a *lot* of us dreaded lwl's real reasonable when presented with
sincere efforts to establish such things.

http://seattletimes.nwsource.com/html/localnews/2002159814_felons25m.html

Two weeks ago, I took an oath of office to uphold the laws of our state.
In that capacity I voted to accept the election certification of the
Secretary of State - a Republican - and the recommendation of all 39
county auditors in the state.

This was the closest statewide election in Washington's history, and our
process was tested as never before. The goal of our election system is
to make sure that every legitimate vote is counted accurately, and if
errors are made, that they are found and corrected. For that purpose,
state law allows a maximum of two recounts and gives county auditors
leeway in recounting new ballots. Dino Rossi has decided to pursue the
matter in court rather than persuade the Legislature of the validity of
his case. The final decision resides with the courts, just as it did in
the 2000 presidential election, and I will abide by their decision.

Thank you for contacting me with your thoughts. You are certainly not
alone in your frustration.

John McCoy

Two weeks ago, I took an oath of office to uphold the laws of our state.
In that capacity I voted to accept the election certification of the
Secretary of State - a Republican - and the recommendation of all 39
county auditors in the state.

This was the closest statewide election in Washington's history, and our
process was tested as never before. The goal of our election system is
to make sure that every legitimate vote is counted accurately, and if
errors are made, that they are found and corrected. For that purpose,
state law allows a maximum of two recounts and gives county auditors
leeway in recounting new ballots. Dino Rossi has decided to pursue the
matter in court rather than persuade the Legislature of the validity of
his case. The final decision resides with the courts, just as it did in
the 2000 presidential election, and I will abide by their decision.

Thank you for contacting me with your thoughts. You are certainly not
alone in your frustration.

John McCoy

http://seattletimes.nwsource.com/html/localnews/2002159814_felons25m.html

This part of the letter from Rep. McCoy is really cute:

Dino Rossi has decided to pursue the matter in court rather than persuade the Legislature of the validity of his case. The final decision resides with the courts, just as it did in the 2000 presidential election, and I will abide by their decision.

The Democrats in the House kept the question of what to do with the contested election off the floor. Not until the joint session did the House Democrats have to allow it to be discussed.

The Senators debated twice -- once in the Senate and once in the joint session -- as the legislature debated and then decided what to do about the contested election.

But, all that is supposed to disappear down the memory hole: Dino Rossi chose to go to court rather than to the legislature, so we legislators aren't at fault in any way.

Yeah sure. RCW 29A.68.020 states: "All election contests must proceed under *RCW 29A.68.010." [The asterisk takes you to a note that explains that the legislature carelessly repealed -.010 and enacted it later in the same session as -.011, but never noticed in their carelessness that -.020 still says -.010. Close enough for legislative work -- they don't follow the rules anyway.)

RCW 29A.68.011 puts all contests in court -- and not one contest at all in the legislature.

So, Rossi and the other petitioners went to the courts, just as the law provides.

There is NOT ONE statute providing any method or procedure at all for Rossi and the petitioners to bring a contested election to the legislature. (They had to wing it last week in order to "cover all bases.")

Yet, McCoy and the other Democrats in the legislature would have us believe that the issue of the contested election was never brought to the attention of the legislature -- that they debated for two hours in the joint session on January 11th about the best way to bake cookies, not the motion brought by the Republicans to delay the issuance of a certificate of election in the governor's race for two weeks to allow time for the facts to develop a little more and thereby allow for a more reasoned decision by the legislature.

No, the Democrats went with an arbitrary and unconstitutional decision and issued the certificate of election to Gregoire.

Now, they really wish we would all forget what they did.

I know what you did on January 11, McCoy.

Then you are really not paying attention.

You bring up an interesting point. Rossi sincerely wanted to contest the election. According to the state constitution, the legislature is to make a determination of a contest on its merits. How can Rossi force the legislature to follow the constitution and make such a determination?

Even if legislative Republicans didn't do what they were supposed to, it doesn't mean that Rossi lost his right to have the legislature make a determination of the contest on the merits. Rossi and legislative Republicans are different people. They may have different interests, and Rossi has the constitution to back him up.

May I add another piece to your entertaining analogy? Suppose I look up the rules that define the strike zone. There is a definition for a strike zone that expressly applies to regular season games (elections not covered under Article III of the constitution).

What about the World Series (elections for executive positions under Article III)? Is the strike zone the same? After all, the rules specifically define the strike zone for regular season games.

A reasonable person might conclude the strike zone in the World Series is the same, but the rule only defines it for regular season games. The league (legislature) should have made the rules clear for World Series games (executive positions under Article III), but they didn't.

// beg quote
JDM:
"Wa situation far cry from malfeascance,
a too close election w/at best a very small error count.
I've seen nothing that suggest anything else. "

Then you are really not paying attention.
// end quote

I've been paying very close attention.

State GOP tried to eliminate counting of the King County absentee ballots
from hand recount. By every measure of state law, they were legal.
State GOP posted all kinds of stuff on their web site referring to
these ballots as "stealing election", "manufacturing votes" etc, all
false. As was their claims of exclusion of GI oversea ballots, and
as was their press conferences on same subject, and as was claims of
late post marks for mailing these ballots.

They then began campaign they described as playing under these "new
rules", as though a loophole had been exploited in King County. They
dug up GI's who's ballots arrive late, and just as W' did in 2k Florida,
made that red/white/blue appeal. And on it goes.

King Co. ballots were under seal, as required by State law. When state GOP
began contesting this, I dug up state statutes (I'm new Wa. resident as
of Sept/04) after lower court decision to stay inclusion of these ballots.
Not only is there nothing in statutes to exclude 'em, it's clear that
deliberate language makes room for such situations, and those ballots
absolutely are legal, and by the book. AFAIC, this is as it should be:
which ever way things may turn, if voter cast a legal vote that was
not handled properly, it's state's responsability to get it right.

http://www.freepress.org/departments/display/19/2005/1102

// beg quote
On Jan 19, Ohio's Republican Attorney General has moved for sanctions against
the four attorneys who sued George W. Bush et. al. in an attempt to
investigate the Buckeye State's bitterly contested November 2 election.

Robert Fitrakis, Susan Truitt, Cliff Arnebeck and Peter Peckarsky were named
by Attorney General James Petro in a filing with the Ohio Supreme Court. Petro
charges the November Moss v Bush and Moss v. Moyer filings by the Election
Protection legal team were "frivolous." Petro is demanding court sanctions
and fines.

"Instead of evidence, contesters offered only theory, conjecture, hypothesis and
invective," the Attorney General's January 18th memo about the suit said.
"A contest proceeding is not a toy for idle hands. It is not to be used
to make a political point, or to be used as a discovery tool, or be used
to inconvenience or harass public officials, or to be used as a publicity gimmick."
// end quote

So repub leaders in Ohio using their office to ignore procedures outlined
in state's law and put forth in suit mentioned above, and now going after
those filing the suit. This would be same thing as Wa. State Atty Gen
going after you guys for "making trouble" with all this "conjecture".
And it's just a fact: there is no comparison between integrity of Wa's
process and Ohio's... none. There's multiple clear, deliberate infractions
in Ohio, and repubs covering their butts. Nothing even close here.

It's nauseating.

If none of these things sound like a problem to you, then you cannot honestly claim to care about the rule of law.

Our state's framers were populists who distrusted too much power in one place. They didn't want the Legislature to manhandle the other two branches of government, so they took power away from the House and Senate and gave it to the secretary of state and our courts.
Dino Rossi is filing a lawsuit and taking his case to the courts. That's the right decision for him.

Well, he seems to think that it was the desire of our "state's framers" to give the power to the SoS and courts... I'd like to know where he came up with that one... The constitution clearly states in Article III Section 4 that:

Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law.

The state legislature then, "by law" gave that power over to the courts. See RCW 29A.68.010.

// beg quote
JDM:
Felons voted illegally.
There are voterless ballots.
There are votes from dead people.
KC admits to mixing in 348 provisional ballots (illegally) with the regular
ballots so that they cannot be distinguished.
// End quote

Yes, latest is felons: 126 I believe.
As I said repeatedly, I fully acknowledge problems. However, I see
this blog's author today giving link in his post:

// beg quote
I was beginning to worry about all those felon voters, Dead voters,
Double voters, Private mailbox and storage locker voters, 3,000 voterless
ballots and 1,000 ballotless voter
// end quote

*Every* single one of these issues has been investigated by counties
across the state. Most of the "dead voters" have been explained (as I
assume you know). Same w/double voters. I'm not up to date on "private
mailbox" or "storage lockers": if the latter refers to KC storage of
absentee ballots, it's a disengenous claim (red meat, AFAIC).

I am aware of *no* requests/filings to any Wa. county that has not
been responded to, and most of these from dem county officials. I've
not seen a single incident in Wa. process of coverup, or unwillingness
to investigate mistakes/errors etc. I have seen
many incidents where state GOP claims were investigated
and cleared.

// beg quote
If none of these things sound like a problem to you, then you cannot honestly
claim to care about the rule of law.
Posted by Bostonian at January 25, 2005 10:27 AM
// End quote

So again, I point over to Ohio: there has been *no* response to legal
requests, FOIA and otherwise, and malfeasance there is not just much
wider: the illegal handling of ballots is on *video tape*, not to
mention all the rest. And Florida 2k,...

Most of my life, I was as likely to vote repub as dem: this all changed
in 2k. You guys jump and scream at dem/lib'rl red meat bating stuff here,
yet wholeheartedly refuse to acknowledge any of this stuff if it involves
some of "your guys".

There is no comparison between Wa's processes and others I've mentioned,
by any objective measure. RW invocations of "rule of law" tend to
focus on myopic self interests in my experience: this episode takes
it to the absurd.

US $ going to shit: even if you don't follow this stuff, just cursory
look couple times a week @ yahoo.business summaries paint clear enough
picture. Move away from dollar both as trusted (eg. other govs buying
US treasuries/financing US debt) is accellerating. It's not a myth or
subject to one's political whims: it's hard numbers. F:ex:
http://news.ft.com/cms/s/9ef63678-6d7d-11d9-9b69-00000e2511c8.html
(typical of recent months: Economist has similar reports)

China's asserting muscle in oil markets in big way, w/$'s weakness
playing increasingly bigger roles:
http://www.americanintelligence.us/index.php?name=News&file=article&sid=2669

Hong Konk/ Tapei/ London econ reports, this has
been trending for nearly a year. The reason for
this is AFAIC Bush lies: Soc Security, WMD, Iraq
and whole host of other things. The wheels are coming off.

You guys raise a ruckus over people in position to handle mistakes
in Wa. election, who *have* been forthright in acknowldeging mistakes,
and have investigated 'em and reported findings openly. As I've said
repeatedly here, Ohio/Florida 2k not only did not acknowledge far worse,
most of 'em were not mistakes: they were deliberate.

I've spelled it out here several times, and other than Micajah's
rather frank acknowledgment of Florida recount (thanks), not a single
one of you acknowledge incongruencies in these processes.

Honestly, w/out trying to be insulting, I just do not fathom what you
guy's value base is. I see no commitment to "rule of law" at all.
Just the opposite, frankly. When/if I ever hear rw expressions to
establish solid, believable voting procedures *everywhere* in US,
you'll have my full attention. Don't seem to be there yet.

I'll drop this one here. Thanks.
Good luck w/your fight.

If illegal activity occurred in OH or in FL 2000, where are the court cases against the election officials or illegal voters?

In OH, we were treated to Barbara Boxer grandstanding before Congress. I interpret this to mean that there was nothing solid enough for a courtroom. Am I wrong? Can you provide links to ongoing legal action?

Or is it all just talk?

Thanks for your comments on my post. I need to clarify my comments.

I agree with your plain language construction of the phrase “shall be decided by the legislature in such manner as shall be determined by law”. The framers apparently contemplated that the Legislature would enact laws that govern the manner in which the Legislature adjudicates an executive office election contest. The problem is that the only election contest statute enacted was Chapter 29a.68. I believe that in doing so they delegated the process to the courts. If I am wrong then there remains an available remedy, as you point out, in equity.

The reason I brought up Becker was that an election contest issue pertaining to a state executive office was decided on the basis of the election contest statute. Sontag raised the issue on appeal whether Becker’s challenge was timely. In resolving that issue the court decided that Becker’s action was an election contest and, as such, was subject to RCW 29.04.030 (the predecessor to RCW 29a.68.011). In doing so, the Supreme Court implicitly confirmed that the statute applied to the state executive office being contested. No jurisdiction issue was raised. (Nor did Attorney General Gregoire raise the issue in her amicus brief.)

// beg quote
JDM, I'm not buying it. You talk a lot but provide no support for any of it.
If illegal activity occurred in OH or in FL 2000, where are the court cases
against the election officials or illegal voters?
// end quote

In florida, felon purge alone far exceeded anything currently going
on in Wa. State. Company hired by Jeb/Harris (yes, *Jeb* made
arrangements) specifically told them methods requested for determining
felon status were not going to work: Harris' office gave 'em go-ahead
anyway. AFAIC, this is common knowledge... articles/links all over.

If you honestly are not aware and care to investigate, send me private
mail and I'll provide links (no point continuing details of *that* here,
as it's not my purpose to resurrect whole thing, only to contrast. I have
reachable email in my profile.).

I already posted link to Bush Team's 2k Florida strategy on oversea
absentee ballots. It's pretty well documented. Same with machine
recounts that never happened: this was state *law*.

Elsewhere on this forum it seems there's consensus that Gregoire's
certification was "unconstitutional": 2k Florida's far exceeded
current Wa. situation: there was no legal mandate for Harris' claims
for early certification, nor was there legal basis for avoiding machine
recounts as she did. She executed early certification solely on claim
of "discretion" provided her office by law, entirely ignoring statutes
laying out procedures she ignored.

// beg quote
In OH, we were treated to Barbara Boxer grandstanding before Congress.
I interpret this to mean that there was nothing solid enough for a
courtroom. Am I wrong?
//

most definately wrong. Boxer's comments were almost entirely verbatem
quotes from Ohio officials. The 14 hr lines alone, I would think would
attract attention of someone so committed to "rule of law":

- Ohio's own pre-election survey's estimated # of machines
required in these districts.
- those estimates were not honored in deploying machines on Election
day.
- Blackwell made public statements asserting it was honest error, and
that Ohio did not have enough machines.
- Turned out they did have machines, and these machines were sitting
in wherehouses in districts they were needed, but they were not
deployed.

Distribution of machines by county here:
http://www.freepress.org/images/departments/machine_distribution.pdf

Beyond that, Ohio's *paid for* recounts were done illegally in a
number of ways. And again, Blackwell's *illegal* post election
fundraising letter... copy of it here:
http://www.bluelemur.com/index.php?p=528

Again, I can easily imagine comments here if similar situation
existed in Wa. right now.

// beg quote
Can you provide links to ongoing legal action?
Or is it all just talk?
// end quote

Cliff Arenback's lawsuit very detailed: judge for yourself.
Pretty good summary here:
http://www.freepress.org/departments/display/19/2004/1028

and entire archive at that site here:
http://www.freepress.org/departments/display/19

And yes, some of it is snark: majority of it is not.

I'd still like to hear your opinion on our black box voting
machines, as I've mentioned. I get impression as long as
they're *republican* black box machines, you're happy. :(

// beg quote
JDM, and by the way, all your talk about the economy,
Iraq, etc. is entirely off topic.
// end quote

ahhh...

I think that the Becker opinion doesn't offer anything useful, because the court specifically stated that it wasn't ruling on the constitutionality of the election contest statutes.

Here's where the text of the opinion can be read online:

http://www.mrsc.org/mc/courts/supreme/126wn2d/126wn2d0011.htm

While the lawsuit involved an election of an Article III, section 1 officer (the state auditor), the court stated that their sole job was to apply the statute to the facts of the case. And having done so, the court held that the statute provided no basis for granting relief to Becker. The online text doesn't seem to display page numbers, but here is the text that appears where the numbers for headnotes 2 through 4 appear:

[2-4] Our duty in this case is thus simply to interpret RCW 29.62.030, which all of the parties agree is the controlling statute. Unfortunately for Becker, the wording of that statute does not support her argument that then Pierce County Auditor Brian Sonntag was required to recuse from participating in the canvass of the returns in the 1992 primary election for the office of State Auditor. In our judgment, that statute provides only that the incumbent county auditor shall not participate in the canvass of primary or general election returns for "that office", the office of county auditor. It does not, as Becker asserts, apply whenever the incumbent county auditor is a candidate for any office.

Later in the opinion, the court stated specifically that the constitutionality of the statutes was not being raised as an issue:

[5] Moreover, Becker's argument that she has an independent right to maintain an election contest pursuant to the above-cited provisions of the state constitution defies a long-held position articulated by this court. Early this century we clearly established that the right to contest an election "rests solely upon, and is limited by, the provisions of the statute relative thereto". Quigley v. Phelps, 74 Wash. 73, 75, 132 P. 738 (1913) (interpreting Rem. & Ball. Code §§ 4941-4957). As we observe in the following section of this opinion, the Legislature has enacted statutes defining the right and means to contest the results of an election. Becker has not directly challenged the constitutionality of those statutes, and, consequently, her argument that the constitution creates an independent right of action here is wholly unpersuasive.

Since the court didn't decide the constitutionality of the statutes as applied to a contested election of an Article III, section 1 officer, the opinion provides no legal precedent for the conclusion that the legislature can avoid its responsibility to decide a contested election before issuing a certificate of election by delegating authority to the courts to decide a contested gubernatorial election -- and going right ahead and issuing the certificate while the contest is pending.

Despite the existence of the Becker case, the currently contested election will be a case of first impression in Washington. It will be the first time the courts have had to confront the question whether the constitution means what it plainly says -- the contested election "shall be decided by the legislature."

The one part of the Becker opinion that indicates there may be a joker in the deck is this part from what I quoted above:

Moreover, Becker's argument that she has an independent right to maintain an election contest pursuant to the above-cited provisions of the state constitution defies a long-held position articulated by this court. Early this century we clearly established that the right to contest an election "rests solely upon, and is limited by, the provisions of the statute relative thereto". Quigley v. Phelps, 74 Wash. 73, 75, 132 P. 738 (1913) (interpreting Rem. & Ball. Code §§ 4941-4957).

To me, the part I put in bold print for emphasis begs the question. The question is whether the statute can delegate authority to the courts. Saying that the statute controls an election contest assumes that the answer is yes.

Note that in the Foulkes opinion, the court stated that the statute merely codified the court's inherent constitutional jurisdiction to decide a contested election when a county commissioner election was contested.

It appears that the Becker opinion misstated the law. Oddly, the Foulkes opinion was issued in 1975 and the Becker opinion occurred in 1995 -- yet the court in Becker seemed to ignore what the court in Foulkes had said. The court in the Becker case didn't even cite Foulkes. It appears that neither side mentioned the existence of the Foulkes opinion, and the court didn't learn of its existence from their own research.

Here's what the Foulkes opinion stated at pages 632-633 (footnotes omitted):

http://www.mrsc.org/mc/courts/supreme/085wn2d/085wn2d0629.htm#085wn2d0629

[1] Appellant's most basic challenge is to the power of courts to inquire into the conduct of elections and order new elections to correct improprieties therein under RCW 29.04.030.«2» The broad language and murky legislative history«3» of this statute show it to be a statutory recognition of the power of superior courts, acting within their general equity jurisdiction, to intervene in cases of election fraud or wrongdoing. Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, § 6, unless it were "by law vested exclusively in some other court." We have upheld its exercise in quo warranto proceedings to contest election results brought completely independent of statutory remedies. State ex rel. Morgan v. Aalgaard, 194 Wash. 574, 78 P.2d 596 (1938); State ex rel. Hott v. Hamilton, 118 Wash. 91, 202 P. 971 (1921); State ex rel. Hyland v. Peter, 21 Wash. 243, 57 P. 814 (1899); State ex rel. Blake v. Morris, 14 Wash. 262, 44 P. 266 (1896); cf. Hill v. Howell, 70 Wash. 603, 127 P. 211 (1912) (original mandamus jurisdiction of the Supreme Court invoked to test validity of election). This authority, whether based on a specific statute or the general equity jurisdiction, carries with it "all the means to carry it into effect." RCW 2.28.150. Where appropriate, these necessary and proper powers would include the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect.«4»

It's pretty obvious from the court's opinion in the Foulkes case that an election contest isn't based entirely on whatever the statute says.

I didn't see your question about black box voting, and I'm not a Republican anyway.

// beg quote
JDM, the Arnebeck case was dismissed.
// end quote

twice... and refiled twice. Reasons for this are whole 'nuther matter.

// beg quote
I thought you were referring to something ongoing. Guess not.
// End quote

Guess so.

// beg quote
I didn't see your question about black box voting, and I'm not a Republican anyway.
// end quote

you made statements about "rule of law": if you
have no idea what "black box" refers to, your
bad. I guess your sense of justice in voting
matters is less "rule of law" than "rules by
lawsuit". I gave you plenty of info to "bridge
the gap" if you were/are so inclined, and did so
at your request (eg. "I don't buy it").

Good luck w/your crusade.

You are correct that there was no constitutional challenge to any statute in Becker. Again, the reason I cited that case is that it shows that the Supreme Court believes that it has executive office election contest jurisdiction based on the contest statute.

The first paragraph quoted does not apply to the issue I cited. That paragraph speaks to a different section of the code, RCW 29.62.030. The applicable paragraphs are in part III which addressed an issue raised by Sontag on appeal:

“Sonntag has raised, for the first time on appeal, the issue of whether Becker's challenge was timely. Sonntag contends that Becker's action constitutes an election contest, which is governed by strict time limits. See RCW 29.04.030; RCW 29.65.010. Although our holding that RCW 29.62.030 did not prohibit Sonntag, as the Pierce County Auditor, from participating in the canvass of returns for State Auditor is dispositive of this appeal, we choose to resolve the timeliness issue as well, because it is significant and because "a statute not addressed below but pertinent to the substantive issues which were raised below may be considered for the first time on appeal".
***
“Becker's arguments and submissions do not support her contention that her action is not an election contest maintained under RCW 29.65.010. The relief sought by Becker is the same as would result from a successful election contest: the setting aside of the election. In addition, her complaint cites to RCW 29.65.055, .060, and .070, provisions of the election contest statute, as justification for her action to set aside the 1992 election and her request for "costs and disbursements in this action". Clerk's Papers, at 5. 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". We conclude, therefore, that Becker's action is an election contest, and as such, is subject to the time limitations set forth in RCW 29.04.030. See RCW 29.65.010 (final unnumbered paragraph).”

This unanimous opinion of the Supreme Court is positive affirmation that the contest statute applies to executive offices.

Further down he states that "It (a revote) would be unprecendente din both our state's history and even in our nation's history." Really Brendan? Even in our nation's history. Someone needs to let this guy know that there has been a revote in our nation's history. I'll pass this info. on to Rossi Headquarters.

You wrote...
//beg quote
King Co. ballots were under seal, as required by State law. When state GOP
began contesting this, I dug up state statutes (I'm new Wa. resident as
of Sept/04) after lower court decision to stay inclusion of these ballots.
Not only is there nothing in statutes to exclude 'em, it's clear that
deliberate language makes room for such situations, and those ballots
absolutely are legal, and by the book. AFAIC, this is as it should be:
which ever way things may turn, if voter cast a legal vote that was
not handled properly, it's state's responsability to get it right.
//end quote

Actually for the 3rd recount that is not true, and it is where most of us say that the law was broken. I pulled this from EFF who can say this much better than I can...

//beg quote
The law:

Canvassing; recounts and contesting an election (RCW 29A.60).
The court was in error by saying re-canvassing could occur. State law (RCW 29A.60.210) is specific: “Whenever the canvassing board finds that there is an apparent discrepancy or an inconsistency in the returns of a primary or election, the board may re-canvass the ballots or voting devices in any precincts of the county. The canvassing board shall conduct any necessary re-canvass activity on or before the last day to certify the primary or election and correct any error and document the correction of any error that it finds.”

Once the election is certified (this year, November 30), there is no more canvassing or re-canvassing. Contrary to Secretary of State Sam Reed’s claim there is no safety valve in state law for the canvassing board to correct errors. And re-canvassing cannot occur after certification. When certification occurs, the election is over unless there is a recount. If there is a recount, a different section of state law applies (RCW 29A.64).

Recounts (RCW 29A.64)
“‘Recount’ means the process of re-tabulating ballots and producing amended election returns based on that retabulation, even if the vote totals have not changed.”

Notice the word is retabulation—that means the votes had to be counted the first time. In state law there is no provision for canvassing or re-canvassing when a recount occurs. There is no safety valve for canvassing boards to correct errors. Any errors are to be dealt with if a challenge is filed under RCW 29A.64. The only role of the canvassing board is to open the sealed containers containing the ballots to be recounted. Only the ballots in the sealed containers are to be counted (RCW 29A.64.041). The court was in error when it said a re-canvass could occur on a recount. Essentially, by their flawed ruling, they turned the recount into a re-canvass.

Contesting (RCW 29A. 68)
RCW 29A. 68 establishes that the place for correction of errors in an election is before a court, where evidence must be presented and can be countered. The court has the authority to set aside an election if needed. Partisan county canvassing board were never meant to fill this role.
//end quote

Where's the *clear language* you refer to that says it's O.K. to recanvass during a 3rd recount.

If your going to quote the law, then you must live by it...

Cid

// beg quote

Canvassing; recounts and contesting an election (RCW 29A.60).
The court was in error by saying re-canvassing could occur. State law
(RCW 29A.60.210) is specific: “Whenever the canvassing board finds that
there is an apparent discrepancy or an inconsistency in the returns of
a primary or election, the board may re-canvass the ballots or voting
devices in any precincts of the county. The canvassing board shall conduct
any necessary re-canvass activity on or before the last day to certify
the primary or election and correct any error and document the correction
of any error that it finds.”

Once the election is certified (this year, November 30), there is no more
canvassing or re-canvassing. Contrary to Secretary of State Sam Reed’s
claim there is no safety valve in state law for the canvassing board to
correct errors. And re-canvassing cannot occur after certification. When
certification occurs, the election is over unless there is a recount.
If there is a recount, a different section of state law applies (RCW 29A.64).

Recounts (RCW 29A.64)
“‘Recount’ means the process of re-tabulating ballots and producing amended
election returns based on that retabulation, even if the vote totals
have not changed.”

Notice the word is retabulation—that means the votes had to be counted
the first time.
// end quote

ahhh yes, the "re-tabulate" definition popularized by GWB's 2k
lawyers. Do you have link that supports your definition?

Websters defines tabulate:
1 : to put into tabular form
2 : to count, record, or list systematically
I cannot get from your definition to that one.

BTW, checking Google I see whole bunch of links from 2k which quotes
repub lawyers *arguing* your definition, but nowhere citing it in
Florida (or other) law.

The congressional NATIONAL TASKFORCE ON ELECTION REFORM did have
something to say about this in '02. (note this was run by repubs)
There's a copy here:
http://regrec.co.la.ca.us/general/boardreports/pdfs/6-14-02-attachments.pdf

See Page 9, Section: Paper Audit Record
"... it is far more secure, efficient and accurate for the
tabulation systems to retabulate ("recount")"....

The quoted "recount" is in their text: I specifically recall it's
being put there in response to Florida, as I was paying close attention
to this at the time it was written.

Beyond that, aside from ambiguity of your definition, there are
additional statutes you omit and they were listed by Wa Supes
(SCOWS)
in their decision authorizing hand recount and inclusion of KC
absentee ballots. SCOWS decision here:
http://www.metrokc.gov/elections/news/2004_12_14.htm

and relevant law snipped from their decision:

// beg quote
In this context, a ballot is a physical or electronic record of
the choices of an individual voter, or the physical document on which
the voter's choices are to be recorded. RCW 29A.04.008(1)(c),(d).
Recount means the process of retabulating ballots and producing
amended election returns. RCW 29A.04.139 (emphasis added).
// end quote

29A.04.139 reads:

http://www.leg.wa.gov/RCW/index.cfm?section=29A.04.139&fuseaction=section

// beg quote
Recount" means the process of retabulating ballots and producing
amended election returns based on that retabulation, even if the vote
totals have not changed.

The procedure for recounts is set forth in RCW 29A.64.041, and
starts with the county canvassing board opening the sealed
containers containing the ballots to be recounted. See RCW
29A.60.110.
// end quote

note multiple circular references to retabulate > recount, going
both ways. The distinction in you definition is clearly not there,
IMO.

(29a.60.110 declares security/sealing procedures, which were met
by KC)

SCOWS continues:
// beg quote
Supreme Court Decision continued:

// beg quote
Thus, under Washington's statutory scheme, ballots are to
be "retabulated" only if they have been previously counted or
tallied, subject to the provisions of RCW 29A.60.210.
// end quote

and the statute cited above:

// beg quote
RCW 29A.60.210
Recanvass -- Generally.
Whenever the canvassing board finds that there is an apparent
discrepancy or an inconsistency in the returns of a primary or
election, the board may recanvass the ballots or voting devices in
any precincts of the county. The canvassing board shall conduct any
necessary recanvass activity on or before the last day to certify the
primary or election and correct any error and document the correction
of any error that it finds.
// end quote

So what does canvasing mean?

// beg quote
RCW 29A.04.013
Canvassing.

"Canvassing" means the process of examining ballots or groups of ballots,
subtotals, and cumulative totals in order to determine the official returns
of a primary or general election and includes the tabulation of any votes
that were not tabulated at the precinct or in a counting center on the day
of the primary or election.
// end quote

So we are back where we started.

// beg quote
Where's the *clear language* you refer to that says it's O.K. to
recanvass during a 3rd recount.
// end quote

Clear law I refer to was absentee ballots in question were sealed,
as law requires. There was no opportunity to alter that "vault".
(unlike Ohio, BTW, which has similar "sealed" provisions which
were repeatedly broken). The distinction you make in definition
of retabulation does not exist in state law. The recount provisions
clearly state (as quoted above) how things are to be handled and
provides relevant definitions.

http://josef-a-k.blogspot.com/2005/01/gregocrat-doublespeak.html

Now, had not the election been certified (Nov 30th) before the 3rd recount then, I would agree with you and all of the democrats that yes Wa law provides terms where these ballots could/would count. However, that is not the case. Once a game is played, (or in this case an election started) you can't change the rules in the middle of the game. This is the contention that I have with the SC ruling that they could add these votes. The whole reason that these laws were written were so that if we strictly adhered to them (to the letter) we wouldn't be in the predictament we're in. (Because Rossi would have won on the 3rd count, if all we did was "recount" the votes, and not recanvass.)

But then again, I'm sure all of the Dems would have been on the Blogosphere waves saying that "We were cheated!!"

Cid

// beg quote
JDM,
I'm still confused with your logic. You requoted from my post RCW 29A.60.210
which clearly states that recanvassing should not have been allowed since
the election had been *certified*, (Nov. 30th).
But then you turn around
and leave *that fact* out when you want to use the same RCW for your
benefit
// end quote

huh? My benefit?
I cited 29A.60.210 from SCOWS decision, in the context in which they explained it.

I quoted your words verbatim: *you* gave a definition of
"retabulate" which does not exist, and used that defintion
as reason for (as you put it)

"When certification occurs,
the election is over unless there is a recount.
If there is a recount, a different section of state
law applies (RCW 29A.64)."

There is no distinction between recount and retabulate: apparently,
you choose not to explain that, as I asked.

Within that context, SCOWS quoted and explained RCW 29A.60.110,
which describes required security for the entire process.
The purpose of this is to retain audit trail of ballots, and
ensure they haven't been tampered with for (among other things)
hand recounts.

This statute concludes:

>The containers may only be opened by the canvassing board as
>part of the canvass, or to conduct recounts, or under RCW
>29A.60.170(3), or by order of the superior court in a contest or
>election dispute. If the canvassing board opens a ballot container, it
>shall make a full record of the additional tabulation or examination
>made of the ballots. This record must be added to any other record of
>the canvassing process in that county.

notice it says: *additional tabulation*.
And it states "this record must be added to any other record"...

// beg quote
to say the this is where the clear language is in the law
that says it was O.K. to recanvass during the 3rd recount.
// end quote

I did not say that: I explained clearly what I was referring to.
You are mis-stating what I said.

// beg quote
Now, had not the election been certified (Nov 30th) before the
3rd recount then, I would agree with you and all of the democrats
that yes Wa law provides terms where these ballots could/would count.
However, that is not the case.
// end quote

It clearly is the case: The entire purpose of security is for
such an eventuality. The recount statutes go on to specify
procedures for *ammended certification*.

// beg quote
Once a game is played, (or in this case an election started) you can't
change the rules in the middle of the game. This is the contention that
I have with the SC ruling that they could add these votes. The whole
reason that these laws were written were so that if we strictly adhered
to them (to the letter) we wouldn't be in the predictament we're in.
// end quote

No: the reason these for the laws was to make provisions for
all eventualities so that an accurate outcome of *legal* ballots
can be attained. Your argument requires ignoring of *legal*
votes, properly cast, and maintained under proper security.
You assert these votes should not be counted based on a technicality.

In every respect, these (and every other state) laws were written
to prevent disenfranchisement.

You arrive at your conclusion by making up a definition of
retabulate which does not exist, and ignore clear statute
reference to filing of ammended results.

// beg quote
(Because Rossi would have won on the 3rd count, if all we did
was "recount" the votes, and not recanvass.)

But then again, I'm sure all of the Dems would have been on the
Blogosphere waves saying that "We were cheated!!"
// end quote

ahhh... pot/kettle etc.

You wrote...
//beg quote
You arrive at your conclusion by making up a definition of retabulate which does not exist, and ignore clear statute reference to filing of ammended results.
//end quote

While you do provide the correct defintion of it it seems to me your interpretation of re-tabulate is rather skewed...

Re-tabulate: As you stated above means:
//beg quote
1 : to put into tabular form
2 : to count, record, or list systematically
//end quote

"Tabluar form" means:
"1. Organized as a table or list." (dictionary.com).

"To count, record or list systematically:"
To count:
1. To name or list (the units of a group or collection) one by one in order to determine a total;
2. The totality of specific items in a particular sample (same link again)

To record:
1. To set down for preservation in writing or other permanent form.
2. To register or indicate: The clerk recorded the votes.
3. To record something. (dict.com)

To list:
1. To make a list of; itemize:
2. To enter in a list; register: listed each item received. (dict.com)

"Re"
Source: Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.

Main Entry: re-
Function: prefix
1 : again : anew

So now that we're all clear on the definitions here's the logic I employed in my earlier post when I arrived at my conclusion about retabulate. (by the way I don't really know anything about a "popular definition that the GOP used in Florida in 2k.)

Using the above definitions "tabulate" would mean:
To organize into a table or a list, or to list or name (the units of a group or a collection) one by one in order to determine a total, or to come to a totality of a specific sample. Then to record or register systematically this list to preserve it in writing.

Re-tabulate would then mean to do that all over again, nothing more.

So my conclusion came from the fact that there had to be a sample, group or collection the first time the "tabulation" was completed. This means that once you have completed tabulating a list, then retabulating would consist of doing the same exact thing over again. Not adding new items to the sample, group, or collection, because that would then only be "tabulating" because the sample would have changed.

As for the pot/kettle thing, while I may sound repub, I'm neither. I actually voted for both Dems & Repubs this election. I make my choices by listing my beliefs, morals and values and then vote for the candidate that has best exhibited those in their track record and from what I can find out about them (sans MSM) on my own. However, I can see where you came to that conclusion.

Btw, I thought I was up late last night.

Cid

Using the above definitions "tabulate" would mean:
To organize into a table or a list, or to list or name (the units of a group
or a collection) one by one in order to determine a total, or to come to
a totality of a specific sample. Then to record or register systematically
this list to preserve it in writing.

Re-tabulate would then mean to do that all over again, nothing more.
// end quote

I fully understand where you're coming from. Nevertheless, *retabulate*
makes no specification to what's being tabulated. It is not there.
If intent was as you say, they needed more words.

The links I posted both from SCOWS decision and NTER both drive
the point home: the distinction you make and cited as your reason
at beginning of this conversation does not exist. It is semantically
not present.

Accountants/CPA's use the term all the time in audits: it *always*
assumes possibility of adding data missed/not present in previous
tabulations: one of the purposes of audits is to find stuff that
was missed previously. Same w/banks, computer programmers and
all kinds of labs doing chem/bio/molecular testing.

The term specifies a human readable format (rows/columns) used
to present data in convenient manner, and includes assumption
that some type of counting/coalation/summary is involved in
the process. It does not specify, limit or define data
store (or stores) considered or used in process of getting
to result. It's just not there.

// beg quote
(by the way I
don't really know anything about a "popular definition that the GOP
used in Florida in 2k.)
// end quote

You can take my word, or investigate if you choose. Long/short:
many, many recounts in many decades have been done w/out ever
having this term argued as meaning what you say.

As I mentioned elsewhere in this forum, a number of key players
in GWB's 2k legal/logistics team during Florida "contest" have
written and spoken of their strategy there:
a) get early Florida certification w/GWB as winner prior to
"contest"
b) run out the clock for Federal (constitutional) deadline by which
electors must report/vote

Among other things, your definition was introduced by GWB lawyers
in Florida courts, and widely seen by many as means to accomplish
"running out clock". It really infuriated a lot of people.

This was reason for insertion of term in NTER document I cited.
When NTER was being written, there was very large contigent of
dem/liberals (myself included) who had frequent contact w/their
representatives over language used in the document. This was
motivated by what I described above (there were many others).
At the time, my representative was Barbara Lee (Oakland, Ca),
and her office in Oakland had *full time* liason to 1000's in
her district who were crossing t's/dotting i's on all that
Florida "stuff".

So respectfully, definition you use was not original intent:
this very issue has been talked about and scrutinized a lot,
and I know for a fact the definition I'm telling you is in
the congressional record if one cares to go in and dig for it.

// beg quote
So my conclusion came from the fact that there had to be a sample, group
or collection the first time the "tabulation" was completed. This
means that once you have completed tabulating a list, then
retabulating would consist of doing the same exact thing over
again. Not adding new items to the sample, group, or collection,
because that would then only be "tabulating" because the sam