Secretary of State Sam Reed filed three responses in the Chelan County court case this week supporting the Republican position, or, more precisely, arguing that the Democrats' motions to dismiss the election contest are a load of rubbish.
In this response to the Democrats' motion to dismiss for improper venue, Secretary Reed argues that Chelan County is as proper a venue as any.
In this response to the Democrat's motion to dismiss causes for election contest, Secretary Reed argues that double votes and felon votes should count as illegal votes for the purpose of contesting an election, despite the Democrats' hilarious attempt to argue otherwise.
In this response to the Democrats' motion to strike the requested relief of a revote:
Secretary Reed respectfully submits that if the Court eventually concludes that the election results should be set aside, under the law, the voters, and not this Court or the Legislature, would select Washington’s governor.Surely the Democrats will keep on writing their editorials and letters to the editors praising Reed for his independence and lack of partisanship. Posted by Stefan Sharkansky at January 27, 2005 11:24 PM | Email This
Surely the Dems will do their level best to say that the Republicans are just whining, being a bad sport, or in some way try to put the R's in a bad spotlight.
Surely, God willing and The Shark on the job, it ain't gonna fly!
Posted by: Steve Egan on January 27, 2005 11:55 PMI think your right, they will some. Likewise, the calls to recall Reed and punish him by the republicans will ease up a bit too.
I think Reed is correct on the venue issue. King County is adjacent to Chelan. Chelan does seem as good as any other. The only avenue left for the Ds is to request a move to another county that is more convenient for the witnesses.
The illegal vote statute is more difficult to analyze.
The statute is complex and the democrats do have a good argument in their position as the statute states that
"Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810" This their basis for arguing that felons need to be challenged earlier in the process.
Reed disagrees and makes some statements about excluding and including. Hard to say which way this one will go.
As to the revote, Reeds seems extremely cautious. He doesn't really argue with the democratic (intervenors) statements but says if the court did set the election aside, there would necessarily be a new election. Oh well. Same effect.
Reed specifically refuses to weigh in on the third issue about the limits of the court's authority and is deliberately tepid.
I really don't see Reed stepping out one way or another in his three minor briefs. I see that Foster Pepper along with Hugh Spitzer is still signing the pleadings.
Spitzer is a Washington State law expert with few equals. I predict his briefs representing Reeds will still more closely follow the court's rulings than either of the parties. In short Reeds will be saying "let the cards fall where they may.
Reed wants to get out of the election contest with all of the newspaper editorial boards stating how fair and impartial he was.
Posted by: Erik on January 28, 2005 12:11 AMIs this sarcasm?
The fact is, I continue to believe he has been level headed and non-partisan. Some of his positions are similar to those on one side, and some are similar to those on the other side.
Would it surprise you that not every Democratic voter agrees with every position the Democratic party has taken on all these matters?
Likewise, would it surprise you that not every Republican voter agrees with every position the Republican party has taken on all these matters?
Of course not. The positions any person has are based on more complicated principles than that.
Posted by: Daniel K on January 28, 2005 12:26 AMReed simply states that Gregoire would be removed if the GOP proved their case in which case the L. Governor would be the governor.
The democrats cite Article III section I which states that the governor should be elected at the same time as the legislature.
I don't think Reed disagrees with this. He only states that Gregoire would be removed and the LG would then take his place.
Article III is pretty clear. I don't see how the GOP will get around this. Thus, unless there is something I don't see or someone can point out, the soonest Rossi will only be able to run for governor in 2006 if he is successful in the contest.
Because the state constitution trumps any state law, the legislature will not be able to order a "special election."
Is this right? Wrong? Why?
Posted by: Erik on January 28, 2005 01:03 AMARTICLE VI
ELECTIONS AND ELECTIVE RIGHTS
SECTION 1 QUALIFICATIONS OF ELECTORS.
All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, Section 3 of this Constitution, shall be entitled to vote at all elections
SECTION 3 WHO DISQUALIFIED.
All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise.
Section 1 and section 3 (and others) of the Washington State Constitution state who is not qualified to vote. Do not these non qualifications all lead to illegal votes? Do they state that under certain circumstances illegal votes must be accepted as legal votes? Is there any authority for the legislature to say if you don’t speak up by a certain time, these votes become legal? Why can’t ALL illegal votes be challenged in a contest? Educate me.
I still don't see how one gets around the very specific requirement in Article III section I of the state constitution requiring that the governor race be held at the same time as the legislature. The GOP argument is that the court can use its equitable power for a special election.
Unfortunately, for the GOP, I don't see how this is possible. However, if they win the contest, they could get Gregoire out immediately and the LG would finish out two years.
SECTION 3 WHO DISQUALIFIED.
All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise
Yes you are right. However, the issue remains as to when felons must be challenged. This is a close issue.
Posted by: Erik on January 28, 2005 02:13 AMAnd consider again the people listed at the end of each brief, in addition to the super-lawyers from FP&S:
===========================================
ROB McKENNA Attorney General
Maureen Hart, Senior Assistant Attorney General
Jeffrey T. Even, Assistant Attorney General
===========================================
First thank your lucky stars the name in front of the AG title is Mr. Rob McKenna, and NOT D. Senn.
But don't overlook the other names either.
Note especially the last one: Assistant AG Jeffrey Even. He is perhaps the leading expert on WA election statues and related case law in the AG's office; and for that matter in most private law firms in WA. When the SOS Elections Division doesn't know the answer to a ?, they are likely to consult with Jeffrey Even.
Most of all, remember that the AG's office is the default attorney for all the State agencies when they go to or end up in court for whatever reason (the private lawyers from FP&S are there largely because between the 2 Nov election and the 11 January swearing in of Rob McKenna, the current Gov-Temp was still the serving AG). The new AG and his troops are now standing behind these briefs, and that has to be a good thing; even if they don't say everything we might wish at this point (but stay tuned for the aftermath of the hearing in Wenatchee a week from right now).
SIDEBAR:
After the "Cc:" at the bottom of Stefan's latest data request to the SOS for same stuff SeaTimes got, I notice Greg Overstreet....
That's pretty interesting too.... ;-]
Methow Ken
Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencment of the term, a person shall be elected at such election to fill the office of the governor for the remainder of the unexpired term.
The last part of the sentence is the most important. Hopefully a court decision on the matter would occur well before the 30 days prior to the November election. As I stated before a general election occurs every year according to the general provisions of RCW 29A. We also are well within 2 years of the commencment of this governors term. I, and apparantly Sam Reed would agree, that section 10 would trump section 1. Section 10 deals directly with the removal of the governor from office, while section 1 deals with "normal" elections.
Posted by: ChuckJ on January 28, 2005 02:52 AMIt was too good to be true. Non-partisan, honest, above board effort never stands...the parties prevail.
Isn't democracy great?
Posted by: jim on January 28, 2005 05:02 AMYour question is about the definition of “illegal votes”. RCW 29A.68.020(5)(b) provides that Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.
RCW 29A.08.810 provides that challenges initiated by a registered voter must be filed not later than the day before any primary or election, general or special, at the office of the appropriate county auditor. RCW 29A.08.020 provides that all challenged ballots must be determined no later than the time of canvassing for the particular primary or election. The decision of the canvassing board or other authority charged by law with canvassing the returns shall be final.
The Democrats position is that these provision require that you look through the voting roles in advance, find the dead persons, find the felons, etc and when that vote is being cast or counted raise you raise your objection. If your objection is ignored, then you note that ballot/vote as one you will raise in your contest – because then you would know exactly which ballots/vote you were objecting to as illegal.
The AG position is that RCW 29A.68.020 nust be read to specifically include double votes and felon votes within the defintion of "illegal votes" even if they were not challenged under RCW 29A.08.810.
I agree with the previous comments that this is a very close and difficult question of law.
Just because Legal Team Rossi has ASKED that the remedy be a REVOTE if the court indeed finds that he has been harmed and no one knows who really won, doesn't necessarily mean the judge WILL ORDER a revote.
What other scenarios should we be prepared to expect?
Throw out hand count?
Throw out election completely and bring in Brad until next election cycle?
Say 'yes Rossi was harmed', but no nothing to remedy?
As to whether there can be a revote, the SoS brief saw two possible outcomes should the judge set aside the election. One, the court could use its "equitable powers" to order a new election. Two, the court could vacate the office of governor, allowing Brad Owen to serve as acting governor until the November 2005 general election determines a new governor. This would be a new election, allowing anyone to run for the office. The limitation on electing the governor at the same time as the other officers and legislators does not apply to a Section 10 new election to fill a vacancy.
The remedies available to the judge are:
1) find that the hand recount was so flawed that its results are unreliable, and declare Rossi the winner based on the earlier counts. This is very unlikely because the contest is not questioning the hand recount; the illegal and improper votes were present in the earlier counts as well.
2) Set aside the election and use the equitable powers of the court to order a new election as soon as possible. A possibility, but somewhat less likely due to the problems of determining how to run a new election: who gets to run?
3) Set aside the election and vacate the office of governor, allowing the vacancy to be filled in an election this November.
4) Find that the election contest does not succeed, allowing CG to stay in office.
Whatever his personal convictions are, at this point I see Reed as struggling to walk the middle line as professionally and non-partisan as he can, given what he’s got - and being highly scrutinized by the public and colleagues. Sam Reed is in the midst of a real ugly political quagmire- I do not envy his position today.
Just wondering if anyone can answer this – if it’s obvious that the election should be nullified, but because of the strong Democratic presence the whole thing gets swiped under the legal rug, who or what body can hold the State accountable and see that it’s own laws are actually followed?
I hate to think of our State as being that out of bounds, but I do fear it.
The Washington State Supreme court. If not the majority opinion then in the minority opinion. The justices range from more liberal to the far right.
Reed and McKenna
If the action was against the state of Washington and McKenna had to determine its interest, I think you would see alot more different in the legal briefing. McKenna's client would be the state of Washington and he would have only himself to look to.
The election contest is different as McKenna's client is the SOS Sam Reed who tells McKenna what positions to take. Thus, although there will be some difference with McKenna taking over the helm, I wouldn't look to see any great reversals. Not unless Reed takes this action.
To put it another way, they do not have just a different set of arrows in their respective quivers; I would argue that McKenna simply has more arrows in his. And, from past experience with both CG and Senn in office, it's hard to imagine them being less partisan or divisive.
Posted by: scott158 on January 28, 2005 11:48 AMI wouldn't be so sure of that. That is why the judge has specifically asked the sides to brief on the question of how you define an "illegal vote" under RCW 29A.68.020(5). The Repubs, of course support the previous poster’s interpretation that RCW 29A.68.020(5)(a) stands independent from the limitations to the definition of "illegal votes" in 29A.68.020(5)(b). The Dems will argue that if the legislature didn’t intend to limit the universe of illegal votes they wouldn't have included the subsection (b) limitation. These are both valid arguments and not easy to decide, but this is the heart of the contest.
Now, I know that this is going to anger many - but I favor the Dems reading of the statute, and here is why. It makes it more difficult to remove a sitting elected official and that what was intended. Under the Dems reading, you can't wait until after you know the results of the election and then go looking for a way to overturn it becasue you didn't like the outcome (go ahead – blast me but please understand I am not accusing anyone of anything here - I am just presenting the Dems arguments as I see them). Rather, you have to identify the potential illegality during the voting / counting process and then make you contest if those votes are allowed in. It raises the bar very high, and I think that was the intent of the legislature.
The burden would be on the Democrats to show that felon votes were in fact improperly registered. You can't presume that they are all improperly registered. That is a question of fact. If a person properly registers prior to a felony conviction but is not scrubbed from the auditor's list, it is an illegal vote, but not improperly registered.
Bottom line - The Republicans will be presenting 100's of felons who voted illegally. Will the Democrats do any research as to whether they were improperly registered? A judge isn't likely to buy the argument if the Democrats present no evidence.
Tim
Posted by: Tim Ford on January 28, 2005 02:12 PMThe felon votes are illegal - they should have either been left in the provisional pile, or the ballots not issued in the first place because these people did not have the right to vote at that time. They don't count. Period. It's kind of black and white on this - the voters are either registered and legal, or not.
I hate to rock your happy liberal world, but there's no happy gray area where butterflies flutter amongst peaceful happy voters - there's legal to vote and not legal to vote. That's not up for any other interpretation.
The SCOWS also clearly stated that there is a difference between the act of registering and having that challenged and the act of voting and having that challenged. Their words: "For instance, RCW 29.59.010 [the predecessor of RCW 29A.08.810] provides the mechanism to challenge a voter's right to cast a vote, while RCW 29.65.010 [the predecessor of 29A.68.020] supplies the remedy when the improperly registered voter actually casts a vote. Viewed in this manner, the statutes simply complement each other. This result coincides with the general rule that election statutes are considered remedial and should be liberally construed."
Posted by: north clark county on January 28, 2005 02:26 PMIs there any chance the Judge will adhere to the true purpose and intention behind these specific RCW's and WAC's?
I'm seeing way too much spin - and wonder if anyone stops to consider what the purpose was behind these laws in the first place...?
Posted by: Deborah on January 28, 2005 04:56 PMThis statement of yours -- posted at January 28, 2005 01:42 PM -- begs the question:
Now, I know that this is going to anger many - but I favor the Dems reading of the statute, and here is why. It makes it more difficult to remove a sitting elected official and that what was intended. [Emphasis added.]
The question is whether Gregoire is rightfully sitting in the governor's office.
You assume that she is, and then argue for a construction of the laws which is more likely to keep her in office.
Click my name below -- it should take you to my blog, where I've written an extended explanation of my construction of the laws regarding "illegal votes" and votes that aren't legal.
The Democrats' arguments in court appear to be absurd. I believe Judge Bridges directed the lawyers to research "illegal votes" carefully, because he hoped that they would stop wasting his time with absurdly wrong arguments.
Posted by: Micajah on January 28, 2005 06:31 PM