In the face of widespread irregularities, Democrats want illegal votes found through Dino Rossi's contested gubernatorial election lawsuit to be deducted from Rossi or current Governor Christine Gregoire based on an impossible-to-administer, after-the-fact determination regarding for which candidate each illegal ballot was actually cast. Realistically, both sides understand other methods are likely to be used instead. With that in mind, attorney Jenny Durkan, who's representing Gregoire's side, has made an amazing suggestion. That illegal votes should be subtracted from candidate totals based not (sensibly) on what precincts the votes came from, and how those precincts voted overall in the gubernatorial election; but instead (absurdly), on demographic data indicating for whom identified illegal voters were likely to have voted. This data should include, Durkan posited, what kind of car each voter in question drives, what magazines they read, and even whether they've had dealings with Gregoire. (The presumption being, what? If they have, they're MORE or LESS likely to have voted for her?). The mind boggles. From today's Seattle Times article:
Republicans want to use something called proportional deduction for illegal votes. Using that method, illegal votes would be divided between Gregoire and Rossi by the same percentage that they split the legitimate vote in a given precinct.....Democrats will oppose that, Durkan said. And if Bridges allows proportional deduction, she said, Democrats will argue that instead of splitting the vote according to geography, other personal information should be used.She said that could include voters' gender, education level, what magazines they read, what car they drive and whether they had any dealings with Gregoire during her three terms as attorney general. "I think the experts will say that will be more indicative of how someone voted," she told Bridges.
(Mac Safari users click on time stamp below to continue).
What experts would those be, Ms. Durkan? King County elections department experts? Let's guess what presumptions will be in play here if Democrat Durkan were, incredibly, to get her way. Gender: male oafs vote for Rossi, savvy women for Gregoire. Education: more education, why of course, you vote for the Democrat. Auto preferences: Fords and Chevys=Rossi; Subuarus, Hondas, Volkswagens and of course Citroens=Gregoire. Magazine subscriptions: Reason, Weekly Standard, Commentary=Rossi; The Nation, Mother Jones, Utne Reader=Gregoire.
Hang on. I'm a Honda-driving, keffir-quaffing Rossi voter. And Sound Politics reader Eric Earling e-mails:
...the methods Durkan is talking about are great for political marketing...but they are not a fool-proof way of verifying how someone will actually vote. Case in point, (Bush '04 campaign guru) Ken Mehlman was quoted as saying "If you drive a Volvo and you do yoga, you are pretty much a Democrat" during a discussion of this very political marketing in action last year. But, there are always exceptions when people actually vote. Example: my wife takes yoga and drives a Volvo (plus we choose to live in a condo/townhouse to raise our family, she subscribes to Cosmo magazine, etc...all further marketing-based evidence she should be a D), and voted enthusiastically for Bush and most other Republicans on the ballot.If Durkan and Co. are going to attempt to extend such marketing tactics into assumptions of actual voting behavior that is outlandish....it isn't an effective way at all to analyze an amazingly close election that very much depended on people not voting they way they would be expected to (compare Rossi's vote total & percentage versus those of Bush & Nethercutt).
No method of divination is perfect of course, but Durkan's "personal data" gambit betrays desperation. The 129-vote "victory" margin is exceeded many times over by likely and soon-to-be-documented illegal votes; new King County irregularities are coming to light almost daily; and even Democratic Party loyalists are on the verge of calling for King County Election Director Dean Logan's scalp based on his department's stunning ineptitude. The margin of doubt in the Gregoire-Rossi results has grown exponentially. Precinct-by-precinct "proportional deduction" of illegal votes from the total is the way to go.
Posted by Matt Rosenberg at April 06, 2005 11:38 AM | Email ThisBut, actually, precinct location is almost certainly a better indication of how people voted than demographics, partly because precinct location has a huge affect on those very demographics.
But if we're going to use demographics, we should really use the criteria of Those Who Commit Vote Fraud. And clearly, Democrats own that demographic.
Posted by: Timothy on April 6, 2005 11:52 AMThe judge is the "trier of fact."
That ballots are secret in this state is a fact.
That illegal votes, once proven as facts, should be put into an unknown column as 'undetermined' as a fact.
Once that 'undetermined' column exceeds the margin accepted as fact, the election is judged to be factually invalidated.
If that means we go to an LG until November, so be it.
This, as opposed to both sides trying to convert the judge to a 'trier of opinion' or 'trier of the divination method we were able to get him to agree to.'
I would love a method to be able to deduct illegal votes from each candidate, but unfortunately, we cannot do so on the basis of fact. And I cannot support a means by which we are ultimately guessing.
Posted by: Patches Pal on April 6, 2005 11:53 AMI'm wondering if Jenny, Chrissy, Paul et al. feel in need of a long hot bath yet.
Posted by: Cheryl on April 6, 2005 11:54 AMMaking it all the more likely, in my opinion, that he will keep to the simple formula I suggested above.
I say this, understanding that in the face of certain defeat, the jackass party will delay and appeal in the hopes of extending the judgement past the October timeframe to buy their posterchild more time in office to effect their agenda. The growing desperation on their part is becoming evident.
Posted by: Patches Pal on April 6, 2005 12:12 PMSteve: That's hardly the point. The point is that we know how each precinct's votes break down. We cannot know that with anything close to certainty about any other demographic determinants.
That's the point, of course. Democrats don't like cold, hard facts. They want numbers which they can whine and moan about because no one knows what the real numbers are.
Of course, Republicans oppose the use of any method to determine how these ballots "should have" been cast (we say throw all the bad numbers out and start over), but if there is to be such a determination, subtracting proportionally by precinct is the only method which makes any sense at all.
Posted by: ScottM on April 6, 2005 12:17 PMThe quantity of miscast ballots alone is enough to throw out the election under 29A.68.070 because there are enough improperly cast ballots to have changed the outcome of the election. With a margin of only 129 votes and a number of improper provisionals, absentees, felon votes, dead votes, etc. above 2000, there is more than enough reason to simply throw out the election.
Posted by: Jeff B. on April 6, 2005 12:23 PMAdding or subtracting any illegal votes would in fact be a recount.
Can you say Election in November? I knew you could.
Posted by: smoke on April 6, 2005 12:25 PMThe Head of Fraud should vacate the Governor's office, period.
Posted by: DickH on April 6, 2005 12:26 PMShouldn't they be fighting to count the 'legal' votes that were just found in the dead body storage closet?
Posted by: Andy on April 6, 2005 12:45 PMSo you're back to guesswork, just like proportional voting, etc. At least with asking the voter, you can perhaps determine if he's lying. ("Oh, you voted for Rossi, did you? Then why is there a Gregoire bumpersticker on your car?")
It seems that everyone is resigned that there is a need to allocate the bad votes, but doesn't the fact we are arguing in itself say that the election is in never-never land and it should be thrown out. I don't know why it needs this numerical tabulation.
Just the fact of all these discrepancies is enough.
Posted by: swatter on April 6, 2005 12:48 PMI'm trying not to divulge trade secrets here, but let me simply say there are other, more scientific means of making these determinations using available data. Some of that methodology was spelled out by GOP leaders in a Time Magazine article which ran shortly before the November 2004 election.
There are other means available if indeed there is a need to try to divine voter intent. However, if you are looking for something that is 100% foolproof, you may as well grab two branches from a willow tree. There is nothing that is going to be 100% correct.
BUT...there are means which are much better than trying to divine which way a voter may lean based upon the car they drive, magazine subscriptions or any of the other outmoded means she is suggesting.
As Republicans, we can take heart that the Dems are still thinking like that. It means we have smarter, more forward-thinking people working for the GOP and its candidates.
Only you could possibly suggest that someone who has already broken the law (by casting an illegal ballot) should be trusted regarding for whom they said they voted. Incredible.
The people who cast illegal ballots knew they were doing it illegally; they know that if they say for whom they really voted it will count against that person; they know that they have not, and will not, be prosecuted for committing a crime. Why would they not lie about the candidate for whom they voted under these circumstances. The most UNRELIABLE source of inference is asking these people for whom they voted.
Steve:
The proportional analysis method is preferable to the demographic method because it has fewer independent variables, and therefore will likely arrive at the dependent variable much closer to the truth. In other words, the more variables (uncertainty) that you introduce, the less likely you are to arrive at the right answer.
That being said, I don't think there should be any deduction whatsoever. If proportional analysis is used, it should be used to show that the likely difference caused by illegal ballots FAR outweighs the actual difference in the election.
Any other use would be subject to errors, and the court should be a place to establish facts. Showing that more illegal ballots were cast than the difference in the election is a fact, and should be the burden of proof.
Posted by: Larry on April 6, 2005 12:58 PMThe outcome should be pretty obvious - Democrats like lattes, and there are still new Starbuckses springing up all over the state, so it's not hard to see which way momentum is. And besides, the people of the state of Washington seem pretty sensible, and it just seems impossible to imagine *any* sensible person wanting to vote for a Republican! I think a 65% reelection victory for Gregoire is a pretty conservative estimate, no pun intended.
I think I'm going to send this suggestion to our friendly county government; maybe they'll give me some hick's house as a reward for my cleverness!
Since this was a "model election for the world", perhaps our great government overlords should share some of their wisdom with those silly folks at the banks. Imagine all the money they could save by doing away with all of those big databases and stuff and simply deducing how much money you must have in your account based on a simple profile!
"Hm, drives a Neon, jeans a bit frayed at the bottom, goatee, no wedding ring... Your balance is $6,713.53 sir."
Besides, I have TWO Hondas (I'm a Honda girl and I'm never gonna change!) plus I'm a regular customer of PCC, the natural foods chain (just ignore all the leftwing bumper stickers in the their parking lots!) but I'm a rip-roaring conservative Republican so how would she be able to peg me????
Posted by: Michele on April 6, 2005 01:21 PMI continue to see several theories for invalidation suggested here. One is that if the number of illegal votes exceeds the margin of victory, the election is thrown out. That is contrary to the statutes and the judge's prior rulings. It ain't going to happen.
Another is that improperly cast votes are illegal ballots. Most of the improperly cast ballots are probably legitimate. And the challenger has the burden of proof to show they were not.
I suspect there will be a lot of unhappy posters here when the judge rules on the applicable legal standards.
Posted by: Wayne on April 6, 2005 01:58 PMI'm a coffe-house/rock-concert/poor/Seattle twentysomething, and I voted straight Republican (for every office but State Auditor). It is a violation of everything I believe in to say I need to vote Democrat because of what people think I believe because of what it is I do with my life.
Posted by: Cliff on April 6, 2005 03:03 PMI was going to ask why you think that proving the number of illegal ballots is greater than the margin of victory is "contrary to the statutes and the judge's prior rulings".
Then I read this jaw-dropper: "Most of the improperly cast ballots are probably legitimate." Huh? What? A ballot cast by a deceased individual is probably legitimate? A ballot cast by a felon without voting rights is probably legitimate? A ballot cast by someone who is not a citizen of Washington is probably legitimate?
Your analysis is probably not legitimate.
Posted by: Larry on April 6, 2005 03:07 PMOops, that was before they found all those missing votes. Sorry.
Posted by: swatter on April 6, 2005 04:00 PMShe makes some wacky suggestions. However, because felons are almost completely male, Dino's attorneys are going to have a hard time ignoring this factor. I haven't seen anything to suggest that geography or gender trump one or another as to voter prediction.
Posted by: Erik on April 6, 2005 04:14 PMThis would be profiling! That's illegal. (The liberal Dems should know this - as it was their argument against profiling....) Besides - how would the Democrats request above differ from Martin Ringhofer's methods to determine non-citizen voters? Sheesh! All he wanted to do is check foreign sounding surnames! He wasn't going to profile them down to their magazine choice and vehicle make and models! The information the Dems want to collect sound suspiciously like the questions given on a survey card when you register for a warranty!
Heh...After the Dems get all of this information - they could sell it to telemarketers! ACK! They would too!!
"However, because felons are almost completely male, Dino's attorneys are going to have a hard time ignoring this factor."
Talk about inducing laughter. There hasn't been any burden of proof required to attribute the votes. Let me re-word your statement and see what you think:
"However, because felons without voting rights did cast ballots in this election, Gregoire's attorneys are going to have a hard time ignoring this factor."
I think that's more like it. Your statement made absolutely no sense as it was worded. Glad to help.
Do you think it's a bigger deal that felons are male, or that felons cast ballots? I wonder what the Judge will think? Hmmmmmmm......
Posted by: Larry on April 6, 2005 04:58 PMProportional analysis isn't an ideal option, but especially when done down to the precinct level is the best available option since the law allows contesting the election based on disputed ballots but is ambigious on potential details of how such ballots should be assessed. That helps with the unverified provisional ballots, felon votes, and the like, but for the mystery ballots Stefan has pointed out related to mystery ballots that outnumber the number of credited voters you'd have to run the analysis from the county level.
Calling individual voters to the stand in trial is logistically implausible, especially since King County can't identify who hundreds of ballots should be credited to to begin with. The demographic analysis proposed by Durkan though is simply silly for this case...great for political campaign use before the election, but relatively useless afterward. Short of depriving people of a secret ballot, the best available means to determine impact of disputed ballots is proportional analysis.
Either way, as you noted, the GOP has a strong case.
Posted by: Eric Earling on April 6, 2005 05:34 PMCongratulations on ridiculing a mangled version of my post. The improperly cast ballots I was talking about was the provisionals run through the machines, etc., not the felons, dead voters or non-citizens which are by definition "illegal ballots". Many of the posters here are not restricting their definition of "illegal ballot" to those three categories. I don't think, at the end of the day, there will be enough felons, dead and/or non-citizen voters to overturn the election.
With regard to your first comment, the statute requires comparing the vote total of the winner after subtraction of illegal votes cast for the winner with the vote total for the challenger after subtraction of the illegal votes cast for the challenger. The use of the word "appears" lends some credence to the idea that a proportional adjustment could be used, although that is yet to be decided. However, rather than get involved in a long, tedious argument about statutory construction when it is obvious most of the posters on this board could care less, I will say this: If you think the judge will overturn the election because the total of illegal votes exceeds 129, you are wrong, dead wrong, and you will find out next month that you are, in fact, wrong.
Posted by: wayne on April 6, 2005 05:46 PM"The people who cast illegal ballots knew they were doing it illegally; they know that if they say for whom they really voted it will count against that person; they know that they have not, and will not, be prosecuted for committing a crime. Why would they not lie about the candidate for whom they voted under these circumstances. The most UNRELIABLE source of inference is asking these people for whom they voted."
Actually many of the people who voted illegally had no idea they were doing so illegally, especially those accidentally sent a ballot in the mail. But regardless, you are absolutely correct, you really can't rely on a person truthfully divulging who they voted for, even if you legally could compel them to do so. Sounds like a quandry and it is: neither guessing based on questionable demographic factors, nor asking the voter appear to be possible, so it is going to be mighty hard for Rossi to prove these votes had any baring on the outcome. For every demographic category Rossi will want to use, there will always be another category that could contradict it.
Posted by: Daniel K on April 6, 2005 06:06 PMI don't think it's up to reader of this sort to provide to your legal research needs, though I understand your interest. The fact that the judge has essentially ruled in favor of allowing a proportional analysis to be presented should be evidence enough. If memory serves, he ruled against a Democratic motion targeting the allowance of such analysis.
And as I noted, the law applicable in this case does not spell out in detail how such election contests are to be dealt with, only the grounds under which they can be brought...that's part of the reason the judge felt the need to clarify he couldn't order a new election, only vacate the previous one.
This is all information I've gathered from reading news media coverage of the case so it is in the public domain.
Posted by: Eric Earling on April 6, 2005 06:47 PMI think that most people who voted illegally knew exactly what they were doing, but that's my opinion. 'Accidently sent their ballot in the mail'? Exactly how do you accidently fill out a ballot, sign it, and mail it in? And how do you fail to realize that you are a felon, not a citizen of Washington, and/or dead?
And why try to use categories to predict votes in the first place? What's the matter with the facts? The fact is that there are ten times as many illegal votes as the difference in the election. The fact is that KCEC is still finding ballots. The fact is that KCEC cannot now, nor has it ever been able to, reconcile the votes counted to voters credited. The facts indicate that the outcome of the election cannot be trusted. Figuring out what type of car I drive or if a felon is male or female will not change these facts, as much as the Democrats who want to profile me wish they could.
Posted by: Larry on April 6, 2005 07:22 PMProvisionals that are fed directly into the machines are not legitimate, because they can't be proven to be legitimate. Maybe they were cast by unknowing voters, and maybe they were stuffed in by workers for moveon.org. Your hypothesis is as good as mine. By the way, 'probably legitimate' is not a phrase you want to use very often in life. Furthermore, these provisionals indicate neglect by both KCEC and their poll workers.
Using the burden of proof for which candidate the illegal votes were cast renders the election contest statute impotent. There is no way to know due to ballot secrecy. It is asinine to ask the lawbreakers for whom they voted, and we don't even know who cast the illegally-stuffed provisionals due to the neglect of KCEC and their poll workers. Essentially what you're saying is that there is no election contest statute.
As for the burden of proof required and the outcome of the election contest, I'll trust the judge rather than you. If the contest prevails, it's Governor Rossi this November. If not, then maybe it's Senator Rossi and a Rebublican Governor in 2008. In either case, Washington is turning redder by the day, just like the rest of the country. You can only steal from the public for so long before you're caught.
Posted by: Larry on April 6, 2005 07:37 PMThe entire argument for having to determine who the illegal and invalid votes were cast for would be moot! I believe this is how the Judge will rule.
Think about this rationally - (NOT emotionally the way the Dems want us to approach this) The Democrats are actually asking for a profile to be made of the voters based on their *Magazine subscriptions* *Vehicle choice* etc..to somehow determine voter intent?? This is worse than profiling - it's voodoo! At least the Republicans were willing to use a science based proportional deduction analysis if a determination of possible voter intent were warranted.
The Democrats ENTIRE case rests on THIS particular ruling from Bridges. If the Judge rules that the Republicans need not identify who the ballots in question were cast for...the Democrats lose right there - on the spot!
But....remember. This is not over - even when Rossi wins this case. Aside from the formality of the Supreme Court appeal process, once the new election is ordered - there will still be an investigation to conduct! Especially with the newest military absentee ballot problems - the Feds are going to get in there (King County - and probably the SOS office) regardless of Rossi's win in court! This will be the icing on the cake - so to speak.....
Posted by: Deborah on April 6, 2005 07:59 PMNow, here is another question. Is it even constitutional to force someone (regardless of legality) to disclose how he/she voted? My contention is that it isn't, and as such, dems argument on finding on how individuals voted doesn't hold water.
All that said, it is inevitable to throw out the election.
Posted by: C. Oh on April 6, 2005 08:10 PMOh, they voted absentee you say. How dey do dat? Who's lips licked the stamp and the envelope? How wrote their specially unique signature?
Please someone help me here!!! Dead people voted?
Now that you all had your laugh, I remember the wonderfully smart legislator from Federal Way: "My father's vote will not count next time if there is a revote because he did November 3rd." DUH! Oh unless she didn't open her mouth in the first place, she could have voted for him and his vote would have counted again. Now we know his name so, shame on her now!!!
'NUFF SAID!!!!
Pudster
Posted by: Puddybud on April 6, 2005 08:37 PMThis is clearly a flawed law. It doesn't suggest how the court could prove, or even estimate, for whom the illegal ballots were cast. The law seems designed for cases where the illegal acts were conducted by a party, and therefore it can be presumed for whom they were cast.
But if a judge takes the law literally, he/she needs to figure out for whom the illegal ballots were apparently cast. Any statistician will tell you that the more factors you can use to profile a voter, the more accurate the estimate. Age *and* precinct are more accurate than just precinct, and so on. Yes, these factors are correlated, and that should be factored into the analysis.
There is one reason why precinct is more useful than other factors: we have official data on how the vote went in each precinct. Analysis of the other factors must rely on privately-conducted polls, which a court may not be comfortable doing.
The fact that you can't tell for sure how someone voted based on these factors is irrelevant. You can't tell for sure how they voted based on precinct, either. The more factors you use, the more likely you can guess right.
Also, the law says nothing about overturning elections due to incompetence. Perhaps a court can find other legal principles that justify that, but it's not in the law.
Posted by: Bruce on April 6, 2005 11:24 PM
Bruce...
If the law is written the way you've posted...and it says the number of illegal ballots cast for each candidate *needs* to be considered - then the law was written with errors. It says *Needs*?
Or is it *Shall* or *May*? This is important!
We have posted the actual RCW that applies to this several times in this blog...Each time we read it - it seemed apparent that the law did not require a determination of to whom the votes were cast.
Why don't you post it again....verbatim...
I enjoyed your efforts at making sense with Wayne and Daniel K. Amazing. What can anyone say but that's democrats for you. I often wondered what it was that would make anyone vote for Gore, or Kerry. Given these guys awareness and mental acuity, I understand.
Sometimes it seems hopeless, but keep on trying.
Nevertheless, you must admit they are amusing in a perverse sort of way.
Just listening to them, makes me feel better just being me.
RCW 29A.68.110
Illegal votes -- Number of votes affected -- Enough to change result.
No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person's legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
===========
I apologize for my imprecise language. The above says clearly that illegal votes for both candidates must be considered. As for the level of certainty required, it uses the term "appears", which I interpret as applying to all the illegal votes. However, one could argue that literally, the term "appears" applies just to the illegal votes for the contested winner, and "shown" (a higher standard) applies to the illegal votes for the contesting loser.
Posted by: Bruce on April 7, 2005 05:26 PMI would say "appears" needs only to show preponderance of evidence. In this case enough votes to affect the outcome of the election.
I would also say "shown" makes the allegation of the affected outcome granting victory to the challenger.
Thankfully, in this election there is both a preponderance of evidence and sufficient statistical (precinct ratio) breakdown of votes supporting annuling this election. Although I feel the law should be interpreted as it stands I also feel the Republicans will bring both a detailed list of all errors and a separate precinct breakdown if they are specifically called on to produce such a study in court.
Posted by: Mark Beyer on April 8, 2005 01:00 AM