A legal expert, who knows some of the players in the trial, e-mailed some very interesting responses to some of my questions and observations about the trial (before today's proceedings). This is well worthwhile --
General impressions:
My impression is that Judge Bridges is not yet convinced by the GOP case. The incompetence shown by King County clearly bothers Judge Bridges, but I'm not certain that the GOP has persuaded him that the fiasco at King County put Gregoire over the top - the GOP legal team were very good at showing how screwed up things were, but weren't so good at closing the syllogism.I also asked about his impressions about two moments that I thought were especially interesting last week --This put the judge in a quandary - the GOP showed that this election was so screwed up that we can have no confidence in the results, but they didn't give a clear way out with the statistical distribution of illegal votes (none of the experts shined - the GOP experts weren't completely persuasive and the D's were even less persuasive). On the other hand, the D's have so far given him nothing to run with the other way. I suspect that Judge Bridges has been reading and re-reading the depositions and pleadings, and probably spent part of the weekend writing a draft decision.
(1) When Judge Bridges questioned Nicole Way from the bench about the Mail Ballot Report. I think the most important new information that came out all week was her answer to the question whether she used the same method to complete the report in previous elections. Her voluntary admission that this year's method fell far short of what she customarily did and knew to be correct should be sigifnicant to anybody who was paying close attention.
Yes - Judge Bridges appeared extremely troubled by how King County conducted the election. That sort of questioning from the bench is very significant.(2) Judge Bridges' remarks when he denied the motion to dismiss. (a) "I cannot imagine that our ladies and gentlemen of the state Legislature ever contemplated the situation we find ourselves involved with today, where the parties and their attorneys have spent not less than six months trying to figure out what happened here and trying to collect evidence to support their various theories."
Yep - I think the Judge believes that this case is pretty much one of first impression and there isn't a lot of good precedent or legislative history to guide him. Given that Washington simply copied California's election contest statute, he's probably right.(b) "the parties don't agree what the law is" and it is "up to the court to decide" and (c) this case is largely about "what the citizens of the state of Washington expect when there is an election contest filed and what they deserve when a contest is filed"
The judge clearly takes this case very seriously and to some extent is skeptical of both political parties. This is why I keep recommending to watch Ahearne's arguments - Tom probably has more credibility with the judge than any other attorney present. Although I know you have little patience for Sam Reed, I do think that Sam has much more credibility with the court than any of the other parties (in part for the very reasons you find frustrating).I interpret the quotes in (2) above as a hint that Bridges will be creative in his ruling and more likely to set aside the election than not. At the very least I would expect him to put forth sensible rules for correcting for large numbers of clearly illegal votes when there is no direct evidence for whom those votes were cast. What do you think?
I think you are absolutely correct. I was frankly a little disappointed with the GOP statistical analysis experts (frankly, I've thought your little spreadsheets were clearer and easier to understand) - as a result, the judge has got a lot of work to do to justify his decision (regardless of what that is). Hopefully, the judge spent a lot of time this weekend working on the form of the decision (although probably not the result) so that the decision is defensible on appeal and provides more sensible rules than the Supreme Court are likely to come up with.The expert also sent the following dispatch in the middle of Nick Handy's testimony
Although you might certainly disagree with the amount of credibility the judge ought to give Nick's testimony, I think Nick's testimony illustrates the difficulty and risk in trying to get too much mileage out of the term "fraud". Had Dale limited the his characterization of the King County fiasco to simply "fiasco" or "appalling negligence" or "incompetence" or anything short of "fraud", he'd probably have a much easier time with Nick (and any other election official). It is one thing to say an election needs to be voided because of the incompetence of government officials - it is another thing to say it needs to be voided because of fraud committed by government officials.Posted by Stefan Sharkansky at May 31, 2005 04:01 PM | Email ThisWhether or not Dale's characterization was legally accurate, I think it definitely raised the stakes and the burden for the GOP legal team. And given that it was not necessary to make such a characterization to get the desired result, I think it may have been a signicant strategic error. Just my thoughts
Really too bad dunces like Logan and this other guy are so hard to pin down. Like wrestling, they keep scoring just by escaping....
Posted by: righton on May 31, 2005 04:14 PMSuch a ruling should avoid accusations of "ruling from the bench" while at the same time achieving a just result. Certainly a judge should be within his power to compel a state officer to act as required by law, and it would not be much of a stretch to say that election results are not valid unless or until everything has been reconciled properly; if things can never be reconciled, the results from that election can never be valid.
Posted by: supercat on May 31, 2005 04:18 PMIf the judge were to strictly go by the law, IMHO, the election would not be voided, but its effect suspended until such time as KC could certify "properly". The Luitenant Governor would take control unless/until legitimate certification was found to be impossible, whereupon a new election would be held.
The tricky issue would be what would happen if KC continued to claim that it was "making progress" toward a legitimate certification. I don't know at what point a judge could simply step in and say that their failure to resolve the issues suggests that they can't resolve them.
Posted by: supercat on May 31, 2005 04:36 PMMy question is similar to Jason's. If King County did not certify their results, because they knew them to be incorrect, could the SOS certified the election without King County totals?
Posted by: KS Observer on May 31, 2005 04:47 PMOrdering King County to try again would probably not be worthwhile. They would need to start at square one and re-canvass the ballots, wouldn't they? If that's what it would take, then they would need to re-examine every postmark and signature -- then shrug if they find one that came from the stacks of envelopes associated with accepted ballots, yet it ought to be rejected. There's no way to go get the ballot that was in it and reject it.
It would be nice if Judge Bridges would look at the many deviations from legally required processes -- and from common sense -- and decide that no one should rely on King County's official canvass report. But, is that something that Foulkes v. Hays would authorize? The most generous statement of the court's authority in that opinion was on page 633:
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.
That's slightly different from stating that the petitioners need to prove the outcome was "affected" or "changed" by the neglect in order to get a remedy, but would "distortions in election results" include anything other than what is meant by the usual words, "changed" or "affected"?
Posted by: Micajah on May 31, 2005 04:54 PMThen there is Nicole Way's testimony, which reveals fraudulent behavior (submitting a falsified document); but the Republicans did not allege that her fraudulent behavior was motivated by a desire to manipulate the outcome of the election.
Finally, there is evidence of sloppy procedures that could have led to fraud committed by individual election workers (why were they allowed to take blank ballots home? What reason could there possibly be other than gross negligence?), but no allegation that workers actually stuffed ballot boxes. The evidence may suggest that they did, but that's not the same as a specific allegation by the Republicans.
No, the analyst is wrong (or he or she misunderstands the Republicans' case). There is no extra burden because the Republicans used the word "fraud", and they absolutely should have used the word, because you really can't explain 875 more absentee ballots counted than absentee voters who voted, or the improbable distribution of over- and under-voting amongst strong Rossi and Gregoire precincts, without at least considering the possibility that individual voters committed fraud.
Posted by: srogers on May 31, 2005 04:57 PMIt would be a violation of the equal protection clause of the 14th Amendment.
Although I don't think it will be his solution, the judge could possibly require KC election officials to complete a proper and full reconciliation, issue a writ of mandamus to compel them to do so, and see everyone back in two weeks to check on progress.
Then it would be entertaining to sit back and watch King County scramble.
Posted by: Susan B. Anthony on May 31, 2005 04:58 PMYou get a little bit of commons sense on this board (Forman should never had used the Fraud word, since there was none, and he can't prove it), and now we have wingnuts asking to disenfranchise 1/3 of the population of Washington.
It is you only hope, I know, but it is not going to happen. Nor is the Judge going to overturn the will of the people just because there were errors and mistakes. Without a showing that those mistakes and errors changed the outcome, he will let the election stand.
You can mark the day that the GOP loss this case, and admitted it was nothing but a PR campaign when Dale Foreman came out promising fraud and ballot stuffing when he had to know that he could not prove it. Bad move legally, great move if all you care about is the PR.
Posted by: JDB on May 31, 2005 05:02 PMIt is my opinion given the evidence that the Judge should suspend the ruling and have the absentee ballot envelopes counted by independent party (audit of absentee envelopes) and have the "found" absentee ballots counted. Once you have those numbers to reconcile the total vote counts against, I believe the option would then be to do a proportional deduction for those precincts where the vote totals exceed the total number of certified voters. I am not sure how these numbers would turn out, partly because we don't know the actual number of absentee ballots.
As far as the felon vote, I am afraid this can not be addressed after the fact. The proportional analysis can not be applied to a subgroup from a general group. One can do the reverse, as I stated in the previous paragraph, but one cannot statistically assume a subgroup would have voted in accordance to the general population of the precinct (no matter the subgroup). It would be like stating all women (or men) in the precinct voted the same way the precinct voted, or that all college age voters (or elderly voters) voted the same way as the precinct. The assumption in the previous paragraph is that the over vote is representative of the precinct, which is a reasonable and statistically valid assumption.
Once the judge has these number decide, then a decision could be made on who won the election.
Posted by: tc on May 31, 2005 05:06 PMSuppose that, after the close of polls for a presidential election, a vehicle was transporting ballots for counting and it got t-boned by a gasoline tanker, destroying all the ballots therein.
Is there any remedy which would be constitutionally valid and not end up treating some people unequally? Note that a re-vote in a presidential election would not be constitutionally authorized.
Posted by: supercat on May 31, 2005 05:06 PMThe will of the people is a REVOTE. But you don't want THAT will of the people do you?
Posted by: Shannon C on May 31, 2005 05:09 PM"Forman should never have used the Fraud word, BECAUSE THERE WAS NONE, and he can't prove it . . ."
Neither can you prove the phrase I emphasized - but there is plenty of evidence that individual voters acted fraudulently, and that King County ran the election so sloppily that THEY have made it impossible to prove it one way or the other.
If you think the results should stand, its only because you got the outcome you wanted - but no rational person could argue that the result reflected the "will of the people." With the number of errors (administrative mistakes or fraudulent behavior, it doesn't matter) being some eight or nine times larger than the margin of "victory," the will of the people is absolutely unknowable without a runoff election.
What would be the lesser of two evils, disenfranchising 1/3 of the state's voters, or disenfranchising ALL of the stat's voters? Right now I believe that we were all disenfranchised because the massive incompetence and mismanagement on the part of King County Elections. And yes, I voted in King County, so I was advocating my own disenfranchisment if it means getting rid of the bulk of the illegal votes.
Posted by: Jason on May 31, 2005 05:32 PMHey, don't give them any ideas. Ya know, breaking into GOP offices and stealing computers didn't work...
Posted by: Splatter on May 31, 2005 05:45 PMGreat comeback, Shannon C!
Posted by: Shannon K on May 31, 2005 06:49 PMIt's interesting to note that the judge has made several comments regarding his reliance on the advice obtained from the SoS office relating to this case. I noticed he first started questioning witnesses when the subject of "crediting voters" was presented as an intregal part of the absentee ballot verification process. I don't know if this last letter/email/correspondence with KC that Foreman presented will tarnish his view of the accuracy of advice given to him by the SoS office...I know it would definitely tarnish mine.
Posted by first time poster - long time reader at May 31, 2005 01:02 PM
I am deeply concerned about the phrase in Handy's email to KC "...severely undermine the confidence of the court in the other Republican claims". Severely undermine the confidence of the court...the same court that is relying heavily upon the information/guidance provided by the office of the SoS. The same office that subsequent to this email, (please correct my timeline if this is incorrect) developed "talking points" that were distributed to county auditors and election officials to provide uniform information to the media and the public. Uniform information that has been proven to be inaccurate, misleading and misrepresenting state law.
The question I have is this: was this misleading, misrepresentation of state law part of Handy's attempt to "severely undermine the confidence of the court"?
Undermining the confidence of the court goes beyond supporting the position of a party to the contest. Severely undermining the confidence of a court that is relying heavily on your advice - as evidenced by the judge's statement in one of his earlier rulings that voter crediting is an administrative duty that occurs after the results have been tabulated for the sole purpose of updating voter databases - goes beyond simply suporting one party's position.
If I have misunderstood, please correct me.
Does anyone else see this as a significant problem?
I'm sorry for him. He has dabbled in the legal profession too long that he can no longer see or think clearly when a simple fact presents itself.
The Way-Fell Report was a 'lie'. They knew it was and they thought they could get away with it.
That is fraud.
As an academic I know how it is tempting to dismiss a simple explanation for phenomena that are rich in meaning and substance. I know it is hard to accept simplicity when one wants to chew on the subject longer than is necessary.
If I were a lawyer, God forbid, (and I grew up in a family of lawyers), this case would be an obsession to me and it would not satisfy me to simply conclude that county election officials falsified documents to create an appearance of integrity. I would want more. I would want to water it down to 'mistakes', 'computer problems', 'arduous scheduling and deadlines causing errors', etc.
Posted by: Michael on May 31, 2005 07:48 PMI would certainly be really p*ssed if I were the judge! This has made him look like an idiot.
You might recall Stefan and others were dumbfounded back we he made that ruling from the bench.
This was to me a pretty major coup on the part of Republican lawyers. Even after the screw ups on not getting the statistical evidence in, this might help get them over the top.
But then again I am not a lawyer.
Posted by: Deadwood on May 31, 2005 10:50 PMHandy's claims to neutrality cannot be taken seriously after his testimony today. The reliablity of his opinion of election law and proper procedure has been demolished. He has shown himself to be more concerned with the reputation of his colleagues in the "election community" than about the actual integrity of the election. And he was caught planning to influence the court's opinion of one of the parties before the court, while presenting himself to the court as a neutral and reliable expert (when in fact he was neither).
Can the Judge revisit previous decisions based on Handy's advice? Will Handy replace Nicole Way as the symbol of a mismanaged election? Will the Republicans connect the dots to fraud through Handy?
The fallout from today's testimony could be very interesting.
Posted by: California Dreamer on June 1, 2005 12:31 AM
For those who wish to argue this. Counting money with fraudulent intent, an intent to alter the outcome, produces a fraudulent outcome. Counting money resulting from fraud still leaves an honest count. An incomplete count of fraudulent money still leaves an incompete count. The incomplete count that is intentionally certified produced the fraudulent result, loop the logic again back to intent. What intent did Way and Fells have? They were dishonest to their employers, the residents of King COunty. Until new information surfaces their intent has every appearance of not intending to sway the election, instead, they intended to shave hours off their work by not ocmpleting the job they were paid to do.
The Republicans made their point, a smoking gun, just not a big gun.
Posted by: Mark Beyer on June 1, 2005 05:23 AMFirst time poster - illuminates the issue of what the judge should be thinking regarding the SoS lawyers since Handy Nick is one of dem! If he was trying to undermine the election contest and then lie about it on the stand, why should the judge rely on SoS pronouncements? I hope Judge Bridges thought about this last night after his reading of the Handy emails. One can hope!!!
Pudster
Puddy: You are half right. The problem for you all on the right is that you have to prove fraud if you want a chance to win this case. The judge has already said that errors alone are not enough to overthrow the election. You have to show that someone acted to change the outcome. To this date, no one has shown that.
Again, I ask for one example of election fraud, ballot stuffing or any thing else that Foreman promised in his opening. But you have none. And don't give me the Way report, as that is not fraud. It might have been in error, but error does not equal fraud. Felons voting, while illegal, does not equal fraud (unless you can show that they were organized, but lets face it, you don't want to since they probably voted heavily Rossi, and even then, I doubt they were organized).
I know it was a hard election, and I know the loss was a bitter one, but you have to return to reality and stop seeing only what you want to see. Your fall is going to be hard enough (and, goodness knows, if there was ever proof of pride going before the fall, I give you the Sound Politics wingnuts), why make it worse?
Posted by: JDB on June 1, 2005 09:48 AMI don't think the GOP lawyers are necessarily saying KC elections officials (intentionally) committed fraud for unfair gain (Gregoir victory). BUT they did ALLOW IT TO HAPPEN by either gross imcompetence, or by gross neglegence ("looking the other way"). This allowed the act of "fraud" to be committed by unknown people who stuffed ballot boxes, disposed of Rossi votes, or otherwise voted illegally to help Gregoire. IMHO that makes elections officials a party to fraud.
One thing I haven't heard is how the numbers looked after the first and second counts for the same precincts in question now. Were there fewer descrepancies in the voter crediting/reconciliation in the first two counts than in the hand recount? If so, we can see when the "ballot stuffing" happened.
Posted by: Scott C on June 1, 2005 10:01 AM
While the dictionary and legal definitions are slightly different, it is nice to see someone on this board who doesn't think that error = fraud. Mistakes and fraud, as you point, out, are very different.
But where is there any proof of "the act of "fraud" to be committed by unknown people who stuffed ballot boxes, disposed of Rossi votes, or otherwise voted illegally to help Gregoire"? I doubt the felons were organized to vote for Gregoire. For that mater, I doubt, and have seen absolutely no proof that a single error had any intent behind it. Everything that has been reported is easily explain by the errors inherient in a very human system (since we already have people on this board clammoring to get rid of 1/3 of the electorate, why not get rid of it all and have a computer pick the winner, then you will have no errors).
The biggest elephant in the room right now is the fact that there was not just one election, but several. If there really was ballot stuffing, etc, why didn't the Dem's get Senn elected as AG? How were they able to change only the Rossi/Gregoire count but not any of the other counts?
There was no fraud. There were mistakes. However, mistakes are not enough to overthrow an election. When Dale Foreman lead with fraud that he knew he could not prove (and given that he didn't even try to put on some evidence of fraud, he clearly knew last Monday he was blowing smoke) you knew that the GOP was no longer trying to win a legal case, but win a PR case. That is all this trial is about as of now.
I just don't think that Judge Bridges is very happy about having his courtroom used for a PR battle. The GOP's bluster might give KVI a nice sound bite, but it doesn't impress a seasoned trial judge.
Posted by: JDB on June 1, 2005 10:26 AMWhy would they bother to change the other counts? If their candidates either won without fudging or lost by too big a margin to fudge over, what would be the point of cheating on those races?
Posted by: supercat on June 1, 2005 07:52 PMBut remember, 99% of what the GOP and this board sights as bad votes had to have occured on election day or before, when no one knew how the vote would turn out. Provisionals put through the accuvote machines, felon votes, etc. Fraud of that kind would not be specific. If people were stuffing ballots, they would stuff for the Democratic slate.
Posted by: JDB on June 1, 2005 10:57 PM