Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Friday, December 17, 2004

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At the trial court level, the Democrats lost in their bid to include King County ballots which had been mistakenly omitted from the vote tabulation during the first count and recount.

What are the odds? I'm no bookie, but I wonder whether the state supreme court justices will consider it to be a denial of due process to refuse to correct the mistake made by King County employees.

The supreme court earlier ruled that county canvassing boards cannot reconsider their earlier decisions to treat some ballots as invalid.

That ruling makes sense. The voters, candidates, and political parties got their one bite at the apple -- and the canvassing boards made the decision that had to be made before the initial tabulation could be completed.

But, what if low-level employees don't follow the instructions of the canvassing board? What if those employees set some ballots aside as invalid even though the employees ought to check to see if the paper copies of registration data could fill a gap in the computer database? The canvassing board instructed those employees to compare signatures to determine if absentee ballots were genuine, but the employees stopped upon seeing that no signatures were in the database.

If the canvassing board wasn't asked to decide whether those ballots were actually genuine and valid, has there been a literally arbitrary exclusion of those votes from the count? There was no reason justifying their exclusion (assuming a comparison of the signatures on file and on the envelopes shows they are done by the same people).

If the legislation could be read as the trial court judge read it -- as requiring the canvassing boards to ignore the discovery of mistakes which precluded the boards from exercising their discretion in the first place -- is that legislation constitutional as applied to the facts of this case?

I wonder if the concept of due process has been applied in any similar circumstances to decide whether the board ought to get a chance to decide, rather than have its authority disappear as a result of employee negligence and the passage of time.

Obviously, at some point the election process has to end, so some mistakes would necessarily never be corrected; but the process isn't over yet.

Update: If this article in The Seattle Times is accurate, the canvassing board in King County rarely examines ballot envelopes to determine whether the signatures match voters’ signatures that are on file in voter registration records – they leave that job to employees working on their behalf. If the canvassing board members don’t personally exercise their discretion in any case, it seems difficult to argue that their employees’ mistake deprived the board of an opportunity to make a decision on those 735 absentee ballots.

Another discrepancy among the counties is how many steps they take in reviewing signatures. Some counties require a canvassing board to review all signature problems, while others rely on election staff. There is no state standard.

In King County, where about a third of the state's voters reside, election workers — not the three-person canvassing board — usually make the final call on whether a ballot signature is valid.

County Elections Director Dean Logan pointed out that the county processed more than 560,000 absentee and provisional ballots this year.

"Given that volume, it doesn't make sense that the canvassing board would go through each of those," said Logan.

The county this year rejected 1,976 absentee and provisional ballots due to signature problems. Of those, 735 are absentee votes still in dispute after they were incorrectly set aside.

It looks as though Mr. Logan missed the point. The canvassing board members don’t need to examine all 560,000 signatures. They can rely on their employees to do the initial screening. The board members only need to examine personally those ballot signatures which their employees believe to be illegitimate or questionable. Looking at 1,976 signatures wouldn’t have been an insurmountable task for those three canvassing board members. But, they chose not to do that job – so should they now get the chance to go back and do it during the second recount?


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