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)

Sunday, February 13, 2005

Robert Mak's "Up Front" on King 5 TV: Judge hasn't yet ruled

Finally, there is some semblance of accuracy on King 5 TV regarding the rulings made by the judge on February 4 and their impact on the rest of the election contest.

Today, on Robert Mak's show, "Up Front," Mak covered two points of contention after the judge ruled on motions February 4 in the gubernatorial election.

The Democrats claimed that the judge had ruled out the possibility of another election to choose a governor if the November 2004 election is set aside. (The judge, of course, had only ruled on the question before him -- whether he could order a special election this spring.)

As noted on "Up Front," the constitution provides for another election to fill the vacancy that would be created by setting aside the election -- and that election can occur in November 2005.

Mak cut off columnist Peter Callaghan of the Tacoma News Tribune before he could complete his answer to Mak's question asking when the election could occur. Callaghan first stated his understanding that the court could simply nullify the November 2004 election, but Mak interrupted before he could then state when he believed the election could occur.

Mak then tossed in the inapplicable part of the constitution which requires that regular elections of governors occur at the same time as legislators are elected, which Mak suggested would be November 2006.

David Postman of The Seattle Times then corrected Mak by noting that at least one legislator will be elected at the general election in November 2005, so even if that other part of the constitution applied to elections to fill a vacancy in the governor's office, the election could be this November -- not November 2006.

The Democrats claimed the judge had decided that the petitioners must prove that illegitimate votes were actually cast for Gregoire in sufficient number to erase her apparent margin of victory in order to prevail in their contest of the election.

Postman stated on "Up Front" that the judge stated on the record that he was not ruling yet on the required burden of proof. Postman also stated that he had read the transcript of the February 4 court hearing at which the judge made his rulings.

Note that Postman's first article for the Times in the afternoon of February 5 claimed:

The good news for Democrats was Bridges' ruling in Chelan County Superior Court that Republicans must show any illegal votes were cast in favor of Gregoire, and not Republican candidate Dino Rossi. There would have to be enough illegal Gregoire votes to erase her 129-vote victory margin.
At that point, Postman had swallowed what the Democrats were offering -- hook, line and sinker.

He had backed off by the following morning, and was no longer parroting the Democrats' "spin":
A major issue that appeared less than settled yesterday was whether Republicans would have to show that each illegal vote they find was cast for Gregoire and that they can find enough to erase her 129-vote victory margin.
Now, Postman has not only heard with his own ears what the judge said, but has also read the transcript -- and he has spit the hook out.

Peter Callaghan then noted that requiring the petitioners to prove for whom secret ballots were actually cast would be to ask them "to prove the unprovable."

It took more than a week for King 5 TV to catch up with the "spin" from the Democrats and broadcast something resembling an accurate report.

It's better late than never, I suppose.


Blogger chew_2 said...

Postman is not a lawyer and really doesn't understand what he heard.

He and TNT and others reported that the judge said that the challengers will have to show that illegal votes changed the outcome. You apparently emailed Postman to tell him he was wrong. He chickened out, since he doesn't understand what was going on.

The fact that the Judge said he wasn't ruling on the burden of proof was a red herring. That has to do with "clear and convincing" vs "preponderance of the evidence", not what you have to show with respect to illegal votes. Postman doesn't understand what he was talking about.

The argument that you don't have to show how the illegal votes changed the outcome is a total loser. You should give it up.

However, I'm starting to agree with you that an election could be held in 2005. But given Judge Bridges comments, I think he will opt for 2006, and it will be up to the Supreme Court to ultimately decide.

February 13, 2005 10:36 PM  
Blogger north clark county said...

Should we get to the need for such a decision, I don't think Bridges will make any ruling pertaining to the date of new election. He seems to be a stickler for interpreting and applying the law. He has indicated that by ruling that he has no authority to order a special election.

Therefore, should he set aside the election, I think he would not attempt to rule on further relief. This would leave it to those empowered by law to remedy the situation. Obviously, the SCOWS would then weigh in on this, but I think the proper course of action is to allow the legal provisions for filling the vacancy to kick in. This would mean others, either the SoS or the legislature to implement the further relief.

February 14, 2005 8:11 AM  
Blogger Micajah said...


I wish I could claim to have changed Postman's mind, but I have never corresponded with him.

His article claimed that the judge had ruled that the petitioners must prove for whom the votes were cast -- at 5:17 P.M., Feb. 4, according to the copy I saved from the Times' web site.

The next morning, I checked and found that Postman's article no longer made that claim. According to the copy I saved from the Times' website, his article had been updated at midnight.

It is probably true that Postman isn't a lawyer, as you say.

It is also true that he was the only newspaper reporter who had made such a statement on Feb. 4.

Now that he has backed off, what is your source for believing otherwise?

I haven't seen a transcript of the Feb. 4 hearing. Have you?

You say: "The argument that you don't have to show how the illegal votes changed the outcome is a total loser. You should give it up."

Read again what I've actually said:

I recognize that the legislature in the "murky" past apparently intended to make it nearly impossible to prevail based on "illegal votes."

I also argue that the statutes which describe what must be done in a contest based on "illegal votes" aren't the sole basis for a contested election.

It is also possible to base a contest on "irregularity" or "improper conduct" by people charged with the responsibility to ensure the integrity of the election, when their neglect allows a great enough number of illegitimate votes to be cast and counted that those votes could have caused the wrong person to be declared the winner.

You can disagree all you want about the interpretation of that statute -- whether it says, in effect, did cause or could have caused -- but don't waste your time with adolescent arguments such as " loser...give it up."

They fall on deaf ears.

February 14, 2005 10:49 AM  
Blogger chew_2 said...


I agree.

I gather from the reports that he may have made comments referring to the 2006 date, but as you point out he will not be called upon to rule on that issu, and its highly unlikely he will reach out and do so. To the extent I implied otherwise, I mis-spoke.

February 14, 2005 10:55 AM  
Blogger Micajah said...


Here's one I didn't see until this morning in The Sun.

Rebecca Cook's article for the AP states:

"The state's election challenge law is not crystal clear. Bridges indicated there may be different standards for illegal votes cast by felons and dead people, as opposed to illegal votes that were counted because of errors by election workers."

It was first published yesterday in the Seattle P-I, but I was reading proposed election reform bills yesterday, not the newspapers:

It's interesting what gets reported once the transcript can be studied and compared to the Democrats' "spin," isn't it?

February 14, 2005 11:02 AM  
Blogger chew_2 said...


"Total loser" was my way of saying your arguments on this issue are fanciful and farfetched, without having to rehash all the arguments we traded in the past. I thought I was wearing you down, and hoped you would finally concede. -) But to the extent you took that as juvenile, I appologize.

Your original argument was that the "could have" standard under .070 was only applicable to misconduct, not contituting illegal votes. You spoke of "narrowly defining" illegl votes, so as to avoid the illegal vote requirements.

But now I gather you're shifting your arguments again and claiming .070 applies to illegal votes also, despite the specific provision, .110, that governs illegal votes and requires a showing of for whom they were cast.

Since you now say:

"when their neglect allows a great enough number of illegitimate votes to be cast and counted that those votes could have caused the wrong person to be declared the winner."

You need to show why .110 doesn't apply, but you don't, you just ignore it completely.

But your most far fetched and tortured argument is your claim that when .070 states that to succeed a challenger must show that the misconduct "procured" a different election result, it somehow means "could have" procured.

You're sounding like Bill Clinton about the definition of "is", although he actually had a point.

BTW, you attributed the Court's statement about murky legislative history. They were not referring to the contest statute and the illegal vote provisions, but to the errors and fraud statute, 29A.68.011.

I referred to a TNT article which also says that Bridges said the challengers will have to show for whom the illegal votes were cast.

"And, to use the specific illegal votes to overturn the election, Bridges said Republicans will have to trace them to the candidates and show the winner would change after subtracting them."

All this disputing about the news reports is pretty piddly since we don't know what Bridges said, without the transcript. So, I will bow out disputing about from now on.

Nevertheless you and Tim Goddard were making a big deal about it and the "misreporting".

February 14, 2005 11:53 AM  
Blogger Micajah said...


When I want to refer to "illegal votes" as that phrase is used in the RCW, I use that specific term and put it in quote marks.

When I want to refer to votes which shouldn't have been included in the count, but are not "illegal votes," I don't call them "illegal votes."

You noted:

But now I gather you're shifting your arguments again and claiming .070 applies to illegal votes also, despite the specific provision, .110, that governs illegal votes and requires a showing of for whom they were cast.

Since you now say:

"when their neglect allows a great enough number of illegitimate votes to be cast and counted that those votes could have caused the wrong person to be declared the winner."

You misunderstood my argument.

I called them "illegitimate votes" in the part you quoted for the specific purpose of distinguishing between "illegal votes" and votes which aren't legally in the vote count and which got there through neglect or irregularity.

As for my griping about inaccurate news reports, I was displeased by the fact that the "spin" from the Dem's was getting all the play. When I'm displeased by inaccurate reporting, I sometimes note that in my blog. I see no problem with doing so. I do see a problem with inaccurate reporting which served the Dem's propaganda purposes -- "Rossi loses, he can't get another election, it's over, he can't prove who those votes were cast for...."

It seems obvious that the Dem's want to discourage people who sincerely want a person in office who has been duly elected.

When the news media repeat the Dem's propaganda, and omit any statement of opposing views, I think they are not doing the right thing.

As for the phrase in the statute, "such as to procure," I have noted both possible interpretations along with my argument that one of them is the appropriate interpretation.

If you have a different argument to make about that phrase, offer it. Calling mine "tortured" or "far fetched" isn't an argument. It's simply your opinion.

February 14, 2005 1:32 PM  
Blogger chew_2 said...


Thanks for clarifyig your use of "illegal" vs. "illegitimate".

I said: "The argument that you don't have to show how the illegal votes changed the outcome is a total loser. You should give it up."

I meant "illegal" votes, not "illegitimate" votes.
Do I take it that you pretty much conceded as to "illegal" votes, with the proviso that if the judge were to rule otherwise you wouldn't object. -)

Just as I wouldn't object if the judge were to rule the election could only occur in 2006. LOL

BTW my greatest fear is the Court will claim some broad and undefined "equitable power" to remedy election error, not defined by the election laws. In that case, an activist judge or court could very well ignore the statutes to set aside the election based on the appearance of error.

Foulkes about

February 14, 2005 1:57 PM  
Blogger Micajah said...


I have accepted that the best the petitioners could hope for regarding "illegal votes" is that the courts will rule that some kind of proof based on proportions of votes for each candidate in the affected precincts is sufficient to show how the "illegal votes" "appear" to have affected the outcome. While it's possible to ask each person who cast an "illegal vote" how the ballot was marked, it's impractical.

And besides, credibility is hard to measure, especially since the person testifying would know you cannot pick his ballot out of the stack and see whether he is committing perjury. If he wants to screw up the outcome of the election, he can lie under oath and have his vote for one candidate taken away from the other candidate -- so the effect of his "illegal vote" could be doubled in favor of his preferred candidate.

Note that the Rebecca Cook article for the AP indicates she interviewed both the Ass't AG who is representing Sam Reed (named Even) and the former supreme court justice Talmadge -- and they both think the court will allow some kind of data-based argument when faced with the need to show for whom the votes were apparently cast:

The state's election challenge law is not crystal clear. Bridges indicated there may be different standards for illegal votes cast by felons and dead people, as opposed to illegal votes that were counted because of errors by election workers.

Talmadge said he doesn't believe state law will require Republicans to match every illegal vote with a candidate, despite Democrats' arguments that it should be done that way.

"It's almost impossible to prove how any one of those ballots were cast," Talmadge said. "I have to believe it would be something that doesn't require proof of an elector's vote."

Talmadge said Republicans will probably be allowed to do some sort of statistical analysis to show how many of the illegal votes likely went for Gregoire or Rossi. That's the standard of proof the secretary of state's office is backing as well, Even said.

Both attorneys said Republicans will have to prove that illegal votes changed the outcome of the election, and that will be a tough sell in the absence of obvious fraud or skullduggery.They may be wrong (and I don't know if they also say "illegal votes" only when they mean "illegal votes"), but at least it's obvious the argument will be made to the court that something less than the testimony of each person who cast an "illegal vote" is sufficient(unlike my "third way" of handling jurisdiction to decide a contested election before the legislature issues a certificate of election, which had no one in court arguing on its behalf).

I don't know if Talmadge and Even think there is a need to show for whom illegitimate votes were cast, but it seems they were talking about "illegal votes" during that part of the interview. The two different standards are noted in the first paragraph I quoted above, but it seems they aren't talking about the possibility that there are two different standards -- one when the contest is based on "illegal votes" and the other when the contest is based on neglect by election officials.

Maybe I can get Rebecca Cook to write "illegal votes" only when she means "illegal votes." ;-)

February 14, 2005 2:32 PM  
Blogger Micajah said...

Darn, I forgot to put that ending italics tag in front of the period in the last sentence of the quote, so the line break disappeared when I clicked to publish the comment.

I wonder if could modify their software just a little, so it would be worth even more than I'm paying to use it. :D

February 14, 2005 2:37 PM  
Blogger chew_2 said...


I wasn't able to cut and paste your link to the article for some reason.

You quote Cook:

"Bridges indicated there may be different standards for illegal votes cast by felons and dead people, as opposed to illegal votes that were counted because of errors by election workers."

The TNT article that I cited reports that Bridges ruled or stated that you didn't have to make a prior challenge of illegal votes for felons and others explicitly mentioned in the constitution, but you did have to make a prior challenge for other illegal votes. Could Cooke and TNT be reporting the same comments?

My understanding is that privacy laws and a prior Supreme Court ruling would likely prohibit forcing voters to testify about how they had voted. I recall the Aalhgaard case says something about this.

February 14, 2005 4:12 PM  
Blogger Micajah said...


I believe the idea of challenging voters at the polls is a different issue.

The TNT article you provided the URL to says (last updated Feb. 7, so maybe not the original wording):

But Bridges also said Republicans could introduce evidence about errors by election workers. Presumably these would include their allegations that 437 provisional ballots were counted without first verifying signatures. It’s less clear whether those would have to be traced to specific candidates.

So it looks as though the TNT reported something very similar to yesterday's article by Rebecca Cook.

I tried copying and pasting the URL to the Cook article in the PI, and it worked for me.

Try this one in today's edition of The Sun, which printed the same article:,2403,BSUN_19088_3546192,00.html

The Sun requires you to register to get access, but they haven't filled my inbox with spam yet -- and I registered several weeks ago. So, I think it's safe to register with them.

With regard to asking the voters how they voted, I think I did see some case from the 1930s that said it shouldn't or couldn't be done; but the supreme court allowed it to be done in Hill v. Howell long ago. Maybe a different result would pop up nowadays, but so far people seem to think they could be asked -- but perhaps couldn't be forced to answer, if they asserted their right to remain silent.

The "voterless ballots" issue is the one that I focus on mostly, since we don't even know where those ballots came from -- assuming of course that an examination of the source documents used in an attempt to credit voters with voting after certifying the election returns show that there really are 1800+ "voterless ballots."

For those, if they exist, who could conceivably be asked which candidate's name was chosen? Nobody that I can think of.

But, they apparently exceed the margin of victory by an awful lot.

No matter how the felons' votes and the votes of those who can be shown to have voted twice (including for dead spouses or relatives) break down among the candidates, the "voterless ballots" seem to overwhelm everything else.

February 14, 2005 5:31 PM  
Blogger chew_2 said...


You know reading these news reports is like consulting the oracle at delphi or deciphering what was going on in China from the western news reporters who don't even speak Chinese. It's all too uncertain, and seems to involve a lot of wishful thinking.

I still couldn't get the link to work and I don't want to register at the Sun. So I'll just rely on your reports, although not your conclusions.

Leaving aside the "illegal" votes, Cook and TNT are reporting that Bridges might use a different standard for the "illegitimate" votes caused by official negligence or misconduct, like the improper provisional ballots. This is appropriate since the wording of .110 and .070 are not the same and the standards are slightly different. That leaves open the question of what standard the judge will require under .070 for those provisional votes in King and other counties.

Frankly, I have no sense of what Bridge's prejudices or inclinations are as a Judge.

BTW King county has reported that they were able to validate approximately 70% of those improperly deposited provisional votes, so the number of ballots which might have changed the outcome has shrunk.

I really don't understand the voterless ballots yet. But I've read many reports that the failure to reconcile the figures is not direct evidence of fraud or improper votes. I will have to await further evidence or detailed reporting on this issue. My sense right now is that it will be very hard to prove votes that did or could have changed the outcome from the fact of this failure to reconcile the numbers.

February 14, 2005 11:08 PM  

Post a Comment

<< Home