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)

Monday, February 14, 2005

Sam Reed wins the first round

In the "Recall Reed" effort, the petitioner lost the first round in court. According to The Olympian:

BREAKING NEWS news updated: 2:26 PM 2/14/2005 -

Judge rejects Reed recall petition

Thurston County Judge Chris Wickham today rejected a recall petition against Secretary of State Sam Reed, saying the nine charges put forth by proponents lacked a factual or legal basis.

Proponent Martin Ringhofer says he intends to ask the state Supreme Court to review the ruling.

Ringhofer says he wants Reed dislodged from office because he certified Democrat Christine Gregoire as governor despite elections errors in King County.


I had asked at the "Recall Reed" blog what law supported their belief that the secretary of state has any authority or responsibility to certify the election of the governor. No answer from them, but it looks as though the Thurston County Superior Court judge has answered the question for them.

It may be interesting to see how the later reports describe the judge's ruling. I wonder if the secretary of state simply argued that he has no such authority, or if something else led to the judge's ruling.

Update:
King 5 TV has a similar report, which says that Reed's lawyer argued:

"The law obviously does not allow for an elected official to be recalled based on an action that he was compelled by law to take," assistant attorney general Jeffrey Even told the judge in Reed's defense.
What was Reed compelled to do? I think he was compelled to accept the county election returns of the gubernatorial election and deliver them to the speaker of the house. But, there's still no good description of the argument made by Reed through his attorney in court.

Update:
The Olympian has updated their report as of 4:03 P.M. to state in a little more detail what was argued by Assistant Attorney General Even on behalf of Sam Reed:

Even said it wasn't Reed's job to go back and review the results — he said that issue is left to the courts.

``The secretary of state had no choice, under the constitution and statutes of the state of Washington but to do what he did,'' he said.

That sounds close to my argument, but still not detailed enough to say for sure. His reference to the courts as the branch that decides "that issue" obviously doesn't imply a role for the legislature. Was he arguing that the courts are required to canvass the counties' election returns and certify the winner of the gubernatorial election? Surely not.

So, if it wasn't Reed's job to canvass those returns and certify the election, whose job was it? I say it was the legislature's job -- and, after all, the legislature in fact certified that Gregoire was "duly elected." Reed merely delivered a "
summary" of the county election returns to the legislature.

Update: Well, it sure would be nice to know what the judge said. Here's what the AP article in the Seattle Post-Intelligencer said about Reed's attorney's statement:

Even said it wasn't Reed's job to go back and review the results of a contested election - he said that was something that is left to the courts.

"The secretary of state had no choice, under the constitution and statutes of the state of Washington but to do what he did," he said.

That makes little sense. The election wasn't contested until January 7, and Reed signed the "summary" of the counties' election returns on December 30. I don't know when it was delivered to the speaker of the house, but I doubt that it was delivered after January 7.


Update Feb. 15: Well, it seems apparent that Reed’s attorney didn’t argue simply that Reed has no authority to certify the election of a governor.

The court didn’t decide whether Reed’s role is “ministerial” (just collect the returns and deliver them to the speaker of the house) or involves “discretion” (make some judgment about the accuracy and legitimacy of the returns).

I guess this should be expected in this kind of case.

A merely "ministerial" role couldn't have served as a basis for recalling Reed unless he completely failed or refused to collect and deliver the counties' election returns. Of course, there was no such allegation, since he obviously did accept and deliver them.

The court looked to see if -- assuming Reed had discretion -- there was any allegation of abuse of that discretion, and found none. So, even assuming Reed had authority to do anything other than accept and deliver the returns to the speaker of the house, the petition isn't legally sufficient.

The court did rule (pages 6 and 7 of the memorandum opinion) that the secretary of state’s role is to “assist the counties in conducting elections correctly.” That's as close as the judge seems to have come to stating that the secretary of state doesn't certify the election of a governor.

Naturally, I would rather have had an opinion that said plainly one way or the other what the judge held to be Reed’s authority under the constitution, but at least the judge didn’t say that the secretary of state certifies the election of a governor. (The judge used the words, "the act of certification," which is as close as he seems to have come to saying that the secretary of states certifies anything. I suppose the judge was referring to a "certification" that the returns from the counties were accurately stated in the "summary" delivered by Reed to the speaker of the house.)

Here is an excerpt of the final part of the opinion (emphasis added):

The Secretary’s duty to certify the results from the various counties is either ministerial or, if discretion is involved, his discretion would presumably be to determine the significance of any inadequacy or irregularity, the ability for the defect to be cured, and the resulting disenfranchisement of proper voters should he fail to certify the results for a particular county. This would be an area of discretion for him, and the Supreme Court has made it clear that when the act complained of is an exercise of discretion, there must be “fraud or arbitrary, unreasonable misuse of discretion.” Chandler v. Otto, 103 Wn. 2d 268, (1984). No facts have been alleged to show that the Secretary’s exercise of discretion involved fraud or was arbitrary. Nor is there a basis to conclude his action was unreasonable. Whether the act of certification by the Secretary of State is ministerial or discretionary, Charge 9 is legally insufficient in challenging that act.

Conclusion

The gist of the charges before the Court relate to the closely contested election for Governor in 2004. In such a close race, it becomes apparent that election irregularities could have made a difference in the outcome. The election irregularities are alleged to have occurred in counties across the state.

The statement of charges would ask the voters to conclude that the irregularities in the various counties are the responsibility of the Secretary of State and that the problems in the election were a result of his misfeasance, malfeasance, or the violation of his oath of office. In this regard it is important to remember that the elections in Washington were conducted on a county-by-county basis under the authority of elected officials for each county. Within each county are checks and balances to ensure as accurate a vote as possible.

The Secretary of State’s role in the electoral process, then, is to set standards and assist the counties in conducting elections correctly. Despite a great deal of attention to the conduct of the 2004 election, there has been no showing that the Secretary of State conducted his office in bad faith or unreasonably exercised the discretion granted him by law. To allow the submission of a ballot initiative based on the statement of charges in this case would be contrary to the intent of the Legislature, as there has been no showing of impropriety by the Secretary of State. There is not a factual or legal basis for the voters to conclude otherwise.

One last update (I promise): During today's live "chat" session hosted by The Olympian, Sam Reed was asked about his role in certifying the election of the governor. His reply seems to say that he doesn't believe he certifies the election (sorry no link -- I copied this while the "chat" was going on):

Bill, Issaquah: Why did you certify a gubernatorial election that was so obviously and significantly flawed? And why, in the wake of Florida 2000, did you not implement statewide election reforms that would have minimized, if not prevented, the problems seen there and that surfaced, in significant numbers, in Washington in 2004?

Reed: First place, most of the issues about illegal votes, came out after the certification in December, but our Washington State Constitution was written by populists who trusted their local officials and distrusted central authority, so the Consitituion (sic) says the elections will be certified at the local level and that the Secretary of State shall -- not may, shall -- do the same to the Legislature. In the process, the Secretary of State is not in a position to make a decision on the certification.

4 Comments:

Blogger north clark county said...

As you probably saw, I was trying to get some SP posters to recognize this fact. It doesn't seem to difficult a concept to grasp. I wonder what would have happened if the charged that Reed had illegally opened the sealed returns before transmitting them to the legislature?

February 14, 2005 5:32 PM  
Blogger Micajah said...

Yeah, I was about to post a comment on that "thread" at SP when I saw that you had already fought the good fight.

I'm hoping that the outcome of some of the whooping and hollering may be to sort out some of the misconceptions people have.

There are enough people interested, and there are obviously enough legislators who don't want to do what the constitution now says, so maybe there will be a move to figure out what they really want and put it into the constitution and statutes.

I wish I knew whether Reed's attorney argued that Reed was simply required to act as a courier and that he had no power to do anything other than deliver the counties' election returns to the speaker. That would be a start.

February 14, 2005 6:53 PM  
Blogger Martin Ringhofer said...

SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY

BRIEF IN SUPPORT OF MOTION
FOR RECONSIDERATION OF IN RE:
THE RECALL OF SAM REED
NO. 05-00222-8 MEMORANDUM
OPINION

COMES NOW Petitioners, Martin D. Ringhofer, and Linda Jordan, The Recall of Sam Reed, Secretary of State of Washington, and declares the following:

I. Introduction

Petitioners charge that Judge Wickham’s February 14th, 2005 ‘Memorandum Opinion’ in the matter of the Recall of Sam Reed, contains manifest errors. Petitioners also have new facts and case law.

“Motions for reconsideration are disfavored. The court will ordinarily deny such motions in absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence.” (LCR 59 Motions For Reconsideration, (a)(3) Standards)

Manifest Error

Manifest error is "an error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record" from Black's Law Dictionary 563 (7th ed. 1999).

II. Assignment of Errors

A. Wickhams Ruling Disregards Credible Evidence In The Record

1. Charge 1-6

Judge Wickham completely disregarded the credible evidence in the record when he found charges 1-6 factually insufficient.

The attorney general defined the test for determining “factual sufficiency” in his Petition To Determine Sufficiency Of Recall Charges And To Approve Ballot Synopsis. hereafter known as the Attorney General Petition.

“The ultimate questions are whether the voters are provided sufficient information to evaluate the charges and whether the proponent has a basis in knowledge of the charges.” (Pg. 7)

The attorney general also states that, “The Court may “look to supporting affidavits to determine whether a petition is factually sufficient.” (Pg. 7)

Judge Wickham ruled that Charges 1-6 in the Petition for Recall of Washington State Secretary of Stat Sam Reed to the Honorable Rob McKenna, Attorney General, hereafter known as the Recall Petition, were “factually insufficient” because, “there are no specific allegations as to facts showing wrongful conduct on the part of the Secretary of State.” (Memorandum Opinion In Re: The Recall of Sam Reed, pg. 4, L 13,14, hereafter known as the Wickham Memorandum)

This conclusion shows a complete disregard for the evidence in the record.

No reasonable person could read our Recall Petition, Charge 1-6, and conclude that we made no “specific allegations as to facts showing wrongful conduct on the part of the Secretary of State.” Judge Wickham in particular, having the benefit of reviewing supporting evidence and the Recall Petition, could not reasonably come to that conclusion.

In Charges 1-6 we made very specific allegations. After each Charge we state that Mr. Reed was aware of the “discrepancy”, “anomaly”, “violation”, and “serious inconsistency” detailed in the charges. We clearly establish in the Recall Petition that Mr. Reed, as Secretary of State, has a duty to “uphold” election laws and regulations, that he was well aware of the various election law violations prior to his certification of the
election, that he had a legal responsibility to not certify an election wrought with election law violations and
that he certified the November 2, 2004 election in violation of election laws and regulations.

2. Charge 7: Disregard of Credible Evidence

Judge Wickham concludes that Charge 7 is “factually and legally insufficient”. Charge 7 rests on the allegation that Secretary Reed failed to do his duty to uphold election law when he accepted the incomplete auditor abstracts from counties as follows:

a. Judge Wickham ruled that charge 7 was “factually insufficient” because “there is no specific allegation regarding the knowledge by Secretary of State of these irregularities.” This shows blatant disregard for the evidence in the record.

In the Recall Petition, Charge 7, we make a specific allegation as to Secretary Reed’s knowledge of irregularities, stating, “In violation of WAC 434-262-080, WAC 434-262-090 and WAC 434-262-100, Mr. Reed accepted as complete, the abstract of votes from 24 counties even though they did not provide all the material required by statute and regulations” and that he included them in his final certification. In fact, the Secretary’s attorney, Jeffrey Even, does not dispute that they were incomplete when Secretary of Reed certified on 12/30/2004. [Response of Sam Reed to Petition to determine sufficiency of Recall Charges and for approval of ballot synopsis]. Jeffrey Even’s refers to the Declaration of Pamela Floyd, in that Declaration Floyd does not dispute petitioner’s Charge 7 that the Secretary used incomplete auditor abstracts in the 12/30/2004 certification.

b. Judge Wickham found charge 7 “legally insufficient” because, “Similarly, there is no evidence that these irregularities are substantial enough to have made a difference in actions taken by the Secretary.” (Wickham Memorandum, pg. 5,
L 1-2)

Prima facie evidence that the “irregularities” were substantial is evident. Not only by all media accounts but by Reed’s own attorney, Jeffery Even, who characterized the November 2, 2004 election as a “raging public controversy.” [Response of Sam Reed to Petition to determine sufficiency of Recall Charges and for approval of ballot synopsis]. Raging public controversies don’t spring up from less than substantial irregularities.

In the Attorney General’s Petition the attorney general defines the test to determine legal sufficiency. Specifically, do the charges show, “that the acts are wrongful” (pg.8) and do the charges “clearly state conduct that, if true, would constitute misfeasance, malfeasance, or a violation of the officer’s oath of office.” (Pg. 9)


We establish in the Recall Petition that Secretary Reed has a duty to uphold election laws and regulations. Under Charge 7 we cite the specific laws he violated by accepting and using incomplete abstracts of votes from numerous counties before he certified the election on 12/30/2004. Reed’s attorney did not challenge the allegation that Sam Reed used incomplete abstracts in his 12/30/2004 certification.

No reasonable person including this Court can possibly overlook the fact that King County had at least 1,800 more votes than voters which they did not reconcile in the abstract they sent to Secretary Reed, nor that Secretary Reed included that abstract in his December 30, 2004 certification. For the Court to rule that this failure to follow the law is merely a matter of discretion is almost a borderline mockery of any understanding of what the word discretion and the phrase ‘discretionary act’ means either to a layman or in the law.

No reasonable person could conclude, after reading charge 7, that, if true, the alleged act would not “constitute misfeasance, malfeasance, or a violation of the officer’s oath of office.” Wickham’s conclusion patently disregards the evidence in record.

3. Charge 8: Disregard of Credible Evidence

Judge Wickham concluded that Charge 8 was “factually sufficient”, (Wickham Memorandum pg. 5, L 11-12)

Wickham goes on to say that, “There are no allegations that he [Reed] committed an act of misfeasance or malfeasance.” (Wickham Memorandum pg. 5, L 13)
This shows a blatant disregard for the evidence in the record.

Specifically we state in the Recall Petition that:

“The above acts [Charge 1-9] of malfeasance, misfeasance, and/or violation of the Secretary of State’s Oath of Office, as defined in RCW29A.56110(1), (a), (b), (2), occurred between November 3, 2003 and January 5,2005, and constituted a failure to perform the Secretary of State’s duties as detailed in RCW29A.o4.610 and in violation of RCW 42.20.040, RCW 42.20.050 and RCW9A.80.010. In spite of his personal knowledge of election law violations, violations of election statutes and regulations and his failure to employ said laws and regulations, Sam Reed certified the third and final manual recount of the November 2, 2004 Washington State General election. A duty to uphold and employ election laws and regulations is enjoined upon the Secretary of State, his willful neglect to perform this duty and his certification of an election that he knew was wrought with election law violations, was an act of malfeasance, misfeasance and/or violation of the Secretary of State’s Oath of Office, and violated the public trust.” (Recall Petition Pg. 2-3)

No reasonable person could read the Recall Petition and conclude that in Charge 8, “There are no allegations
that he [Reed] committed an act of misfeasance or malfeasance.” (Wickham Memorandum pg. 5, L 13)

Wickham acknowledges that, in Charge 8, we allege Secretary Reed violated his oath of office. (Wickham Memorandum pg.5, L 13,14) but goes on to say that “voters would have to be able to conclude that he [Reed] had neglected to perform faithfully a duty imposed by law. The use of the term “neglect” implies a reasonable standard. There are no sufficient allegations to show that he unreasonably carried out his duties in such a way as to constitute a violation of his oath of office.”

In Charge 8 (Recall Petition pg. 2) we specifically allege that Secretary Reed “violated RCW 29A.04.610 by failing to perform many of the duties detailed therein, including;”

A) Failure to examine and test voting systems for certification;
B) Failure to employ standards and procedures to ensure the accurate tabulation and canvassing of ballots;
C) Failure to ensure consistency among the counties of the state in the preparation of ballots, the operation of vote tallying systems, and the canvassing of primaries and elections;
D) Failure to ensure procedures to receive and distribute voter registration applications by mail;
E) Failure to engage in the testing, approval and certification of voting systems: F) Failure to enforce standards and procedures to prevent fraud and to facilitate the accurate processing and canvassing of absentee ballots and mail ballots;
G) Failure to enforce uniformity among the counties of the state in the conduct of absentee voting and mail ballot elections;
H) Failure to implement standards and procedures to accommodate out-of-state voters, overseas voters, and service voters;
I) Failure to enforce procedures for conducting a statutory recount.

In the Recall Petition we allege that Secretary Reed violated his oath of office by failing to “uphold and employ election laws and regulations” as detailed in Charges 1-9. (Recall Petition pg. 2)

Judge Wickham found the allegations in Charge 8 “factually sufficient” and assumes, as the law requires, they are true. No reasonable person who reads Charge 8 could conclude that, “There are no sufficient allegations to show that he [Reed] unreasonably carried out his duties in such a way as to constitute a violation of his oath of office” unless one could assign, to a reasonable person that failing or refusing to uphold election laws and regulations is a reasonable act for a Chief Election Official.

Here the judge is coming to conclusions that are reserved for the voters. He is not to judge the truth of the charge and yet he is concluding that voters could not determine if it was unreasonable for Secretary Reed to violate the laws cited in Charge 8.
III. Manifest Error: Disregard Of The Controlling Law

1. Wickham disregards controlling law in his ruling on Charge 9 and 7

First he assigns to the Secretary in Charge 9 a power of discretion that controlling law clearly does not give him, and second, he fails to assign duties to the Secretary in Charge 7 that controlling law clearly does give him.

A. To the first point: Charge 9, Wickham assigns power to the Secretary that the law does not give him

Wickham wonders if, “The Secretary’s duty to certify the results from the various counties is either ministerial” or “ if discretion is involved.”

The certification of a general election is an act compelled upon the Secretary by law. The controlling law governing the duty of the Secretary of State to certify a general election comes, in part, from; The Washington State Constitution (Article 3 sec 4 and 17) RCW 43.07.030, WAC 434-262-120 and WAC 434-262-100. (See attachment ‘Constitution, RCW’s, WAC’s Cited: Request for Reconsideration)

The repeated use of the term “shall”, along with the deadlines imposed in these laws and codes, make it clear that certification of an election is an act the Secretary is compelled by law to do. Nowhere can any law or code be found that would lead any reasonable person to conclude that the act of certification by the Secretary of State is in any way “discretional.”

Wickham continues to wonder that if the Secretary has discretion concerning certification of an election that it would “presumably be to determine the significance of any inadequacy or irregularity, the ability for the defect to be cured, and the resulting disenfranchisement of proper voters should he fail to certify the results for a
Particular County.” (Wickham Memorandum pg. 6, L 5-8)

And Wickham concludes that Charge 9 was “legally insufficient” because “No facts have been alleged to show that the Secretary’s exercise of discretion involved fraud or was arbitrary.”

Again, there is no controlling law that allows the Secretary discretion on whether or not to certify an election once he has accepted county canvass abstracts as “certified and complete” and there certainly is no law that would allow the Secretary to NOT certify an election, after he has accepted county abstracts as complete, because he thinks it would “disenfranchise proper voters.”


The only discretion we find, after the Secretary has accepted county vote abstracts as “certified and complete” and before his final certification, is that the Secretary can include a narrative along with his certification if he wants to detail discrepancies found during his canvass of county election returns.

B. To the second point: Charge 7, Wickham fails to assign duties to the Secretary that controlling law clearly does give him

We write in our Recall Petition, “CHARGE 7 In violation of WAC 434-262-080, WAC 434-262-090 and WAC 434-262-100, Mr. Reed accepted, as complete, the abstract of votes from 24 counties even though they did not provide all the material required by statute and regulations.” (Pg. 2)

The foundation of this charge is that the Secretary failed to follow laws which dictate that before accepting a certified copy of the county auditor's abstract of votes, “the secretary of state shall ensure that all material required to be submitted pursuant to state law and these regulations has been included in the certified copy of the auditor's abstract of votes transmitted to his or her office. In the event the secretary of state determines that the certified copy of the auditor's abstract of votes is incomplete, he or she shall notify the county auditor of that fact and shall request that the missing part of the abstract be forwarded immediately. No county's certified copy of the abstract of votes shall be considered as complete for acceptance by the secretary of state until all of the material required by statute and regulation has been received by the secretary of state. In the event the certified copy of the official abstract is illegible or in improper form, the secretary of state shall return that abstract and require an immediate resubmission of the abstract in proper or legible form. (WAC 434-262-090) Other WAC’s cited under Charge 7, which buttresses the one above, WAC 434-262-080 and WAC 434-262-100.

The Judge has to assume the truth of the alleged facts, that incomplete abstracts were submitted to and accepted by the Secretary in his final certification of the election on 12/30/2004. Indeed, Secretary Reed’s attorney provided no rebuttal to this allegation. (Response of Sam Reed to Petition to determine sufficiency of Recall Charges and approval of ballot synopsis, Declaration of Pamela Floyd)

In spite of this legal foundation, Wickham rules that Charge 7 is “legally insufficient” because “...there is no evidence that these [alleged election] irregularities are substantial enough to have made a difference in actions taken by the Secretary.” (Wickham Memorandum pg. 5, L 1-2)

While the language is confusing, it is clear that no reasonable person would conclude that the charge is legally insufficient without completely disregarding the controlling law cited in Charge 7.

2. Conclusions Contrary to RCW 29.82.023

The conclusions in the Wickham Memorandum conflict with the legal directive not to evaluate the truth of the charges, only their sufficiency and to construe the recall statutes in favor of the voters. (RCW 29.82.023)

3. Failure to Dispose of ‘Petitioner’s Affidavit Requesting Court Order a Correction of Error’

This affidavit was filed February 7, 2005 and was included in Judge Wickham’s February 14, 2005 Order as a part of the record. (In The Matter Of The Recall Of Sam Reed, No. 05-2-00222-8 Order 2/14/05)

Judge Wickham never addressed the affidavit, did not discuss, affirm, or deny it.

4. Refused To Allow Documents Presented on February 14, 2005 to be Submitted Into The Record

Because a Recall Petition is on an accelerated schedule, Judge Wickham, at a February 7, 2005 hearing, gave us only one week (until February 14, 2005) to prepare. Plaintiffs are pro se and made every effort to compile our brief, affidavits, exhibit list, exhibits, and orders prior to the 14th but barely finished around 1:00AM February 14, 2005.

At approximately 8:00AM on the morning of February 14th, Petitioners filed our brief, affidavits; exhibit list, exhibits, and orders with the Thurston County Superior Court Clerk in preparation for our 9:00AM hearing in Judge Wickham’s courtroom. After objection by Secretary Reed’s attorney, Judge Wickham ruled that he would not allow the documents to be admitted because they were not filed by noon two days prior to February 14th in violation of court rules.

We believe Judge Wickham erred when he made this ruling by incorrectly applying court rules to the Recall Process, which is an accelerated process.

IV. New Case Law

Plaintiffs cite new case law that, even though we were diligent, did not come to our attention until after Judge Wickhams February 14, 2005 ruling.

1. Judge Wickham ruled several times that there were no “specific allegations” in our Recall Petition Charges. The adequacy of the specificity of Charges made in our Recall Petition are bolstered by the fact that the attorney general was able to write a coherent synopsis for the court to consider (‘Ballot Synopsis For Recall Of Sam Reed As Secretary Of State Of Washington’)

New case law: Supreme Court of the State of Washington, ‘In re the matter of Recall Charges Attorney General’s against City of V Disjoins Mayor Donald Wasson et al’ (00-2-26376-3, September 25, 2002) “Pine’s failure to satisfy the specificity requirements was also observed by the prosecutor tasked with developing the ballot synopsis. The prosecutor initially rejected the petition because it did not contain a concise statement of the charges.” (Pg 3)

2. If one Charge in the Recall Petition is found to be sufficient the recall can go forward

A. “Any one sufficient charge requires the holding of a recall election.” State ex re Citizens Attorney General’s against Mandatory Bussing v Brooks (1972) 80 W2d 121, 492 P2d 536

B. “Where any one of charges sufficient, recall proceedings may be instituted. Morton v McDonald (1953) 41 W2d 889,252 P2d 577

3. Recall Charges not held to same standard as criminal

“Recall charges prepared pursuant to this section need not contain language as definite as that of a criminal information, but need only contain a statement of the acts complained of, with sufficient definiteness that the one charged may be able to meet them before the tribunal of the people. Danielson v Raymondville (1967) 72 W2d 854, 435 P2d 963

V. New Facts


1. King County Knew About No Signature On File ballots

King County knew about the No Signature On File (NSOF) ballots and had already tried to obtain valid signatures for all of these voters before and immediately after the General Election.


Memo from Travis Elsom Wednesday November 3, 2004, calling the ballots a newly discovered “mistake” was not true. Reed based his testimony in court, to allow these ballots in, on erroneous evidence. (Exhibit 1 - Rossi for Governor Press Release 2/15/05)

2. The number of illegal votes and the number of votes King County has yet to reconcile continue to grow

A. “1,108 illegal felon voters. and counting

Bellevue, WA - So far the Dino Rossi campaign has found 1,108 felons it
believes voted illegally in the 2004 election. In documents that will be made available to state Democratic
Party attorneys as part of the fact-finding discovery process, the Rossi campaign will provide documentation on the illegal felon votes it has found so far. In addition to the 1,108 illegal felon votes, King County has been unable to reconcile votes from the 2004 election, and cannot match more than 2,000 votes with voters. Also, the Rossi campaign found a total of 45 votes statewide cast on behalf of deceased persons, 10 votes cast by people who voted more than once in Washington, and five votes cast by people who voted in Washington and another state.” (Exhibit 2 - Rossi Press Release February 22, 2005)

B. “We are continuing to monitor the discrepancies in King County. Secretary Reed has dedicated staff to investigate the problems there.” (Exhibit 3 - January 5, 2005 email from Mary Gould, Secretary of State’s Office to: Ralph Reneson)

3. Secretary Reed acknowledges he has power to ensure elections are administered according to law

“If the court decides to vacate the [governors] office, and a new election occurs, I will do everything in my power to ensure that the election is fairly administered under Washington State law and election rules.” (Exhibit 4 - Sam Reed email to Susan Benson, February 20 2005)

4. Secretary Reed places importance on canvassing to catch and correct errors but accepted incomplete abstracts from counties, specifically abstracts that were missing the narrative that would document errors and how they were reconciled

Jack, Tenino: As I understand it, anyone can walk into a polling place and request a provisional ballot. What prevents someone from going to several different polling places and voting?

Reed: Nothing prevents that, but they all end up back at the Courthouse, and when the staff is checking provisional ballots, they check the person's record that a vote has been submitted. So you couldn't come in multiple times. When I was Thurston County Auditor I turned in several names to the prosecutor's office of people that tried multiple voting. That's a crime and we would catch them.
(Exhibit 5 - The Olympian February 15, 2005 Transcript: Chat with Secretary of State Sam Reed)

5. Secretary Reed states most election errors about illegal votes did not surface until After December 30, 2004. This is patently false and is a matter of public record

Bill, Issaquah: Why did you certify a gubernatorial election that was so obviously and significantly flawed? And why, in the wake of Florida 2000, did you not implement statewide election reforms that would have minimized, if not prevented, the problems seen there and that surfaced, in significant numbers, in Washington
in 2004?

Reed: First place, most of the issues about illegal votes, came out after the certification in December, but our Washington State Constitution was written by populists who trusted their local officials and distrusted central authority, so the Constitution says the elections will be certified at the local level and that the Secretary of State shall -- not may, shall -- do the same to the Legislature. In the process, the Secretary of State is not in a position to make a decision on the certification. (Exhibit 5 - The Olympian February 15, 2005Transcript)

6. Secretary Reed says his office always requires counties to balance number of ballots cast with number of ballots counted and rejected but accepted King County’s abstract with at least 1,800 more votes than voters

Vicky, Federal Way: Do you believe that we should have a law requiring precincts, counties and the entire state to reconcile the number of ballot so that the number of participating voters matches the number of cast ballots?

Reed: Yes. The Secretary of State's office always does require they balance the number of ballots cast with the number counted and rejected. That's very important for the integrity of the election, to avoid ballot box stuffing or ditching ballots. When we conduct audits, we look for that and have cited counties for that.

We are still looking at King County about that. We are looking at how serious the problems could be. Because the confusion in King County is the fact that they can't match these ballots with their voter registration list and those they've credited with voting, and that's a separate issue from the last question asked. That's what we require.” . (Exhibit 5 - The Olympian February 15, 2005 Transcript)

VI. Conclusion

For these reasons the court should grant our request for reconsideration. This brief is supported by the Motion and the Declaration of Petitioners in Re: the Reconsideration of the Recall of Sam Reed.

February 27, 2005 4:33 PM  
Blogger recallreed blog said...

Final Round EN BANC Hearing by the Supreme Court.


At 7:42 AM, Micajah said...
I'll try for the third time. Since you allow the posting of comments on this blog, I figure there's a slim chance that you read them.

What law gives the secretary of state the authority and responsibility to "certify" the election of a governor?

I notice that in numbers 7 and 8 of your petition, there is a difference other than the wording and subject of the two. One cites a statute which gave the SecState responsibility and authority to issue regulations, but the other cites no law whatsoever:

7. Failed to perform rule making duties detailed in RCW 29A.O4.610.
8. Certified the November 2, 2004 election knowing that election laws and regulations had been violated.


What law do you think gives the secretary of state the authority and responsibility to "certify" the election of a governor?

October 02, 2005 10:13 AM  

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