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 06, 2005

What in the Sam Hill case applies?

In Hill v. Howell, 70 Wash. 603, 127 Pac. 211 (1912), the supreme court made some statements which might be of precedential value in the current gubernatorial election contest – and at least one statement which should not be treated as a controlling precedent.

Quite a bit of attention has been given to the court’s statement that a questioned vote must be treated as a legitimate vote, if the court cannot determine from the evidence for which candidate the vote was cast.

The particular vote in the Hill case was not an “illegal vote” as that term is used in RCW 29A.68.020(5), RCW 29A.68.090, RCW 29A.68.100, and RCW 29A.68.110.

It was a vote cast by a qualified, eligible voter who voted only once.

The court did not even hold that it was an illegal vote in any sense of that term.

Whatever might be made of the court’s statement, it cannot properly be relied upon as a controlling precedent in an election contest when interpreting the meaning of the phrase “illegal votes” in current statutes.

Sam B. Hill contested the result of a primary election at which he lost to a candidate named R. S. Steiner in his bid to be a candidate for a nonpartisan position on the superior court during the ensuing general election.

Steiner’s vote total was five votes more than that of Hill.

The supreme court directed that a commissioner be appointed to inquire into the facts and submit a report to the court.

The commissioner’s findings of fact, as adopted by the supreme court, reduced Steiner’s margin of victory to two votes. One man who would have voted for Hill was improperly denied the right to vote when the polling place was closed earlier than provided by law, so Hill’s total was increased by one vote as a remedy. Two men who were not qualified to vote because they were illiterate had voted for Steiner, so their two votes were subtracted from Steiner’s total.

One man’s vote was cast under irregular circumstances, which led to this statement by the court:

It is clear that there was but one vote that can be said to be irregular that actually got into the ballot box, namely, the vote of elector Tapley. But neither the findings of fact, nor the affidavit made by Tapley in support of the application for the writ of mandamus, although the affidavit sets forth the facts fully, show for whom the elector voted. If this was an illegal vote it was proper to show for whom the elector voted, and since the fact [pg. 611] is not shown, it must be treated between the parties as a legitimate vote. [Emphasis added.]
Note that the court didn’t even hold that Tapley’s vote was an illegal vote. Instead, the court stated, “there was but one vote that can be said to be irregular,” and “If this was an illegal vote....”

The findings of fact quoted by the court on page 606 show that the only real question regarding Tapley’s ballot was whether it had been altered by the lone precinct official between the time Tapley departed from the polling place and the time the other two precinct officials returned from their lunch break:

There is in the County of Grant a precinct named Beverly, at which on primary election day the polls, which were in charge of E.R. Sollberg, as inspector, and Mack Morrison and . . . Broderick as judges, were held at the school house in said precinct, and were opened about 10 a.m. of that day, and up to the noon hour about four ballots had been cast. At the noon hour all three of the election officers locked the door and left the building for lunch, leaving the ballot box on the desk in the school house. Said Mack Morrison was away during the noon hour about half an hour, during most of which time he could see the polling place. He returned to the polling place, and about an hour after doing so the other election officers arrived, and the polls were kept open thereafter until about five thirty to six p.m., at which time they were closed, and the count of the votes completed about seven to seven thirty p.m., at which time the election officers left the polling place. Upon the return after noon of election officers Sollberg and Broderick, officer Morrison being already there, Morrison picked up a ballot saying it was the ballot of one Tapley, and Sollberg, who did not see Tapley that day, put that ballot into the ballot box. [Ellipsis points in original; emphasis added.]
Since only one precinct official had been present when Tapley cast his ballot, and since that official had Tapley’s ballot in his sole possession until the return of the other two officials, the casting of that ballot had been irregular. No other election official was present as required to ensure the integrity of the election with regard to that one ballot.

There was no question raised about the fact that Tapley was a qualified, eligible voter who voted only once; but there was apparently no way to know, except from the testimony of the lone election official, whether Tapley’s ballot – as he had marked it – was placed into the ballot box.

If the evidence had shown that Tapley voted for either Hill or Steiner and that his ballot wasn’t altered by the lone precinct official, then the vote totals would have remained the same as the official returns.

If, instead, the evidence had shown that the lone precinct official altered Tapley’s vote to make it appear he voted for Hill, then Hill’s vote total would have been reduced by one vote and Steiner’s total would have been increased by one – making Steiner’s margin of victory greater.

If, on the other hand, the evidence had shown that Tapley’s vote had been altered to make it appear to be a vote for Steiner, then Hill’s total would have been increased by one and Steiner’s total would have been reduced by one – resulting in a tie in the election result.

So, there was a possibility that Tapley’s vote could have affected the outcome, changing it from a victory for Steiner to a tie – but there was no evidence which indicated that Tapley’s ballot had been altered in any way.

Under such circumstances, the court should simply have found that the vote must be treated as a legitimate vote – not because it couldn’t be attributed to one candidate or the other, but because there was neither evidence tending to show that it was an illegitimate vote nor good reason to reject all the ballots from that precinct based on the presence of this one questioned ballot.

Then, the court would have been left with the same question it had set out to answer with regard to the votes cast in the Beverly precinct. Hill requested that all the votes be rejected, and the court needed to decide whether to grant that relief.

Note that the statement about Tapley’s vote was made in the context of deciding whether to grant the requested relief. The court stated at pages 610 – 611:

Turning to the immediate question, it seems to us that there is no reason to reject the returns made from Beverly precinct in their entirety. It is clear that there was but one vote that can be said to be irregular that actually got into the ballot box, namely, the vote of elector Tapley. But neither the findings of fact, nor the affidavit made by Tapley in support of the application for the writ of mandamus, although the affidavit sets forth the facts fully, show for whom the elector voted. If this was an illegal vote it was proper to show for whom the elector voted, and since the fact [pg. 611] is not shown, it must be treated between the parties as a legitimate vote. Neither of the candidates were responsible for the manner in which the vote got into the ballot box, and both being innocent of wrongdoing, it would be an injustice to charge the error to either of them. [Emphasis added.]

The court went on to state on page 611 that there was no other evidence tending to show that the Beverly precinct ballots were of questionable validity. In fact, the evidence tended to show that no one had tampered with the ballot box or its contents:

But counsel argue that the vote of the precinct ought to be rejected because of the fact that the polls were closed for the noon hour, without any guard over the ballot boxes. But it is not shown that harm resulted from this fact. The door of the building in which the ballot boxes were left was locked during the interim, and there is absolutely no proof that the ballot boxes were in any manner disturbed. On the contrary, proofs or inferences are all the other way. By the statute, poll lists are required to be kept by the election officers, and the returns of the election should show a name of an elector for each ballot in the ballot box. There is no claim that there was any discrepancy in the returns in this respect, and this fact precludes the idea that the ballot boxes were tampered with during the absence of the election officers. [Emphasis added to point out the age of the common sense idea that the number of signatures on the poll book should match the number of ballots in the box – as a means of ensuring the integrity of the election.]

The court, at pages 612–613, quoted with approval a passage in an encyclopedia of laws which stated how to handle a request to reject the votes from an entire precinct:

"Where an election appears to have been fairly and honestly conducted, it will not be invalidated by mere irregularities which are not shown to have affected the result, for in the absence of fraud the courts are disposed to give effect to elections when possible. And it has even been held that gross irregularities not amounting to fraud do not vitiate an election. Where the legislature declares a certain irregularity in election procedure to be fatal to the validity of the returns, the court will effectuate that command. And while the conduct of election officers may, although actual fraud be not apparent, amount to such gross negligence and such a disregard of their official duties as to render their return unintelligible or unworthy of credence. But the power to throw out an entire division is one which ought to be exercised with the greatest care and only under circumstances which demonstrate beyond all reasonable doubt that the disregard of the law has been fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and [page 613] what are unlawful, or to arrive at any certain result whatever, or where the great body of the voters have been prevented by violence, intimidation, and threats from exercising their franchise." 15 Cyc. 372.

Clearly, the circumstances in the Beverly precinct didn’t involve such disregard by the election officials for their duties as to justify rejecting all the votes from that precinct. One vote that might have been altered – but was not shown to have been altered – couldn’t reasonably justify such a drastic remedy.

21 Comments:

Blogger Torrid said...

Doesn't this section that you emphasized twice

"If this was an illegal vote it was proper to show for whom the elector voted, and since the fact [pg. 611] is not shown, it must be treated between the parties as a legitimate vote."

say in no uncertain terms that an illegal vote is presumed legitimate until shown who the vote was for?

Whether the vote in question in Hill was regular or not, the wording seems quite clear that had it been questioned, the beneficiary of the vote would need to be identified, else it be presumed legitimate.

And your link to the cite doesn't work, unfortunately.

February 07, 2005 9:45 AM  
Blogger Micajah said...

The point I'm trying to make is that the court's opinion is not the controlling precedent, no matter what you interpret that sentence to mean.

The reason I quoted it twice was to show first what the court said in the context of dealing with Tapley's vote and second what the court was deciding at the time -- that is, whether to grant the relief requested and reject all the votes from Beverly precinct.

As for the link to the Hill opinion, I just tried it before starting to write this comment, and it worked just fine. I don't understand why you would get a different result when you clicked the hyperlink. (Got any idea? I don't know much about blogging software, so when it works for me and not for you, I'm stumped.)

February 07, 2005 11:06 AM  
Blogger chew_2 said...

Micajah,

Judge Bridges has made statements indicating that the Republicans will have to show with respect to the alleged illegal votes, as required by 29A.68.110, that it appears that Gregoire would not have won without the illegal votes cast in her favor.

The question is how the Republicans can meet this burden, if they cannot show directly for whom the illegal votes were cast. Can they apportion votes between Rossi and Gregoire based on some formula? There are many arguments that suggest no they cannot. The Howell case is one of them. It stands for the rule that if you can't tell for whom an illegal vote was cast then you have to treat it as legal. That is you can't do an apportionment and assign as an illegal vote to one of the candidates based on some formula.

As the Howell said: "If this was an illegal vote it was proper to show for whom the elector voted, and since the fact [pg. 611] is not shown, it must be treated between the parties as a legitimate vote."


Strictly speaking the Howell statement is dicta, since there was no legal finding by the court that the vote in question was in fact illegal. The court assumed for the sake of argument it was illegal. Nevertheless, it is my recollection of the law (I was a lawyer once) that dicta is controlling in the absence of a more direct holding by the Supreme Court on point. Certainly, the "illegal" vote in Howell could meet the broad definition of an illegal vote stated in Foulkes, "a vote not cast in the manner required by law".

So I think it unlikely that Judge Bridges will permit an apportionment of illegal votes.

What's not clear to me yet, since we haven't seen his ruling, is whether Judge Bridges thinks it is permissible to overturn the election on error or misconduct by election officials that does not involve illegal votes, and if so what standard he might apply.

February 07, 2005 12:57 PM  
Blogger north clark county said...

There are two things that struck me in Hill. First is within the extended quote in Micjah's original post from 15 Cyc. 372: "And while the conduct of election officers may, although actual fraud be not apparent, amount to such gross negligence and such a disregard of their official duties as to render their return unintelligible or unworthy of credence." This says that there is a threshhold where conduct of elections officials rises to the point that "the disregard of the law has been fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful...". Certainly, "the power to throw out an entire division is one which ought to be exercised with the greatest care", but there is some point at which malconduct (RCW 29A.68.070, .080) is such that the choice to annul becomes apparent.

The same source, 15 Cyc. 372, also states that "It is a rule of law adopted by almost all of the courts that the entire vote of an election or of a precinct will not be rejected, where it is possible to ascertain and eliminate the fraudulent vote." This tells me that it is permissable to post-qualify provisional ballots that were inserted directly into the sea of ballots before verification. 134 P. 868 38 Okla. 671.

The Hill quote that gives concern is not from law, but from a book on constitutional law.
"An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future." Cooley's Con. Lim. (7th ed.), 934.

This indicates that the hurdle in an election challenge must be very high, as it should be. Ultimately, it somewhere between "gross negligence and such a disregard of their official duties" and "greater security against the like irregularities and wrongs in the future". It will become "I don't know how to define it, but I'll know it when I see it." However, Foulkes and Gold Bar show that the hurdle can be crossed.

There is one interesting point from Cooley's. "...it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, ...". This goes to the question of whether it serves any good purpose to receive oral evidence of how the illegal voters cast their vote. Can a voter be compelled to swear under oath how they voted? The answer to this must be "No". The threat of prosecution or contempt cannot be held to violate the sanctity of ballot secrecy. On the other hand, the voter could volunteer to unmask their vote. But what is the incentive for them to be truthful. If they state a truthful answer, their vote for their chosen candidate is taken away. If they state the opposite of how they voted, perjury can never be proven, and they remove a vote from their candidate's opposition, thereby, in effect, casting two votes for their candidate.

Hill conveys that introducing newspapers reports as to how individuals voted should not be used as evidence. "With reference to the claim [by a bartender] that Hattie Cooper voted for candidate Steiner in Waterville precinct, we think there is no sufficient proof of the charge.

February 07, 2005 2:13 PM  
Blogger Torrid said...

micajah--still doesn't work for me. Perhaps because I'm using Mozilla firefox, I dunno.

I'm still a little baffled at how you can say it won't be a controlling precedent, when at least from the retelling of the hearing, Bridges cited exactly what you reprint, as a controlling premise on how to treat unidentified illegal ballots.

NCC's lawbook citing adds more fuel to that fire, basically extrapolating the premise on illegal votes to elections in general: if you can't prove hanky panky or some level of screwiness that renders the entire contest in confusion, it's best to let things stand as they were.

February 07, 2005 3:57 PM  
Blogger north clark county said...

tj,
It's not Firefox, cause that's what I use and I'm not having a problem. Try this: go to www.mrsc.org, there's a drop-down menu under the upper-left logo that says "Legal Resources", choose "Court Decisions". Go to "Advanced Search". Check the box next to "Supreme Court Territory Reports and Washington Reports" and search for "Hill Howell" in the "containing all these words:" box. Hopefully, it will be the second item returned.

February 07, 2005 4:28 PM  
Blogger Micajah said...

In addition to having some fun with the petitioner’s name, my intent in this entry was to show how the GOP can argue that the now famous statement in the Hill opinion about treating “illegal votes” as “legitimate” is not binding precedent which ought to control the Chelan County Superior Court Judge’s decision on the burden of proof. (I have to admit that I’m disappointed in the fact that no one remarked about my use of “what in the Sam Hill.” I thought it was at least worth a groan, if not a chuckle. I guess it’s a good thing I decided not to include the statement that the idea of protecting against fraud by matching the number of signatures in the poll book to the number of ballots in the box is “as old as the hills.” Permission to groan granted.)

If the Hill opinion did contribute significantly to a statement by the judge that the GOP must show for whom the “illegal votes” were cast, then the GOP needs to persuade the judge that Hill doesn’t control what the petitioners must prove. (From what I’ve read in the sparse news reports, the judge made some remark to the effect that he wasn’t yet deciding what burden of proof the petitioners must meet. The question may still be entirely open for the judge to decide, or it may be something that can be argued once the evidence has been presented despite any earlier statements by the judge during the motions stage of the trial.)

By my recollection, dicta in court opinions aren’t binding precedent. They may be persuasive, just as a good analysis in a treatise, encyclopedia of laws, or law review article may be persuasive – but they aren’t binding, so the superior court isn’t obligated to follow them in deciding the case at hand.

Here’s the definition in Webster’s New World College Dictionary (4th ed.): “dictum...2 Law a judge’s remark or observation on some point of law which is not essential to the question, hence not binding as a legal precedent.”

The vote cast by Tapley was not, in any sense of the term, an “illegal vote.” The court didn’t hold that it was an illegal vote, and the evidence recited in the opinion showed that it wasn’t an illegal vote. Thus, the court’s statement about how Tapley’s vote might be treated if it were an illegal vote is dictum – not binding precedent to be followed in lower courts in other cases.

There is good reason to avoid following dicta. When an issue isn’t essential to a decision in a case, the parties don’t ordinarily prepare to present evidence or argument regarding it. Look at the Hill case as an example. Tapley’s affidavit covered all the facts the commissioner and the parties thought to be relevant – but didn’t say for whom he voted. Clearly, no one thought his vote was “illegal,” but they did recognize that it was cast under circumstances which raised a question about its validity. Having three precinct officials present was a measure intended to protect the integrity of the election, yet here was a ballot which was cast when only one was present. Which candidate Tapley voted for was irrelevant since there was no evidence indicating that the absence of two officials caused any problem worthy of note, so Tapley wasn’t asked.

Rather than make a statement about how Tapley’s vote might have been treated if it had been something it was not, the court merely needed to hold as it did – the absence of two of the three officials wasn’t an irregularity that required rejecting the precinct’s votes, and the total absence of any evidence of an alteration of Tapley’s ballot (or substitution of another for it) meant that there was no factual basis for treating his vote as anything other than a legitimate vote.

If the Hill opinion’s statement about the treatment required when “illegal votes” cannot be attributed to one candidate or another with any degree of certainty isn’t binding precedent, then the GOP has a better chance of persuading the judge to allow some reasonable burden of proof (as opposed to an impossible or impracticable burden).

Torridjoe: Here’s the URL for the Hill opinion. You should be able to copy and paste it into your browser’s address bar. Just be sure to delete the space I put before “070” to force a line break so it will work.
http://www.mrsc.org/nxt/gateway.dll/wareports/wareportsstate/ 070washreport/070washreport0603.htm

February 07, 2005 4:47 PM  
Blogger north clark county said...

"chuckle"

February 07, 2005 4:50 PM  
Blogger north clark county said...

"The question may still be entirely open for the judge to decide..."
I tend to think that judge is open-minded and that he is trying to get the Rs to beef up their proof so that it makes his findings of fact better, meaning his conclusions of law would be less likely to be overturned.

Webster’s New World College DictionaryHere's another source "http://dictionary.law.com/"

February 07, 2005 5:19 PM  
Blogger chew_2 said...

Micajah,

I've always been leary about legal arguments like yours based on dictionary definitions. It's just plain lazy when you could look up the rule in the case law. That said, I agree with you that the dicta in Howell is not binding precedent. But in the absence of contrary authority for a different rule, it is highly persuasive. I haven't seen you or the GOP proposing an alternative rule, supported by the statutes or case law.

One similarity between Howell and the present case is that the Court in Howell suggested that the challenger must meet the burden of showing that winner would not have won but for the errors and misconduct. This standard was set forth in the predecessor statute to what is now 29A.68.070 and is applicable to the present case. In looking at the illegal votes, the Court made a dual inquiry. Whether the illegal votes )and other errors) were sufficient to reject all the returns from the precinct as you pointed out, but ALSO whether any of the illegal votes, or the votes of those wrongly prevented from voting, would have changed the outcome. It is in the latter context that the Court's statment that if it is unknown for whom the illegal vote was cast then the vote must be considered legal, is on point to the current challenge since that is what is at issue here, since we don't know for whom those illegal votes were cast.

The fact that the Judge has not ruled on the burden of proof issue says noting aoubt leaving the Howell rule open. The Dems are arguing for a "clear and convincing" burden of proof and the GOP are arguing for a "preponderance of the evidence" standard. This has nothing to do with how the illegal votes are to be treated under Howell or 29A.68.110 or .070.

But as a procedural matter, I agree that it is unlikely the judge has made any specific rulings on these matters since they should be addressed later at trial. However, from the news reports and bloggers he has made statements which signal how he will rule and these indicate he will follow .110 and .070.

February 07, 2005 8:44 PM  
Blogger north clark county said...

chew2:
First, a nit. "...or the votes of those wrongly prevented from voting..." Would that this was the case (military ballots), but this will not be an issue in this case, based on the judge's ruling on equal protection.

Next, "...if it is unknown for whom the illegal vote was cast then the vote must be considered legal...", I still don't understand how it can be known for whom the illegal vote was cast. Ballots are secret. RCW 29A.08.161. As I stated above, the court should not be able to compel disclosure of the vote, neither should it. See Cooley's Con. Lim. (7th ed.), 934 ("...it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, ...").

I agree the judge will follow .110 and .070, however I think we are all speculating the direction that ruling will take (but that's what makes this all the more intriguing). As far as I can tell, we are plowing new ground without much precedence (at least in Washington case law). That's why we are extrapolating from Foulkes, Becker, Gold Bar, and Hill. I use the term "extrapolating" advisedly, because none of these cases have really addressed the issue in thise case.

Foulkes dealt with ballots altered between the first and second counts. Becker dealt with canvassing confict-of-interest. Gold Bar dealt with non-resident voters. Hill dealt with some illegal votes, but there weren't enough to ultimately affect the election after disposing with some questioned votes. However, each case offers partial applicability. For example, Foulkes and Gold Bar show that there is a point at which election contests can succeed, each without identifying for whom the illegal votes were cast.

February 07, 2005 11:46 PM  
Blogger chew_2 said...

North Clark,

1. You said: " I still don't understand how it can be known for whom the illegal vote was cast."

If it can't be known, then the Republicans lose, unless the judge permits an allocation based on some formula. I agree, that the Republicans will not be able to subpoena illegal voters to see how they voted. However, I should note that in many of the cases, including Foulkes and Howell, there was in fact evidence of for whom some of the illegal (or fraudulent) votes were cast, and the court inquired into whether those illegal votes changed the outcome. But if the challenger can't come up with that evidence he loses. It's too bad if it's hard or impossible to show how the illegal voters voted, because the law says you have to show the illegal votes changed the outcome.

2. I think you are dreaming if you think that.110 doesn't require the challenger to show for whom the illegal votes were cast. The plain language of the statute says that. Your only hope is that the words "appears" allows the judge to make some apportionment of those illegal votes between the candidates, based on some formula or other evidence. Similarly, any alleged errors or misconduct, not constituting illegal votes, will under .070 have to have caused the winner not to have in fact received the greatest number of votes. So you can't just allege errors, like the enhanced votes, or the alleged unaccounted overvotes, but you have to show they in fact benefited Gregoire over Rossi such that she did not receive the greatest number of votes.


3. The only way the GOP can prevail without showing that the illegal votes or errors benefited Gregoire over Rossi, is if the judge can find a way to ignore .070 or .110, or find an independent ground for a challenge (such as some broad undefined equitable power) that is not controlled by .070 or .110.

4. You say: "For example, Foulkes and Gold Bar show that there is a point at which election contests can succeed, each without identifying for whom the illegal votes were cast."

This is incorrect, although debatable. In Foulkes, the challenger showed that there were enough fraudulently altered ballots NAMING THE RECOUNT WINNER to have overcome the recount loser's original winning margin in the first count. So there was evidence of for whom the ballots were cast, and that it changed the outcome.

In Gold Bar, the case was just at the pleading stage. The challenger did not allege for whom the illegal votes were cast, but he wasn't requred to at the pleading stage, because .090 says you can get by with general allegations. The Court said he could proceed to trial based on those general allegations, but said nothing one way or the other about .110 which would have applied at trial.

5. There is one simple argument for why the Court won't make an apportionment of illegal votes based on some forumua. .110 says that it must "appear" that the illegal votes led to winners margin of victory. However, .050 says the judge may declare some other candidate the winner if it "appears" that he/she received the most legal votes. I would argue that the legislature meant the word "appears" to have the same meaning in these two sections. Can you imagine a judge awarding the election to Rossi based on some formula apportioning the illegal votes? No way. Similarly, he can't use an apportionment formula to invalidate an election. He will find that any allocation of illegal votes must be proved with certainty. A mathematical formula based on county or precinct vote won't be certain enough.

February 08, 2005 8:01 AM  
Blogger Micajah said...

chew2,

You are arguing for the acceptance of one way to interpret the words of the statutes, while I have argued another.

I don't think anyone is "dreaming."

Read this previous entry, in which I set out what I believe are the two ways to construe the statute that applies to "irregularity" or "improper conduct" as a basis for setting aside an election:

http://crokersack.blogspot.com/2005/01/it-doesnt-matter-for-whom-voterless.html

Granting that I have, since writing that entry, realized that Tapley's vote could have changed the outcome to a tie if there had been evidence that his ballot was altered (which there wasn't) -- I still believe the case law and the statutes haven't made it impossible or impracticable to prevail in an election contest.

You seem to have concluded that the laws enacted by our legislators have made it impossible or impracticable to prevail in all but the clearest case of specifically identifiable ballots which can be shown to have been altered or voted to benefit one of the candidates.

If you are right, then the legitimate votes of our citizens wouldn't determine the outcomes of our elections.

If our ballots don't decide important political questions, then there are two options: persuade legislators who have no regard for the law to change the law, or start using something other than ballots to decide such questions.

Faced with that choice, I expect the courts to give effect to the constitution and laws which purportedly preserve our ability to decide such things with ballots. I don't expect the courts to conclude that previous legislators were so corrupt as to have removed any reasonable possibility of correcting errors which occurred as a result of neglect or misconduct by the very people we have charged with the responsibility of ensuring the integrity of our elections.

February 08, 2005 9:20 AM  
Blogger chew_2 said...

Micajah,

Your legal argument depends on the court ignoring .110 altogether, and interpreting .070 so it has no effect. Pure judicial activism. If you think the legislature made it impossible or too difficult to overturn an election, then your remedy is to to change the statutes not ignore the plain language of the statutes based on strained interpretations of the case law and noble appeals to justice and the will of the people. If the election is overturned the valid votes of millions of voters will be displaced. The legislature wanted to make it hard to do this.



I read your cited argument, and I don't know if you want to debate it here. Frankly it's a little bit hard for me to follow.

But one think you don't address is this. .110 applies to illegal votes. .070 applies to errors and misconduct by election officials. You ignore .110's requirement that the challenger must show that it "appears" that the illegal votes in fact changed the outcome, and talk only generally of .070 and Foulkes. Are you claiming that you can ignore .110 when it comes to invalidating an election based on illegal votes, such as those by felons. If so, you're wrong.

Perhaps, you are arguing that if election errors permitted the illegal votes then you can independently evaluate those illegal votes as an error under .070, two bites at the apple so to speak. That's an incredibly strained attempt to get around .110, and it won't fly.

But most importantly .070 requires one to show that the errors or misconduct "procured" or caused in fact one to be declared a winner even though they didn't receive the most votes. Not that the error "could have", but did in fact cause the erroneous result. The challenger has to make a showing that the error, e.g. the unvalidated provisional votes, benefited Gregoire over Rossi. You claim this is an impossible standard, but don't seem to propose one of your own. What precisely are you claiming the Republicans need to show?

Your reliance on Foulkes for some unspecified broader standard is alwo wrong. In Foulkes, the original winner of the election won by some 45 votes. On the recount the other guy (recount winner) won by some 79 (?). It was shown that at least 49 votes had been fraudulently altered during the recount to NAME the recount winner. This was enough to erase the original winners margin of victory and thus it was enough to change the original result of the election. In Foulkes the challenger showed for whom the fraudulent votes were cast and that it was enough to change the election result. Rossi will have to do the same here. What was not shown in Foulkes was an additional 79 or so fraudulently altered ballots that would have wiped out the recount winner's margin of victory on the recount. Therefore the court said it couldn't adjudge the orignal winner as the victor over the recount winner.

There are many other grounds to challenge Foulkes' applicability to the present case, such as the fact that it involved a claim of fraud, not simple error, and that, in a local election challenge, it relied on too broad a claim of equitable power not applicable to the lesilatively delegated authority in the present case to decide a statewide election. And of course the later Becker case. But I won't get into those here.

February 08, 2005 10:58 AM  
Blogger chew_2 said...

Micajah,

PS. I just read your entry below. I gather you're almost conceding that the GOP won't be able to prove any illegal votes changed the outcome.

You said:

"It seems obvious that the legislature has made it difficult, if not practically impossible, to prevail in an election contest based solely on “illegal votes.”

So, it looks like we agree on this issue.

I gather you are resting your case on the "error" and "misconduct" grounds of .011, not illegal votes. I agree that this is probably the GOP's best chance. But as discussed above, .070 requires that any error or misconduct be such as to have changed the election result.

February 08, 2005 2:08 PM  
Blogger Micajah said...

chew2,

Admittedly, it is difficult to follow what I'm saying when it's spread over several entries.

I think, despite my clumsiness in putting it all together, you are getting the gist of what I'm saying.

I believe the court will narrowly interpret the meaning of "illegal votes," just as the courts in Foulkes and Gold Bar Citizens did, since that statute with the "murky" legislative history appears to place a nearly impossible burden on the petitioner. (By "murky," the Foulkes court probably was implying that the statute appeared to be an incredibly stupid thing to do, if the legislature wanted election outcomes to be decided by the legitimate votes of eligible voters. In the absence of legislative history to shed light on their intent, the court politely referred only to the legislative history as "murky," rather than the thinking of the people who enacted that law.)

When you state "[i]f the election is overturned the valid votes of millions of voters will be displaced," I agree that this is a reason for making sure that contested elections aren't decided willy-nilly; however I also think that allowing illegitimate votes to decide the outcome likewise nullifies the valid votes of all those whose vote was cast for the candidate who appeared to lose.

Going too far in one direction makes it too easy to set aside elections.

Going too far in the other direction makes it too easy for invalid votes to displace or nullify the legitimate votes of eligible voters.

What I have been trying to do is find a way to interpret the existing laws so as to strike what I think is the correct point between those two extremes.

If it cannot be done, then obviously the law needs to be changed.

We'll see how the courts wrestle with the same thing, since I assume they will interpret the laws with the thought in mind that the laws are supposed to make sense and allow a just outcome. Taking what appears to be a literal approach and thereby rendering the laws to be either nonsense or unjust wouldn't be what I expect the courts to do.

The statute that deals with "irregularity" or "improper conduct" by those charged with ensuring the integrity of our elections presents what is, to me, a chance for the court to go in one of two directions.

I discussed the ambiguity in that statute's use of the words "such as to procure" in this earlier entry on Jan. 29th, as I argued for a "could have caused" rather than "caused" interpretation of those words:

http://crokersack.blogspot.com/2005/01/it-doesnt-matter-for-whom-voterless.html

February 08, 2005 2:46 PM  
Blogger chew_2 said...

Micajah,

Ok I've read your arguments a little more closely now.

1. You argue based on Howell that maybe the Court has the power to disallow all the votes from a precinct or even a county if there are enough "illegal" votes in that county, even if we don't know for whom they were cast. Talk about disenfranchising a whole lot of voters. That statement in Howell was pure dicta, and moreover cited absolutely no authority which had ever permitted such a remedy. More importantly the pertinant election statute, 011 does not authorize such a remedy. That would be a terrible remedy.

2. I gather you are now arguing that, if the court defines illegal votes narrowly, it can invalidate an election under .070 on the basis of an error OTHER THAN ILLEGAL VOTES, if that error "could have" caused the wrong party to be declared the winner. That is you are no longer arguing for the "could have" standard for illegal votes. You were a little confusing on this since you originally argued this standard applied to illegal votes also. My only response to this is to say that your reading of .070 is an incredibly strained and farfetched reading of the statutory language, but I'm not in the mood to parse the language right now, so I'll just quote the statute:
"
RCW 29A.68.070
Misconduct of board -- Irregularity material to result.
No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes."

One has to wonder why the legislature would have required a challenger to prove that illegal votes ACTUALLY made a difference under .110, but that with respect to an error by an election official that similarly resulted in improper votes, the challenger need only show under .070 that it COULD HAVE made a difference, a far far easier standard. As you state yourself you are interpreting the statute so as to afford the remedy you want.

3. As a policy matter do you really want an election law that allows one to invalidate an election based on errors which were not shown to have **actually** affected the outcome as between the candidates. In general that's way too weak a standard for me and would result in too many overturned elections, at a large cost to the state and counties which have to hold these elections. I can see some loopholes in the statutes where it appears to be difficult to provide an election remedy. I believe the election laws could definitely be improved, and that we should go to the legislature to do so. I don't want to hand that power over to the courts.

February 08, 2005 4:53 PM  
Blogger north clark county said...

I don't believe that .110 can be read in such a way as to pose an impossible burden on the party bringing the challenge. If that were so, why allow election challenges at all. Yet chew2's rendering seems to be holding to that reading. Chew2, how can you explain the explain having a law that has the impossible standing of proving for whom the illegal votes benefited?

Let's take an situation where someone intent on altering the result of the election in an clearly illegal manner. Somehow this person gets their hands on some ballots, fills them out 75% for one candidate, 25% of the other, and inserts them into the sea of ballots. Clearly illegal activity. Now say that it comes to light that this occurred. The election loser brings a constest, but how could he/she prove how the illegal ballots were cast? How could your reading of .110 be applied?

February 08, 2005 5:54 PM  
Blogger chew_2 said...

North Clark County,

"Chew2, how can you explain the explain having a law that has the impossible standing of proving for whom the illegal votes benefited?"

First of all, its not impossible. There was evidence of how illegal votes were cast in quite a number of cases that I've read including Howell and Foulkes. In this case the GOP will be able to point to how some illegal voters had voted, but almost certainly not enough to overcome Gregoire's 129 vote margin.

More importantly, that's the way the statute was written. It states that you may contest an election on account of illegal votes (.011(5)), but you must be able to show that those illegal votes made a difference in the outcome (.110). Moreover, you must be able to list and indentify those illegal votes or you can't introduce evidence about them (.100). The statute was written as a whole. All these provisions, if my memory serves me, were in the original law.

So what is the clear idea behind this legislative scheme. We don't want to overturn an election, and hold a new election, on the basis of illegal votes unless those votes changed the outcome of the election. We don't want to overturn an election on just general allegations of illegality. Why? Because illegal votes might occur in many elections, but we don't want to hold a new election every time that occurs. It destroys finality and is expensive. So we'll only do it when the challenger can show the results would have been different.

This is a plausible purpose and scheme to me. Is it perfect? No. Could there be other schemes? Of course. The law could say that we'll overturn the election if the illegal votes make the results "uncertain", that's what the GOP wants. But that's not how the law was written.

What is your alternative. Just ignore .110, even though that's the law? What rule would you put in its place. That you don't have to present any evidence at all that the results would been different, so long as the number of illegal votes "could have" changed the result. What if all of the illegal votes were in a county that Rossi had won by a large margin, so it appeared more likely that a majority of the illegal votes were cast for Rossi and it was unlikely they would have changed the outcome. Should Rossi then be able to overturn the election on the basis of illegal votes just because they exceed Gregoire's margin of victory? In the absence of some evidence of how the illegal votes were cast its all speculation, and I don't think you should overturn an election based on speculation or uncertainty.

February 08, 2005 9:02 PM  
Blogger chew_2 said...

North Clark County,

PS, regarding your election fraud question. The statute isn't perfect, and may need to be amended to deal with certain frauds and errors. If there is fraud it could possibly be addressed through .011. It's not clear to me that your example should be addressed through the illegal vote provisions .020, even if they were amended to deal with your problem.

February 08, 2005 9:11 PM  
Blogger north clark county said...

chew_2:
There are some points that I can agree with you on.

"We don't want to overturn an election, and hold a new election, on the basis of illegal votes unless those votes changed the outcome of the election." This is clearly the premise of the contest law, designed to prevent frivilous contests.

"We don't want to overturn an election on just general allegations of illegality." Clearly this should never be the standard of any legal action.

To your question "Just ignore .110...", I must answer no. It's in the law, it's there for a purpose, and it must be considered equally with all the other provisions in law.

"In the absence of some evidence of how the illegal votes were cast its all speculation, and I don't think you should overturn an election based on speculation or uncertainty." I also agree. While it is possible the court may ultimately choose statistical apportionment, I don't think that it should speculate in this manner. There is no basis on which to conclude that a subset of ballots that are not randomly drawn from the whole will retain the same statistical characteristics of the whole. Illegal and improper votes are not a random sample of the legitimate ballot pool.

Having said all of this, I still believe that it isn't as cut and dried as you purport it to be. I do not believe this takes me across the line into judicial activism, either. I'm still thinking on all this, trying to put it together. It does make me appreciate some of the difficulties that judges face, though.

February 09, 2005 12:18 AM  

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