Croker Sack

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

Friday, May 06, 2005

Fold your tents and pack your gear

The petitioners in the contest of Washington's gubernatorial election may as well begin folding their tents and packing their gear. It's almost time to leave the field after a resounding defeat.

If this were a boxing match, the Democrats would be so far ahead on points that the Republicans would need a knockout in one of the last two rounds to win.

Unfortunately for those of us who would rather have a duly elected governor in office, the Republicans' lawyers have not shown the ability to win by a knockout at trial or on appeal.

It took a while to read the relatively short transcript of Judge Bridges' May 2 rulings posted by Stefan Sharkansky at Sound Politics. After each knockdown of the Republicans, I had to pace the floor to let the sickening effect of the sight of the beating they were taking dissipate.

The Republicans never submitted a written brief to the court to lay out their arguments for the appropriate standard of proof. Instead, Mr. Dale Foreman raised the issue in oral argument. The judge then ruled that "clear and convincing" is the standard, based on his understanding of the law without any effective advocacy by the Republicans. The judge even invited them to address the issue later, if they desired, since they had done nothing up to that point to even let him know they were seeking a decision on that issue.

The Republicans never submitted a written brief to the court to lay out their arguments on the question whether the evidence must show that Gregoire's apparent margin of victory was caused by errors, neglect, irregularities, or misconduct by elections officials. The judge finally went ahead on his own and stated his understanding of the law: Causation must be shown, and it isn't good enough to show that the number of votes affected by errors exceeded Gregoire's apparent margin of victory. The judge believed it necessary to say something, because he had seen the "theme" of their apparent belief reflected in some of their written submissions, although they had never bothered to research and brief the issue.

The Republicans didn't submit evidence or argument to demonstrate the validity of the "proportional analysis" evidence they intend to offer in an effort to show how illegal votes affected the outcome. The judge didn't grant the Democrats' motion to exclude that evidence, but it may be excluded if -- at a subsequent "Frye hearing" -- the Republicans cannot show that it is based on a generally accepted theory and is sufficiently reliable to be accepted into evidence. In short, the judge didn't rule that it is admissible -- he just didn't yet decide to exclude it.

The Republicans didn't educate the judge on the law and process regarding the records made during the election and canvassing process to "credit" voters with having participated in the election. As a result, the judge ruled that records reflecting the crediting of voters don't even have anything to do with ensuring the authenticity of election results -- when in fact they are an essential part of ensuring just that.

If the Republicans intend to offer any canvassing records showing errors affecting the credibility of King County's official returns, they have allowed the judge to conclude that the relevant records have nothing to do with the authenticity of the election. Having done nothing to advocate their position before the judge decided what he thought on his own, they will need to persuade the judge to change his mind about the meaning and purpose of those records.

If the performance of the Republicans' attorneys in this case continues in this vein, then Rossi ought to lose the contest.

Anyone who cannot assemble a competent legal team and present persuasive arguments before the judge is forced to decide crucial issues on his own without the benefit of well researched and written briefs from counsel isn't competent to be governor.


Blogger Splatter said...

I hope..really hope you are wrong. But I have the feeling you and Putin are right..


"In Russia, the president is elected through the direct vote of the whole population. That might be even more democratic," Putin says. "And you have other problems in your elections," he tells Wallace. "Four years ago your presidential election was decided by the court. The judicial system was brought into it. But we're not going to poke our noses into your democratic system because that's up to the American people."


May 07, 2005 12:06 AM  
Blogger chew_2 said...


Some comments:

My recollection is that both the GOP and Dem's briefed the burden of proof issue at the first hearing. I know the GOP pointed to Foulkes and it's preponderance standard, and I seem to recall the Dem's pointed to the Statute (requiring any challenge to a registration to be shown by clear and convincing evidence) cited by Bridges in his most recent ruling. At the most recent hearing, both the GOP and Dems made motions regarding what needed to be proved to show an illegal felon vote, and apparently the GOP at oral argument raised the preponderance vs. clear and convincing issue.

Also my recollection was that in the first hearing Bridges refused to rule formally on the issue, but stated verbally that the GOP would have to show that both the illegal votes and any misconduct would have changed the outcome of the election. The GOP continued to argue in their brief for the supposed Foulkes standard that the invalid votes need only exceed the margin of victory. Bridges verbally chastised them for that. I think a little unfairly, since he hadn't formally ruled on it in the first hearing.

I haven't been following all the stuff over at Sound Politics, but I assume the 600+ (?) provisionals fed into the accuvote machines are still an issue as offfical neglect or misconduct. But that will yield fewer invalid votes because many of those provisionals were cst by valid voters.

The whole problem with the "excess ballots over voters" is, I think, a weaker grounds for challenge. The GOP will have to prove those were invalid votes, not just a crediting mistake. I think that will be hard to prove. Granted I haven't kept up with all the new info.

I also think the "invalid certification" argument will be difficult to make as an independent ground for overturning an election.

If there are underlying problems or mistakes in the vote count, the county auditor or official shouldn't withhold certification and thus invalidate an election on his own. The underlying problems and mistakes should properly be fully examined in an election contest.

May 07, 2005 11:28 PM  
Blogger Daniel Kirkdorffer said...

I think that one can safely conclude that Rossi and the Republicans were far more interested and focused on winning the battle in the court of opinion, rather than in a court of law.

Clearly the arguments that they used in the court of opinion, that could not hold together in a court of law, were intended to inflame the views of Washingtonians against Gregoire in an attempt to undermine her legitimacy and her governorship.

Unfortunately for Republicans Gregoire has proven to be adept in being effective in her office despite the backdrop and talk radio and blogosphere noise machine, and Washingtonians will have a number of years to see that she is a strong and resolute leader.

May 10, 2005 6:49 PM  

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