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, May 30, 2005

How does it look from the voters' point of view?

If the petitioners lose in Chelan County Superior Court, as seems probable, a successful appeal to the state supreme court would require more persuasive arguments than they have so far presented.

Under the rulings already stated by Judge Bridges in that court, Washington has no law which provides a remedy in the pending gubernatorial election contest.

The neglect, misconduct, and irregularities indicated by the evidence prove beyond cavil that no one was duly elected – but the legislature decided otherwise without determining whether the official returns were worthy of belief, and now the legislature’s choice of Gregoire cannot be proven to be the wrong choice.

The petitioners’ trial strategy was built around a belief that they need not prove that irregularities affected the election’s outcome, but – having never briefed the court on that argument – they were saddled at trial with the judge’s belief (stated on May 2) that they must prove that the outcome was affected.

They would have benefited from a ruling that the standard of proof is a preponderance of the evidence, rather than the more difficult standard of clear and convincing evidence. Having never briefed the court about which standard applies, they brought up the issue in oral argument on May 2 – and got an unfavorable ruling which required proof by clear and convincing evidence. (Perhaps the judge would limit that ruling to the proof needed to show that a particular vote was an illegal vote and would apply the less difficult standard to the ultimate question whether to set aside the election, but he has not hinted that it is so limited.)

Required to prove the outcome was affected, and to prove it by clear and convincing evidence, the petitioners hoped to prove it by using the proportional deduction remedy in a novel way – to prove how the illegal ballots were actually voted. The judge noted his concerns with the proffered evidence, read the law to the petitioners’ lawyers, and reserved ruling on the admissibility of the evidence. Unless the judge later admits the expert testimony into evidence, the petitioners will have no evidence tending to show that illegal votes affected the election’s outcome.

A Washington Supreme Court opinion issued in 1912 will likely play a major role in the outcome of the trial, therefore its meaning and applicability to the case at hand will be a crucial issue on appeal.

That case was Hill v. Howell, 70 Wash. 603, 127 Pac. 211 (1912).

Before getting into the excerpts from that opinion which are quoted below, consider the statement attributed to Justice Susan Owens of the Washington Supreme Court during consideration of an issue in the November 2004 election. According to the December 22, 2004, online edition of The Seattle Times, she stated:

At a hearing this morning before the high court, Republicans argued that a recount should be a mere retabulation, and that it was too late for counties to go back and correct errors.

Harry Korrell, a lawyer for the Republican Party, said counting those votes would cause rreparable harm, but justices questioned who would be hurt.

"You're looking at it from the point of view of the winner or the loser -- shouldn't we be looking at it from the point of view of the voter?" asked Justice Susan Owens.

Ruling within a few hours of hearing the case, the court unanimously said state law and previous court rulings specifically allow county canvassing boards to correct mistakes during a recount.

Keep in mind the idea of “looking at it from the point of view of the voter” when reading the Hill opinion, and note its focus on the candidates.

Hill dealt with a statute which was worded almost the same as RCW 29A.68.070, which establishes what needs to be proven to prevail in an election contest brought under RCW 29A.68.020(1), i.e., based on misconduct of the members of a precinct election board.

Judge Bridges stated on February 4 (page 29 of the transcript of his oral rulings): “With respect to misconduct, whether that misconduct falls in 020 or 011, I think the standard is 29A.68.070, and so I want to say that so you folks have some sense of what I think the ultimate standard of proof is and what the petitioners have to show.”

The judge has, then, decided to apply the statute to misconduct (and presumably neglect too) by “any election officer,” and not just to members of precinct election boards.

This excerpt (with emphasis added) from pages 608 – 609 of the Hill opinion shows that the statute being applied was essentially the same as RCW 29A.68.070, and shows that courts long ago construed the statute as authorizing a remedy only when there is proof that the outcome was affected (in the absence of an allegation and proof of fraud):

On the merits of the controversy, we are of the opinion that the petitioner has not shown sufficient cause to warrant us in setting aside the returns of the canvassing boards. With reference to general elections, it is provided by statute, Rem. & Bal. Code, SS 4942, that no irregularity or improper conduct in the proceeding of the board of judges, or any of them, shall be construed to amount to such malconduct as to annul or set aside any election, unless the irregularity or improper [pg. 609] conduct shall have been such as to procure the person whose right to the office may be contested to be declared duly elected when he had not received the highest number of legal votes.

Applying this provision of the statute to a case where the notice of an election published by the clerk of a school district notified the electors of the district that the polls would be open until 7 p.m. of the day of election instead of 8 p.m., as the statute required, this court said:

"Another reason for denying to the respondent any benefit of this mistake is, that his information contains no allegation that, had the polls been kept open an hour longer he would have been in any wise benefited by it. In all such cases there must appear some substantial reason why courts should interfere to overthrow an election, in the absence of any allegation of fraud, to the effect that, had there been a larger number of votes cast, the result would have been different." State ex rel. Bailey v. Smith, 4 Wash. 661, 30 Pac. 1064.

In Williams v. Shoudy, 12 Wash. 362, 41 Pac. 169, we held that a resolution calling for an election to be held between the hours of 9 a.m. and 7 p.m. did not avoid an election so held although the notice of election published specified that the election would be held between the hours of 9 a.m. and 6 p.m. In Seymour v. Tacoma, 6 Wash. 427, 33 Pac. 1059, we held that the posting of the notices of an election for twenty-six days preceding an election, whereas the law authorizing the election provided that such notices should be posted for thirty days did not vitiate the election in the absence of a showing that such irregularity in some way affected the result. Richards v. Klickitat County, 15 Wash. 509, 45 Pac. 647; State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. 39; Hesseltine v. Wilbur,29 Wash. 407, 69 Pac. 1094.

This excerpt (with emphasis added) from page 610 indicates the significance of the judge’s questions and Nicole Way’s answers regarding her knowledge and purpose when preparing the false Mail Ballot Report. Note also how the court focused on the absence of any indication that the candidates played any part in causing the irregularities.

It will be remembered that no charges of fraudulent conduct or willful misbehavior are made or proven against any of the officers of the election who were guilty of the irregular conduct found by the commissioner. It is conceded that they acted in the utmost good faith, and that their conduct was the result of ignorance on their part of the requirements of the election statute and not from any corrupt motive. It must be remembered, also, that the candidate Steiner was in no way responsible for the acts of these officers. On the contrary, he was as blameless in the matter as was candidate Hill; and since it is evident that many legal votes were cast for him in this precinct which will be denied him if these votes are rejected - sufficient to change the result in the particular case - common justice requires that these votes be rejected and be not counted only in case the exigencies of the matter admit of no other alternative.

The next paragraph on pages 610 – 611 contains the statement which the Democrats’ lawyers have argued in court more than once – that illegal votes don’t matter unless they can be shown to have been cast for one candidate or the other.

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.

Looking at the situation from the point of view of the candidates – and focusing on who won or lost – it may seem reasonable to treat illegal votes as irrelevant; but how does it look from the point of view of the voters?

As an aside for the benefit of all those who think voter crediting is a post-election exercise which has nothing to do with the authenticity of the election results, note that the importance of comparing the number of voters and ballots to identify the presence of illegitimate ballots is older than Hill. At page 611, the court stated (emphasis added):

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.

Although the petitioners’ lawyers seem not to know it (and have never to my knowledge cited any law to this effect in court, during a deposition, or in a brief), reconciling the numbers of absentee voters and absentee ballots is (and was) required by law – as is the reconciling of the numbers of polling place voters and ballots. Hiding King County's discrepancies from the canvassing board (and the public) and presenting false ballot reports to the board sabotaged the process established for the verification of the election returns and broke the law.

And, finally, the Hill opinion quoted a legal encyclopedia at pages 612 – 613. Judge Bridges mentioned this part of the Hill opinion on May 2, noting that it may allow for setting aside an election based on neglect and disregard for the laws to such an extent that the official returns aren’t worthy of belief.

"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. (Emphasis added.)

From the point of view of the voters who desire that the person installed in the governor’s office be duly elected – rather than caring only whether their preferred candidate was put in office – this last excerpt is the only one that seems to offer relief.

King County election officers’ disregard for the law and neglect in the performance of their legal duties hid material discrepancies discovered during the canvassing process from the canvassing board – leading to the board’s issuance of an official canvass report which was then cited by the legislature as a sufficient basis to declare that Gregoire was duly elected and to issue the certificate of election.

The presence of more than 900 illegal ballots in the polling place ballot boxes was hidden from the canvassing board through the silence of Bill Huennekens, the superintendent of elections for King County, and by the presentation to the board of a false Provisional Ballot Summary Report. An accurate report would have revealed that more than 900 provisional ballots had been issued but could not be accounted for. The board almost certainly would have asked whether they had been inserted into ballot boxes via the polling place Accuvote machines – and thus would have discovered that Huennekens and his subordinates knew already that this is precisely what happened.

The presence of more than 800 absentee ballots in the vote count for which there were no voters known to have cast them was hidden from the canvassing board by silence and the presentation of a false Mail Ballot Report.

The canvassing board was kept in the dark, and the legislature (despite the discrepancies revealed in the 10 days before the certificate of election was issued) chose to rely on the board’s official canvass report.

It’s all just water under the bridge, if looked at from the point of view of those who simply care who was declared the winner.

Is that the only point of view that matters under Washington’s statutes and case law?

To prevail, the petitioners need to raise all relevant issues at trial, so they can argue them in the supreme court.

For the sake of those of us who give a damn about the way a person was put in the governor’s office, the GOP’s lawyers need to do a better job than they have done so far.


Blogger Alaskaboy2 said...

I haven't followed the trial presentations, but in reading the petitioners' trial brief, it seems that they very nicely argued the points you make. Most of what you say the GOP's attorney haven't presented is legal argument. That will come in closing, not the testimony and evidence portion of the trial.

I agree that the focus needs to be the voters' point of view, but "Foulkes v. Hays" properly addresses this need, and was nicely argued in the petitioner's trial brief.

May 30, 2005 4:58 PM  
Blogger Micajah said...

Please note that the trial brief was delivered to the judge on the weekend before the trial started. I believe he stated that he found it on his desk Saturday morning.

Note also that the hearings on February 4 and May 2 occurred long before that Saturday -- as did the rulings and statements of belief made by the judge from which he has yet to budge.

I acknowledge that the trial is not yet over, and that the petitioners still have opportunities to change the judge's mind.

When I said they didn't brief the points noted, I was referring to the need to brief the judge before he takes a position.

It's easier to persuade someone who hasn't already stated his opinion. And, it's better to brief the judge before he feels the need to volunteer his opinion as the trial date approaches.

May 30, 2005 6:17 PM  
Blogger Charles Jenkins said...

First of all, this is great information. I enjoy your blog and reading your comments at SP.

Second, a personal question, are you a lawyer, or just a smart guy who understands the law?

Third, I was very disappointed with the cross examination of the Dem witnesses by the Rep lawyers on Friday. At one point the Spokane County Auditor said that crediting was not a part of the reconciliation of ballots and the Rep lawyers never challenged her in their cross. In fact I think they asked her 2 questions and sat down. They challenged another Auditor, (I believe Clark County?) on the issue, but wouldn't it be smart to argue your legal position with every witness, and especially with that particular one as she to me came off as the most convincing and credible of the Dem witnesses?

From your post I take that you think the last hope of a petitioner win would be to prove that there are so many mistakes, false reports, and the flat out disregard of the law that it would lead the court to be unable to tell who the duely elected Gov is? Do you think the petitioners have proven that?

Thanks for the good info!

May 30, 2005 11:34 PM  
Blogger Micajah said...

I retired from the practice of law several years ago. I don't claim to be an expert in election law.

The use of the term "voter crediting" is an example of the pitfall awaiting the lawyer who doesn't do enough research to figure out how things work in whatever business or activity is the subject of the case.

In the "talking points" prepared to spin the issue back in January, several county auditors and the state director of elections (Nick Handy) used the term to refer to the post-election process of updating voter registration records to show the date of the last election in which each voter participated.

That's probably what the Spokane County auditor used the term to mean. I didn't listen to the testimony, but I would bet it's what she meant.

Of course, updating voter records after certifying the election results has nothing to do with canvassing the ballots and certifying the results.

However, the law and common sense both require that voters be credited with voting as part of the conduct of the election -- and that the canvassing process use that information about who was credited with voting.

Nick Handy and the auditors are using "voter crediting" improperly. Click the links in the original post where it says "voter crediting," and you will see that a statute requires the crediting of voters at the time ballots are issued at the polling place, another statute requires the crediting of voters during canvassing of the ballots when an absentee ballot is accepted, and the regulations require a ballot-to-voter reconciliation.

Unfortunately, it doesn't appear that the GOP's lawyers have grasped the meaning of "voter creditiing" and the difference between that and updating voter records after certification. As a result, they don't often ask questions to clarify which meaning of the term any witness is using at the time an answer is given.

As for your question whether the petitioners have proven that a remedy is required, I don't know. Several depositions have been given to the judge to read, and I don't know what they said.

Regarding that last excerpt from the Hill opinion and the possibility of setting aside an election based on a total screw-up, I think the petitioners have to focus on the "distortions" (a Foulkes v. Hays word) caused by the actions of King County election boards and officers. The system that is supposed to verify that returns are sufficiently valid to justify issuing a certificate of election was foiled by their actions -- which makes it impossible to rely on the official canvass report of King County in issuing a certificate of election.

I don't know if it would work, but their inability to show that the irregularities actually affected the outcome seems to leave no other choice but to try to persuade the courts to set aside the election because of the effect on the canvassing and certification process of King County's neglect and deviations from the law's canvassing requirements.

Surely they've done enough to overcome the presumption that King County election officers and workers properly performed their duties, so they need to persuade the courts that it matters.

May 31, 2005 10:17 AM  

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