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 23, 2005

Maguire, Foreman, and the rest of you: This is your wake-up call

The GOP’s lawyers seem to have missed the significance of the fact that the Provisional Ballot Summary Report presented to the King County canvassing board on November 17 was false.

Neither the petitioners’ trial brief nor the opening statement by Mr. Dale Foreman mentioned the false provisional ballot report.

The brief discusses provisional ballots at pages 12 – 13, and makes a good point about the silence of the King County superintendent of elections, Bill Huennekens. He knew that the canvassing crew had determined that 900+ more ballots were in the polling place ballot boxes than the number of voters who had been credited with voting regular polling place ballots, but he didn’t tell the canvassing board about this material discrepancy in the ballot reconciliation data.

The significance of the false Provisional Ballot Summary Report is similar to that of the false Mail Ballot Report. Knowing that there were 900+ too many ballots in the vote count from the polling places, and knowing that the canvassing crew determined with reasonable certainty that most of those extra ballots were unlawfully cast provisional ballots, Huennekens surely realized that revealing the absence of 900+ of the issued provisional ballots would probably cause someone to ask if they had been inserted into the Accuvote machines at polling places. So, a false provisional ballot report was presented to the canvassing board to show a perfect reconciliation of provisional ballots – thereby concealing from the board the information which would probably lead them to discover what else was being concealed from them, namely the presence of 900+ too many ballots in the polling place vote count.

See Logan’s deposition at pages 153 – 154, where he testified that he was told about the false provisional ballot report after the recounts were completed and certified. Rather than report the actual number of ballots issued, the “ballots issued” figure on the report was merely the sum of the numbers in the other parts of the report.

One part of the evidence makes this concealment through silence and the submission of a false report even more significant than the false Mail Ballot Report. There was a chance to identify and remove those 900+ unlawfully cast provisional ballots from the ballot boxes and subtract their votes from the count. For the 875 absentee ballots, there was no way to identify the ballots themselves and remove them from the count.

As Logan testified during his deposition at pages 18 – 19, the provisional ballots were supposed to be folded “in thirds” by the poll book judges before being issued to voters – so the ballots would fit into the security envelopes.

Logan testified at pages 135 – 136 of his deposition that the unlawfully cast provisional ballots could probably be identified by the creases resulting from folding them to fit the envelopes.

Had the canvassing board been told that 900+ ballots of questionable validity were in the polling place vote count and that the 900+ folded, creased provisional ballots could probably be identified and removed from the vote count, does anyone doubt that the board would have to direct that Logan’s people make the effort to identify and remove those ballots?

If the ballots had been removed prior to November 17, we wouldn’t be wondering how the votes on them were cast. We would know exactly how they were voted.

And, we wouldn’t be wondering which votes to subtract, since all of them were unlawfully cast, and all of them ought to be removed. None of them belonged in the vote count unless it could be shown that any individual ballots among those 900+ ballots were cast by eligible voters who hadn’t cast another ballot.

The GOP’s lawyers need a wake-up call.


Blogger chew_2 said...


Interesting. Even's statement on behalf of the Secretary of State was that the presumption of validity, didn't apply to provisional votes. So it might be easier to show they were "illegal" than the felon votes who were properly registered.

Why can't these provisional ballots be retireved now? Can't they find ballots with creases in them now?

What's the time line here? At what time do you claim that King County should have known about the magnitude of this provisional problem and acted on it, and where were the provisionals located at that time?

If they were located in the same place they are now, then why can't King County go and locate them now?

May 23, 2005 1:00 PM  
Blogger Micajah said...

chew 2,

I would love to see the judge order King County to search for those creased ballots -- as a way to put the parties into the position they would have been in if King County had acted in accordance with the law.

If most of the ballots can be identified, we don't need to guess how they were voted. They can be removed from the vote count, and only those which could be shown to have been cast by eligible voters who hadn't also cast another ballot would be put back into the count. That's the way all ballots of questionable validity are supposed to be handled -- take them out and put back only those for which the question about their validity can be resolved in favor of finding them to be valid ballots.

But, as I had said in my post on May 4 ("Concealing voting discrepancies prevented remedy"), it may be far more difficult now to identify those unlawfully cast provisional ballots. The ballots have now been handled quite a bit, plus, Logan and Huennekens chose to commingle the properly cast provisional ballots and the polling place ballots during the second recount.

The extra handling might make identifying the creased ballots less certain. Commingling them may have introduced some lawfully cast, creased ballots into the boxes in some precincts.

Most provisional ballots that were properly cast had to be duplicated onto ballots from the voters' correct precincts. So commingling those duplicates with the ballots that were inserted via the Accuvote machine wouldn't hide the unlawfully cast ballots.

However, I recall reading the comments of the canvassing crew -- released along with the reconciliation summary back on March 11 -- and seeing that in one precinct the poll book judge mistakenly issued quite a few provisional ballots to people whose names were on supplemental pages in the poll book. Those creased ballots wouldn't have been replaced by duplicates, since the ballots were cast in the correct precinct. I don't know how often that problem occurred. At least one precinct would probably have several lawfully cast creased ballots in the ballot storage container.

As for the time line, Logan testified that the canvassing crew started on the day after the election and worked for about the next four or five days. By Tuesday after election day, they were apparently through, since King County began to tabulate the votes on provisional ballots that day -- and they aren't supposed to tabulate votes on provisional ballots until they are able to verify from the poll books that voters didn't cast other ballots in the same election.

So, no more than a week after the election the canvassing crew's findings were known to Linda Sanchez, Julie Moore and Bill Huennekens. Rather than take the issue to the canvassing board then, they hid it. Huennekens apparently told the board that the canvassing was "challenging," but never told them of the unresolved presence of 900+ more ballots in the boxes than should have been there.

As of one week after the election, few of those ballots had been handled more than once -- to take them out of the bins under the Accuvote machines and put them into secure containers for transport and storage. Some had been handled by the canvassing crew in precincts where the discrepancies were so great that they retrieved the ballots from their secure storage containers and hand counted them to be sure of the number and even ran them back through Accuvote machines to verify the vote count on them.

So, could they now be identified? It's worth a try, since it's better than guessing how they were voted; but I don't know whether the creases are still distinctly visible after all the handling. And, I don't know how many are now commingled with properly cast provisional ballots.

May 23, 2005 4:48 PM  
Blogger Iguana said...

Well, I am probably stating the obvious, but the entire point of concealing the discrepency was to avoid removing the ballots that were stuffed in there by Logan and company to insure that their gal "won."

The whole thing stinks. I just hope the judge throws it out so that either (1) the supreme court can show its true colors to all of us by overturning the judges order or (2) a revote is forced and the Democrats are taught a lesson about rigging elections.

May 24, 2005 1:16 AM  

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