Programs -- get your programs!

Regarding the burden of proof, keep in mind the different issues as the trial of the Washington gubernatorial election contest proceeds.

Perhaps the judge will revisit his May 2 ruling on the petitioners’ burden of proof on Monday, since he invited counsel to address it, and the petitioners have.

“Burden of proof” and “standard of proof” are often used to refer to the same thing, but they’re actually not the same.

Think of “burden of proof” as a thing someone has to carry. Whoever has the burden had better carry it, or he loses.

In this case, the petitioners have the burden of proof on the ultimate issue – whether to annul the election.

In a sense, the intervenor-respondents (the Democrats) have the burden of proof when offering evidence in support of their own points – e.g., the existence of offsetting errors or illegal votes. If the Democrats’ evidence is not worthy of belief, then their points won’t carry any weight. But remember that the Democrats don’t need to prove that the election was valid. Their purpose is to show that the petitioners haven’t carried their burden of proof.

When you get to the bottom line, the GOP loses if they haven’t carried their burden of proof as to the ultimate issue, no matter what the Democrats did.

Think of “standard of proof” as you would any standard that must be met. The person who has to carry the burden has to carry it to a certain height – preponderance, clear and convincing, and beyond a reasonable doubt are the usual standards.

Also, note that the “elements” which must be proven are often laid out ahead of time. On May 2, Judge Bridges ruled on the elements which the GOP must prove to show that an illegal vote was cast. He decided that there are six elements. At page 7 of the transcript, he stated: “One, that the...voter was convicted as an adult, that the voter was convicted of a felony, that the voter had not been given a deferred sentence, that the voter had not...had their civil rights restored. Fifth, that the voter cast a ballot in the 2004 general election and finally, number six, that the voter marked the ballot to indicate a vote for a gubernatorial candidate.”

Standard of proof (preponderance vs. clear and convincing) is discussed at pages 35 – 36 of the petitioners’ trial brief.

Here is what they haven’t said:

Judge Bridges on May 2 appears to have equated (1) cancelling a person’s right to vote and (2) determining whether votes have been shown to have been cast by disqualified persons in a contested election – but they aren’t the same.

The judge’s ruling is on pages 6 – 8 of the transcript. At page 8 he stated: “The same standard [“clear and convincing evidence,” as is required to challenge successfully a voter’s registration] should apply when election results are contested under 29A.68.020. Inasmuch as voting is a constitutional right, no vote should be held illegal and discounted absent clear proof that the voter was legally disenfranchised.”

The May 2 ruling clearly sets the standard of proof required to prove that an illegal vote was cast by a felon.

If the judge also intends to apply the clear and convincing evidence standard of proof to the ultimate issue, i.e., whether to annul the election based on illegal votes, then the distinction between the two issues is even greater.

Denying a person the right to vote in any future election until a disqualification is removed ought to require clear and convincing evidence to prove the disqualifying fact, since voting is a fundamental right of citizens who aren’t disqualified from voting.

Deciding that an election is fatally flawed because of illegal votes doesn’t bar anyone from voting, nor does it bar future elections. Instead, it ensures that our elections are decided by legitimate votes.

Requiring clear and convincing evidence to justify annulling a flawed election makes it more difficult to protect the right of qualified electors to decide the outcome of elections.

Requiring preponderance of the evidence better protects the right of qualified electors and denies no qualified elector the right to vote – thus it is the standard of proof which ought to be applied in deciding a contested election.

Using preponderance of the evidence as the standard of proof doesn’t cause an unjustified or unreasonable disruption of the elections process. Compared to the effect of allowing the result of an apparently flawed election to stand, the possibility that more elections would be successfully contested when the lower standard of proof is required is not too high a price to pay.

Until the legislature enacts laws which establish a higher standard of proof for election contests, the ordinary standard of proof for civil actions ought to be applied – namely, preponderance of the evidence.

The state supreme court affirmed the trial court’s ruling in Foulkes v. Hays, knowing that the trial judge decided the case based on a preponderance of the evidence rather than the requested higher standard of clear and convincing evidence. The parties actually argued the issue, and the court chose preponderance of the evidence as the appropriate standard of proof.