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)

Thursday, May 26, 2005

Proportional Deduction: Evidence or Remedy?

Is proportional deduction (or reduction) a recognized method to be used in determining how illegal ballots were voted?

Or, is it a remedy to be used as an alternative to setting aside a flawed election?

I would bet it's a remedy, not a form of evidence which has been used (or can be used) to arrive at a finding as to how secret ballots were voted.

Judge Bridges noted today in his comments from the bench that the test for admissibility of expert testimony involves two aspects. Not only must the method be generally accepted, but it must also be generally accepted as it is proposed to be applied in the case at hand.

If the petitioners had referred the judge to any case law showing that proportional deduction has previously been used to prove how illegal ballots were voted, then the judge probably wouldn't have made those comments.

Note that choosing an appropriate remedy comes after finding that a remedy is needed to correct the effects of neglect, error, misconduct, or irregularities in the administration of an election.

Maybe one of the petitioners' basic problems is that they are trying to use proportional deduction to prove that a remedy is needed, rather than arguing that it is an appropriate remedy.

If they could prove that a remedy is needed, the supreme court might decide that using proportional deduction is better than setting aside the election.

Absent a supreme court ruling, there seems to be nothing in Washington law which provides for a remedy short of setting aside the election when illegal votes have created a problem that cannot otherwise be resolved.


Blogger Nathan said...

Of course the problem is that in order to get a remedy they'd have to win their case, and in order to win their case they need to show that illegal votes gave Gregoire the victory. Because of the secret ballot, no one can know that with certainty, so we can only make estimates based on the data we do have. That brings us right back to where we started.

May 27, 2005 12:11 AM  
Blogger Micajah said...

True, but the point I've tried to make is that you cannot use "proportional reduction" to prove your case unless you can persuade the court that this completely novel use is generally accepted.

The petitioners cited many cases in which proportional reduction was used -- but I'm betting that it was always used as a remedy in election contest cases.

Do the lawyers on both sides simply not grasp the distinction? If the petitioners do, then citing all those cases was not a persuasive thing to do. If the intervenor-respondents do, then where is their argument to point out the distinction? (I confess to having skipped virtually all their trial brief, but if they made the argument somewhere I think it would have been obvious without reading that whole thing.)

The method used by the petitioners' experts is simply a mathematical way to do a random draw of ballots from the affected precincts. I think it's Wisconsin that does such a random draw by simply having a person reach in and withdraw enough ballots from the box to reduce the total to the total that ought to be there. Proportional reduction isn't substantially different from taking out a specified number by hand.

It seems Washington has a dumb set of statutes regarding election contests, and the petitioners in their struggle to find a way around the dumbness have made a strategic error -- trying to use a remedy to prove they need a remedy.

May 27, 2005 8:03 AM  
Blogger Nathan said...

I don't think it's so much a strategic error as a a necessity required by the fact that the law requires them to prove that "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."

May 27, 2005 9:33 AM  

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