What chance is there for reform?

An article in today’s edition of the Kitsap Sun provides some indication of how hard it will be to reform Washington’s elections laws and practices.

Note how Ron Sims describes his goal – restoring faith in the process. “Faith”: “unquestioning belief that does not require proof or evidence.”

Not a chance, Ron. So long as the process in King County is under the control of people who don’t obey the law, there can be no unquestioning belief in your purportedly certified election results.

Why does Sims want a "show and tell" meeting with Judge Bridges? Are there no voters in King County who are interested in being shown that their elections personnel do the job required of them by law?

Note that Senator Prentice has the usual blindly partisan view of things. She is clearly incapable of grasping why it is wrong to install a person in the governor’s office based on official canvass reports that are unworthy of belief. All that matters is who "wins" according to the vote totals.

Genteel Sam Reed hopes for a “civics lesson.” For whom?

Election reforms next, now that flaws exposed?
By REBECCA COOK, Associated Press WriterJune 11, 2005
SEATTLE
According to the official record, 1,678 people voted illegally in Washington's 2004 election.

No one knows for sure who cast those votes or which candidates benefited. A judge decided the fact that the number of illegal votes dwarfs Gov. Christine Gregoire's 133-vote margin of victory doesn't merit ordering a new election.
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"Do we have something to prove? Yes," said King County Executive Ron Sims. "We have to restore the people's faith in the integrity of the election process."
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"The evidence here suggests that the problems require more than just constructing new buildings and hiring more staff," Bridges said in his ruling.
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"I actually agree with that statement," Sims said, saying the larger building and additional staff are two parts of a much larger change. "One day, I want to go to Wenatchee and talk to Judge Bridges, and say: Tell me whether or not we have met the judicial standard you established. I want to look in his face and see in his eyes he is satisfied."
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"They still think they won," said Sen. Margarita Prentice, D-Renton. "I'm not going to make it so the loser wins and the winner loses."
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Public confidence in elections is at low tide now, Secretary of State Sam Reed acknowledged, but he hopes that will change.

"I'm hoping in the long run it will be a great civics lesson," Reed said. "They are going to see some reform, and hopefully that's going to restore their trust and confidence."

Berendt supports property rights

Washington State Democratic Party Chairman Paul Berendt has taken an extremist’s position on the rights of property owners versus the government.

How dare he question the authority of the government to deny a private party the full use of private property? Doesn’t he realize that such an extreme position is out of the mainstream?

Next thing you know, Berendt will be portrayed as just another angry white male whose selfishness blinds him to the reality that property rights must be surrendered for the good of the community.

State Democrats to Olympia: Um, You've Lost Our Interest
By RACHEL LA CORTE, Associated Press, June 9, 2005
OLYMPIA
After a court vindicated the Democrats this week by upholding the 2004 victory of Gov. Christine Gregoire, the state party now wants back the money it spent on a recount with interest.
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The Democrats, who asked for the money in late December, said they should get 12 percent interest -- more than $30,000 more than the state wants to give them -- because the money was wrongfully held by the secretary of state's office for six months.

"We've been penalized by them having this money all of this time," state Democratic Party Chairman Paul Berendt said Wednesday. "There was no reason why that shouldn't have been refunded as soon as the third count was certified. The state seizure of that money is tantamount to them seizing money from any private party."

Berendt said the money could have been used toward the nearly $3.5 million in legal costs for the election challenge.
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Berendt said he thought he could come to an agreement with Reed's office, and hasn't made a decision on whether he might take court action.

"They shouldn't assume they can just take a private party's assets without paying a penalty," he said.

Secretary of State Sam Reed should refer Berendt to King County Executive Ron Sims for a chat about the trivial nature of private property rights.

The WSDCC has been denied the full use of its property for a few months – so what? It was only a brief moratorium. They will receive the interest earned by the money in the account in which it was safely deposited, so they haven’t been denied all beneficial use of the property.

All done

Folded, packed, and hauled away.

What happens when no one verifies the returns?

It perhaps won't matter as the case plays out in the courts, but it seems to me that the reason we're in the mess we're in is that the process which is supposed to determine whether a person was duly elected was foiled by King County's failure to obey the laws that established that process.

Either Logan or his designee was required to take an oath before the canvassing board began to canvass the ballots. Did Logan or anyone take any oath prior to the written oath of Logan dated Nov. 17? Note that Logan's written oath didn't involve swearing "to the authenticity of the information presented to the canvassing board."

Note also that Logan has claimed ignorance about the false Provisional Ballot Summary Report, the false Mail Ballot Report, the material discrepancies in polling place ballot reconciliation, the material discrepancies in absentee ballot reconciliation, and the material discrepancies in provisional ballot reconciliation.

A key part of the process is having the person who presents information to the canvassing board swear to the authenticity of that information. Huennekens seems to have been the cutout man who stopped the flow of information to the board – leaving the canvassing board in the dark and allowing Logan to claim ignorance. Since Logan left it all to Huennekens, was Huennekens under oath? If he wasn't, then Logan needed to inquire about the information being presented, rather than sit like a bump on a log.

The canvassing board was required to "verify" the auditor's abstract of votes. The law doesn't say what standard of proof must be met in showing that the abstract is a true representation of the votes cast – but does say that the board must certify the returns by the deadline "if they can be ascertained with reasonable certainty."

"With reasonable certainty" means pretty much the same as "by clear, cogent and convincing evidence." So, it might be inferred that the canvassing board is supposed to use the same standard of proof in determining the accuracy of the returns as Judge Bridges believes ought to be used in determining whether to set aside those returns.

However, it seems obvious that King County's canvassing board didn't think they had any role to play at all in determining whether the official canvass report was a "full, true, and correct representation of the votes cast."

Look at their Nov. 17 "certification." They certified that the accompanying copy of the abstract of votes was a true copy of the abstract of votes. They didn't say anything at all about the truth of the abstract itself.

Look at the Nov. 17 Provisional Ballot Summary Report. A child who has learned basic arithmetic could quickly see that it made no sense. The total of ballots reportedly received from other counties was subtracted from the total of ballots supposedly issued by King County. Both those numbers should have been treated as positive numbers in reconciling ballots – to show how many King County had in hand, and then to show what happened to the ballots King County had, whether those ballots came from King County voters or auditors in other counties.

Only a canvassing board that didn't know its duty – or negligently failed to comply with its duty – could have missed the false nature of the reconciliation reflected in that provisional ballot report.

By the way: Does anyone even know who among Logan's subordinates prepared that provisional ballot report? It concealed the material discrepancy between the number of provisional ballots issued and the number of provisional ballots properly cast. Knowing of that discrepancy, perhaps even a member of King County's canvassing board would have asked whether those missing provisional ballots were inserted into the ballot boxes via Accuvote machines. Who prepared that false report – and why was it false?

Material discrepancies which Logan and his subordinates had a duty to disclose were concealed from the canvassing board.

The canvassing board then (sort of) certified the county's returns.

The legislature relied on the returns from all the counties and issued a certificate of election without inquiring to see if the returns were credible.

Now, rather than having someone in the governor's office who was "duly elected" as a result of the verification process required of county canvassing boards and the certification process required of the legislature, we have Gregoire in office based on an almost nonexistent verification process in King County and a completely nonexistent verification process at the legislature.

If it isn't our current law, should the law be amended so that – rather than only look to see whether there is clear and convincing evidence that the apparently losing candidate got the most legal votes – the courts would look to see whether the canvassing boards and legislature found with reasonable certainty that the apparent winner got the most legal votes?

What does it mean to say “(5) Any neglect of duty on the part of an election officer other than as provided for in subsections (1) and (3) of this section has occurred or is about to occur; or(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election," if it doesn't include an examination of how the certificate of election came to be issued?

This case ought to be one in which the courts consider the meaning of "neglect of duty" and "error...in the issuance of a certificate of election" – and consider whether our laws already provide authority to set things right by setting aside an election that was certified in error.

If they don't, then the laws ought to be amended to require it in any future election contests.

We'll never know

Among many things we will never know about the November 2004 gubernatorial election, we will never know why the canvassing board wasn't told of the discrepancies uncovered by the canvassing crew supervised by Linda Sanchez.

Oh, well.

Does Linda Sanchez know?

Linda Sanchez, who supervised the canvassing of polling place ballots, began her testimony today.

These excerpts from her testimony (starting at 5 hours and 19 minutes and going to 5 hours and 21 minutes on TVW’s archived audio recording) make it appear that she doesn’t know the purpose of the canvassing process:

Q. What’s the purpose of the canvass?
A. Well, the purpose of the canvass is really to – essentially is to look at the poll books and kind of reconcile the poll books. It’s the main part of the canvass.
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Q. Is this an important part of the administration of an election – this canvassing process?
A. I think it’s an important part, because it’s the link we have with the polls and the poll workers’ duties for that day – for the election day. We look at the poll books, and that kind of gives the story of what happened at that polling place.
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Q. Is it important that that work be done fairly and impartially?
A. It’s very important.
Q. Why is it?
A. Well, it’s something that is used by our department to see how it went at the polls on election day, to reconcile the number of signatures in a poll book with number of ballots that were issued to the voters on that day. [Emphasis added.]

The purpose of canvassing the ballots cast at polling places is to determine whether the ballots included in the vote tabulation were legitimate – that is, whether they belong in the vote count.

Knowing whether the number of ballots issued matches the number of signatures isn’t the point. The point is to know whether the number of voters who signed the poll books and were credited with participating in the election by casting regular polling place ballots (not provisional ballots) matches the number of ballots inserted into the ballot box via the Accuvote machine or into the side bin of the ballot box for later tabulation as what King County calls "add ons."

In King County, the votes marked on virtually all regular ballots cast at polling places were tabulated by Accuvote machines. The vote counts done by the machines were later uploaded into the central vote tabulation system. "Add ons" were for one reason or another not tabulated at the poll sites, but were tabulated later at the central counting center.

So, it’s necessary to know whether those vote counts from the polling places are a true representation of the legal votes cast in each polling place.

The essential purpose of this part of the canvassing process is to determine whether the number of ballots scanned by the Accuvote machine at each polling place is the same as the number of voters credited at each polling place -- taking into account the "add ons" which weren't counted by the Accuvote machine.

For every voter credited in the poll books with participating in the election, there ought to be a ballot in the ballot box under the Accuvote machine or in the ballot box's side bin – and no more than or less than one ballot in the box for each such voter.

It’s not a reconciliation of the number of signatures and the number of ballots issued. It’s a reconciliation of the number of voters credited and the number of ballots included in the vote tabulation.

The petitioners ought to be able to demonstrate in their cross-examination of Sanchez that the presence of hundreds of ballots in the vote tabulation in excess of credited voters was discovered during this canvassing of polling place ballots.

This part of the canvassing process served only part of its purpose – to discover the presence of any illegitimate ballots that had been included in the vote tabulation.

But the other part of its purpose wasn’t served: The canvassing board wasn’t told of the material discrepancies, and thus had no opportunity to consider how to remedy the situation.

Why wasn’t the canvassing board told?

DIMS wasn't the problem

Earlier – here and here – I had said that the new computer system in King County wasn’t the cause of the absence of absentee ballot reconciliation information and suggested questions to ask Nicole Way.

In a roundabout way, the answers appear to have come from Dean Logan in his testimony today.

On the TVW archived audio recording, at 1 hour and 23 minutes is this exchange between Logan and the petitioners’ attorney:

Q. One of the other deficiencies that you talked about are the lack of data reports and backup information that support the data on the Mail Ballot Report. Is that right?
A. That’s right.
Q. That’s a deficiency – a lack of backup information for the data that’s on the Mail Ballot Report?
A. Yes, in the respect that I think that they – that that data actually exists and that ability within the system exists to create that data – I think – was just not referred to, or used as a resource effectively in completing that report.

Apparently, Way didn’t have any DIMS reports to use in preparing the false Mail Ballot Report other than, possibly, the number of voters credited with casting a valid absentee ballot.

It seems that Logan was saying that King County has since learned how to use the computer system which was installed in May and June of 2004 – and, the election management and voter registration computer system (“DIMS”) can do what one would reasonably expect of it. That is, the system can apparently produce reports to show how many absentee ballots have been issued, received, and accepted or rejected.

Despite Nicole Way’s efforts prior to and during the canvassing of the general election returns to get the needed reports, they weren’t produced – but they apparently could have been, if her superiors (Fell, Huennekens and Logan) had directed that it be done by the people whose job it was to make it so.

I wonder if the canvassing board will ask about it when they are next presented a Mail Ballot Report that purports to be a reconciliation of the ballot totals.