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.
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.
posted by Micajah | 1:22 PM
2 Comments:
ScottD,
Did you leave out part of what I said?
I read my little essay again, looking for the quotation in your question.
It's not there. I said more than once that the county canvassing boards must verify their respective county's returns -- and said nothing at all about the statewide totals until this:
"...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." (Emphasis added to highlight the part you omitted. It's a different statement entirely when all the words are included.)
The legislature issues the certificate of election for statewide officers, and thus has the responsibility to ascertain the total of legal votes. When questions arise, they have a duty to inquire.
Once upon a time, they knew this:
RCW 29A.60.250 Secretary of state -- Final returns -- Scope.
As soon as the returns have been received from all the counties of the state, but not later than the thirtieth day after the election, the secretary of state shall make a canvass of such of the returns as are not required to be canvassed by the legislature and make out a statement thereof, file it in his or her office, and transmit a certified copy to the governor.
[2003 c 111 § 1525; 1965 c 9 § 29.62.120. Prior: Code 1881 § 3100, part; No RRS. Formerly RCW 29.62.120.]
RCW 29A.60.190 Certification of election results -- Unofficial returns.
(1) On the tenth day....
(2) At the request of a caucus of the state legislature, the county auditor shall transmit copies of all unofficial returns of state and legislative primaries or elections prepared by or for the county canvassing board to either the secretary of the senate or the chief clerk of the house of representatives.
[2004 c 266 § 18; 2003 c 111 § 1519.]
As for your suggestion that the canvassing board cannot review every poll book and batch slip -- I haven't suggested that they must.
However, I have suggested that they must take reasonable steps to verify the accuracy of the abstract of votes -- as is required by law.
King County took not one single reasonable step. Not one.
ScottD,
You miss the point.
Canvassing boards already have the duty to do what you seem to believe is impossible.
I'm simply saying that it should be possible to contest an election based on their failure to perform that duty.
Rather than be limited to trying to prove that the other person actually won, it ought to be possible to prove that the decision to declare a winner wasn't based on fact -- in which case the certificate of election is void.
The idea is to install in office the person who was elected by the voters. That's what the existing canvassing and certification process is intended to do.
When King County didn't follow the law, the result was to install in office a person who cannot reasonably be said to have been duly elected.
You believe that the law doesn't authorize setting aside an election on such grounds.
I believe it may, based on the terms of RCW 29A.68.011(5) and (6).
But, I recognize that the courts may determine that they aren't authorized to do so as the law is now worded -- in which case I say the law ought to be amended to authorize it.
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