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)

Sunday, June 05, 2005

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.

6 Comments:

Blogger scottd said...

How, exactly, does a canvassing board determine with "reasonable certainty that the apparent winner got the most legal votes" ?

For statewide elections, canvassing boards don't declare an apparent winner. They just report on the vote counts within their jurisdictions.

That point is so obvious that I'll assume that you really meant to say that canvassing boards should be required to find with "reasonable certainty" that the votes counts they certify are correct. But my question would still remain. How would they do that?

The canvassing board isn't going to personally review all the pollbooks and absentee ballot tally sheets. At some point they are going to rely upon reports generated by election staff.

June 05, 2005 7:44 PM  
Blogger Micajah said...

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.

June 05, 2005 8:19 PM  
Blogger scottd said...

Take it easy, Micajah. I wasn't trying to misrepresent your point -- honest. At worst, I may have misinterpreted it, but I don't think so.

I don't see how adding the "and legislature" part changes things much. I interpreted that to mean that you meant that the canvassing boards and the legislature, acting independently, must each find "with reasonable certainty that the apparent winner got the most legal votes." If one interprets your post that way, I think my post makes perfect sense.

The only other possible interpretation is that you meant that the canvassing board and legislature should act jointly to make the same determination. If that's the case, I'm even more perplexed. How would that work? Are you saying that the canvassing board needs to work with the legislature before it can certify its election results?

In any case, my basic question was how does the certifying body make its determination if it's not on the basis of summary reports created by election staff? I have no idea and you haven't bothered to answer that question with any specificity. You've answered vaguely about taking "reasonable steps", but you haven't said what those might be. More importantly, you haven't described how those steps could be specified in a workable law.

The RCW you cited just says the SoS should make a canvass of returns given to him by the counties. That's just repeating information sent to him by the counties -- so I don't see how that adds anything to the process.

The second RCW you cited just says that, upon request, the counties should transmit their unofficial returns to the SoS or the chief clerk of the legislature. Again, I don't see how that adds to your proposed "reasonable certainty" requirement.

I never said that you suggested that the canvassing board should review each poll book and batch slip. I was just wondering how else the canvassing board could make the determination you seek. It seems to me that they either rely on summary reports or they need to look at the source material directly. If you have a better idea, let me know.

June 05, 2005 11:12 PM  
Blogger north clark county said...

scottd,
Here are some of my thoughts.

The only other possible interpretation is that you meant that the canvassing board and legislature should act jointly to make the same determination.

I don't think jointly is the only other possible interpretation. Sequentially is another possibility, and is the one that should be used. The canvassing boards do their part within their respective counties and then the legislature completes the process for the state. If the legislature finds that one or more counties have done an inadequate job, then the returns should be sent back for rectification.

The RCW you cited just says the SoS should make a canvass of returns given to him by the counties.

This is true only for those elections not certified by the legislature, as Micajah pointed out by stating "as are not required to be canvassed by the legislature". An example of these elections would be initiatives. However, for state officer elections, the SoS isn't to do anything more than collect the certified results from the counties and deliver them to the legislature. According the state constitution, the SoS has no authority to canvass or to certify the elections of state officers.

And then the question of how else the canvassing board could make the determination, they should have procedures and standards in place so that when they are presented with summary reports, they can have confidence in what these reports are telling them.

I hold that the RCWs and WACs have set minimum procedures and standards. Therefore, if the King County Canvassing Board was presented with summary reports that did not accurately follow those procedures and standards, as evidenced by the Mail Ballot Report, the Provisional Ballot Report and the Poll Ballot Report, the they, the Canvassing Board, have been defrauded. If these reports could not be relied upon to make a true certification with reasonable certainty, then fraud has been committed, and the Foulkes standard has been met in this election. Nothing says that the object of the fraud is to cause one candidate or another to win the election. The fraud can be to withhold information so as to CYR* and protect one's job.

*CYR -- Since the SCOWS recently admonished one attorney for using "CYA" during argument, a more judicially acceptable term is used here.

June 06, 2005 12:37 AM  
Blogger scottd said...

ncc: I think you are misinterpreting Foulkes. I offer this opinion with some humility because I am not a lawyer and my understanding from previous posts is that both you and Micajah are. However, bear with me.

The ruling in Foulkes was based on findings that Adams County had been negligent in not securing ballots prior to a recount and that fraud had occured when some ballots were subsequently altered in favor of Hays. I think that the finding of fraud was significant because it showed that the negligence was material. If you don't think that fraud was an important part of that case, ask yourself what the likely ruling would have been if Foulkes had only presented evidence that the ballot sacks were not properly secured.

The RCW declares that simply finding negligence or improper conduct on the part of election officials is insufficient to set aside an election. You must show that the negligence allowed the contested party to "procure" the right to office even though that party did not win the highest number of legal votes. Without this provision, it would be possible to overturn elections on the basis of technical violations by election officials.

King County (and other) election officials may have violated WAC rules in conducting the election, but GOP lawyers have not shown how those violations caused Gregoire to win an election she would have otherwise lost.

June 06, 2005 1:15 AM  
Blogger Micajah said...

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.

June 06, 2005 8:18 AM  

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