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)

Saturday, February 26, 2005

Rep. Patricia Lantz garners nomination for Izzen T. Hollowe Prize

Representative Patricia Lantz (D, 26th District) is our second nominee for the first annual Izzen T. Hollowe Memorial Prize.

Based on an article published in today’s Port Orchard Independent, it appears that Rep. Lantz is a typical “liberal” racist: One who is too dense to recognize this aspect of her own personality.

She is a sponsor of House Bill 1586, which would repeal part of Initiative 200 (approved by the people in 1998) and bring back arbitrary discrimination based on a person’s ancestry as part of the university and college admissions process.

Of course, Lantz believes herself to be a fair, reasonable and just person:

“I want to live in a just society,” Lantz said. “It has to do with my basic core values.”

This is the part that put her in the running for the coveted Izzen T. Hollowe Prize:

“I don’t for one minute want people to assume that (people of color) are of inferior quality,” Lantz said.

Asked whether she believed people of color could gain admission to state universities without any assistance that took into account the color of their skin, Lantz said no.

“I don’t think so,” she said.
Isn’t that adorable? This sweet little old lady doesn’t want people to assume that skin color correlates with ability to compete for admission to our state universities and colleges.

But she, on the other hand, does assume that “people of color” are inferior and cannot compete.

You may be tempted to protest that Lantz couldn’t be a racist bigot, but note that she assumes the very thing which the evidence proves to be untrue.

As the article states:

Lantz claimed Washington colleges have become less diverse since the advent of I-200, however according to data collected by the University of Washington (UW), diversity has actually increased since 1998.
Now, Patricia Lantz has the ability to get the facts, but she is a bigot who cannot absorb those facts into her mind.

A bigot clings dogmatically to a particular creed or opinion despite the facts – and that is how Lantz behaves on this issue.

For this astonishing demonstration of the presence of unused space in her attic, Lantz must be recognized as the front runner for the Izzen T. Hollowe Prize.

Rep. Sam Hunt’s ignorance set a high mark, but Lantz has exceeded all expectations by smashing through that mark with her ignorance and racist bigotry.

Saturday, February 19, 2005

What's missing on the left?

While I had heard an occasional mention during the past four years of The Project for a New American Century and its September 2000 publication titled Rebuilding America’s Defenses: Strategy, Forces and Resources for a New Century, I had not realized how close to paranoia the beliefs of the political left are regarding the “neo-cons” and this publication.

Former Ambassador Joseph C. Wilson IV stated at a forum hosted by The Century Foundation and the Milton S. Eisenhower Foundation on February 15, 2005, and broadcast by C-Span2 on “Book TV” on February 19, 2005, that the “neo-cons” in the Bush administration had already decided to increase military spending for imperialist purposes and to use military force in the Middle East, specifically against Iraq – and just needed a catastrophe like Pearl Harbor to provide the impetus.

This statement by Wilson is such utter nonsense that paranoia may be the true explanation for such delusional thoughts.

What has happened to the left of the American political spectrum?

The forum consisted of several people, at least two of whom (Wilson and Clare Short) had contributed to the book which apparently prompted the broadcast on “Book TV” – Patriotism, Democracy, and Common Sense: Restoring America's Promise at Home and Abroad, edited by Alan Curtis.

Wilson cited page 67 of the September 2000 paper as the place to look for a plain statement of the "neo-con's" desire, but that page mentioned Pearl Harbor only in the context of saying that the Navy’s leaders may resist change in their force structure so much that the Navy will be unprepared for warfare as it may be waged in the future:

For the moment, the U.S. Navy enjoys a level of global hegemony that surpasses that of the Royal Navy during its heyday. While the ability to project naval power ashore is, as it has always been, an important subsidiary mission for the Navy, it may not remain the service’s primary focus through the coming decades. Over the longer term – but, given the service life of ships, well within the approaching planning horizons of the U.S. Navy – the Navy’s focus may return again to keeping command of the open oceans and sea lines of communication. Absent a rigorous program of experimentation to investigate the nature of the revolution in military affairs as it applies to war at sea, the Navy might face a future Pearl Harbor – as unprepared for war in the post-carrier era as it was unprepared for war at the dawn of the carrier age.

Wilson apparently meant to refer to this passage at pages 50 and 51, which is the only other mention of Pearl Harbor in the 90-page paper, but it merely states a truism – the significant changes recommended in the paper would occur at a pace dictated by several factors, unless there occurred a “catalyzing event” that caused change to occur much more quickly:

Any serious effort at transformation must occur within the larger framework of U.S. national security strategy, military missions and defense budgets. The United States cannot simply declare a “strategic pause” while experimenting with new technologies and operational concepts. Nor can it choose to pursue a transformation strategy that would decouple American and allied interests. A transformation strategy that solely pursued capabilities for projecting force from the United States, for example, and sacrificed forward basing and presence, would be at odds with larger American [pg. 51] policy goals and would trouble American allies.

Further, the process of transformation, even if it brings revolutionary change, is likely to be a long one, absent some catastrophic and catalyzing event – like a new Pearl Harbor. Domestic politics and industrial policy will shape the pace and content of transformation as much as the requirements of current missions. A decision to suspend or terminate aircraft carrier production, as recommended by this report and as justified by the clear direction of military technology, will cause great upheaval. Likewise, systems entering production today – the F-22 fighter, for example – will be in service inventories for decades to come. Wise management of this process will consist in large measure of figuring out the right moments to halt production of current-paradigm weapons and shift to radically new designs. The expense associated with some programs can make them roadblocks to the larger process of transformation – the Joint Strike Fighter program, at a total of approximately $200 billion, seems an unwise investment. Thus, this report advocates a two-stage process of change – transition and transformation – over the coming decades.

Anyone with the slightest knowledge of the U.S. Navy would recognize the truth of the statements made in those two paragraphs. For example, the recommendation to “terminate aircraft carrier production” would meet resistance similar to, if not greater than the resistance of the battleship Navy to the coming of the aircraft carrier era.

How in the dickens could sane people come to the conclusions stated by Wilson? No one at the forum blinked, much less disputed what he claimed.

Wilson and the people at that forum aren't the only ones who believe such nonsense.

Something is missing on the left. Is it knowledge? Is it a firm grip on reality? What’s missing?

Pierce County cancels felons' voting registrations

Having belatedly learned that a few dozen felons had illegally voted in Pierce County during the last general election, the county auditor, prosecutor and canvassing board had little difficulty in removing those people from the voter registration rolls.

According to The News Tribune, the original list contained the names of 77 felons who were apparently disqualified from voting as a result of their criminal convictions.

A handful were eliminated from the list, and the voter registrations of 73 were cancelled.

Now that wasn't so hard, was it?

For those who are keeping count of the claimed votes for Gregoire or Rossi reported in the news media, one disqualified felon claimed to have voted for Gregoire and one for Rossi.

Wednesday, February 16, 2005

Rep. Sam Hunt sets the mark to beat

Representative Sam Hunt (D, 22nd District) is our first nominee for the first annual Izzen T. Hollowe Memorial Prize.

Endowed by an anonymous and penniless benefactor, the Izzen T. Hollowe Memorial Prize involves no cash award, but offers politicians a significant boost in their next campaigns – assuming their constituents want to re-elect someone who has won this prize.

The selection criteria are straightforward. The recipient must hold an elective office in state or local government, and must say something which proves beyond cavil that there’s a lot of unused space in the attic.

Today, The Olympian hosted a “chat session” at which Mr. Hunt could answer questions submitted in writing via the web.

Mr. Hunt recently began his third term in office in the House. He is the Democratic Party’s floor leader. He serves on these committees: Natural Resources, Ecology & Parks; Rules; and State Government Operations & Accountability. (Those who yearn for meaningful reform of our election laws, please note that all such bills will be initially considered by the last of those three committees.)

He achieved such high marks for the answer quoted here that we fear others may be discouraged from attempting to compete for the prize, but we’re pretty sure many of them can’t help but rival Mr. Hunt’s stunning performance.

Loyal readers of Croker Sack may recognize in the question some issues discussed previously. Disloyal readers can’t tell their knees from their elbows, so we must direct them to this entry and this one and, of course, this one.

Here’s the question from someone who must be a loyal reader and the answer from Mr. Hunt:

Bob, Port Orchard: Two bills were introduced during this legislative session that would authorize the Secretary of State to canvass the counties' election returns and certify the results in a gubernatorial election. Do you think it is constitutional to use a statute rather than a constitutional amendment to remove from the Legislature the authority to declare who was elected as Governor? Do you think it is a good idea to have the Secretary of State assume the responsibility of deciding who was duly elected as governor?

Hunt: The way I view it is the Legislature did not have the authority to void or change the election -- we just voted to accept the certification from the Secretary of State. The state Constitution says the governor shall be elected every four years, and there is not a provision for doing otherwise.

We can all sleep better, knowing that Mr. Hunt represents the 22nd legislative district which includes Olympia, Lacey and Tumwater. All of us, that is, except for the residents of those areas.

Tuesday, February 15, 2005

Did they or didn't they do the reconciliation?

Sam Reed made an interesting statement during the “chat session” hosted by The Olympian from 3:00 to 4:00 P.M. today.

As previously discussed, the reported discrepancies between the numbers of ballots and numbers of voters who participated in the election raise a question, but don’t answer it.

If the discrepancies are real, rather than merely the results of shoddy work in updating the voter registration database to state the date of the last election that each voter participated in, then they indicate that illegitimate ballots got into the vote count and perhaps some legitimate ballots were removed and hidden or destroyed.

Reed acknowledged that discrepancies do indeed raise a question about the integrity of the election, but also noted that the records of the pre-certification process should be the basis for answering the question.

That was surprising only to the extent that Reed is the first official who has said what records should be looked at to answer the question. (Logan in King County never mentions the possibility that such records even exist, much less claims that those records prove his elections office ran a clean election.)

Here was the surprising thing Reed said (emphasis added):

Vicky, Federal Way: Do you believe that we should have a law requiring precincts, counties and the entire state to reconcile the number of ballot so that the number of participating voters matches the number of cast ballots?

Reed: Yes. The Secretary of State's office always does require they balance the number of ballots cast with the number counted and rejected. That's very important for the integrity of the election, to avoid ballot box stuffing or ditching ballots. When we conduct audits, we look for that and have cited counties for that.

We are still looking at King County about that. We are looking at how serious the problems could be. Because the confusion in King County is the fact that they can't match these ballots with their voter registration list and those they've credited with voting, and that's a separate issue from the last question asked. That's what we require. What I don't know for sure is whether King County has done the first, but it sounds like they have, believe it or not. They've been able to balance the number of ballots cast in each precinct, and the total as well.
Compare that to the press release yesterday from the Washington State Republican Party:

Logan was unable to answer a question from Councilman Bob Ferguson about discrepancies between ballots counted and people credited with voting in individual precincts. Logan further claimed that the 1,800-vote discrepancy between ballots counted and people credited with voting was no big deal, and dismissed suggestions that he should make an effort to keep felons from illegally registering to vote.

The Washington State Republican Party has been able to determine those numbers based on the data provided by Logan’s own elections department:

* There were 5,845 more ballots than voters in 1,318 precincts;

* There were 3,751 more voters than ballots in 1,011 precincts;

* There were a total of 9,596 discrepancies in 2,329 precincts.
So, did they or didn’t they reconcile the number of voters who participated in the election and the number of ballots on which the votes were counted?

Reed may be saying that the ballot accountability forms prepared by the polling place officials on election night can be reconciled, but that wouldn’t answer the question whether the forms accurately stated the number of voters in the poll books.

But, if those ballot accountability forms agree with the ballot totals in the vote count, it would at least indicate that no illegitimate ballots were introduced into the count at the counting centers long after the close of the polls.

Perhaps we will see when the evidence is offered in court.

Monday, February 14, 2005

Sam Reed wins the first round

In the "Recall Reed" effort, the petitioner lost the first round in court. According to The Olympian:

BREAKING NEWS news updated: 2:26 PM 2/14/2005 -

Judge rejects Reed recall petition

Thurston County Judge Chris Wickham today rejected a recall petition against Secretary of State Sam Reed, saying the nine charges put forth by proponents lacked a factual or legal basis.

Proponent Martin Ringhofer says he intends to ask the state Supreme Court to review the ruling.

Ringhofer says he wants Reed dislodged from office because he certified Democrat Christine Gregoire as governor despite elections errors in King County.

I had asked at the "Recall Reed" blog what law supported their belief that the secretary of state has any authority or responsibility to certify the election of the governor. No answer from them, but it looks as though the Thurston County Superior Court judge has answered the question for them.

It may be interesting to see how the later reports describe the judge's ruling. I wonder if the secretary of state simply argued that he has no such authority, or if something else led to the judge's ruling.

King 5 TV has a similar report, which says that Reed's lawyer argued:

"The law obviously does not allow for an elected official to be recalled based on an action that he was compelled by law to take," assistant attorney general Jeffrey Even told the judge in Reed's defense.
What was Reed compelled to do? I think he was compelled to accept the county election returns of the gubernatorial election and deliver them to the speaker of the house. But, there's still no good description of the argument made by Reed through his attorney in court.

The Olympian has updated their report as of 4:03 P.M. to state in a little more detail what was argued by Assistant Attorney General Even on behalf of Sam Reed:

Even said it wasn't Reed's job to go back and review the results — he said that issue is left to the courts.

``The secretary of state had no choice, under the constitution and statutes of the state of Washington but to do what he did,'' he said.

That sounds close to my argument, but still not detailed enough to say for sure. His reference to the courts as the branch that decides "that issue" obviously doesn't imply a role for the legislature. Was he arguing that the courts are required to canvass the counties' election returns and certify the winner of the gubernatorial election? Surely not.

So, if it wasn't Reed's job to canvass those returns and certify the election, whose job was it? I say it was the legislature's job -- and, after all, the legislature in fact certified that Gregoire was "duly elected." Reed merely delivered a "
summary" of the county election returns to the legislature.

Update: Well, it sure would be nice to know what the judge said. Here's what the AP article in the Seattle Post-Intelligencer said about Reed's attorney's statement:

Even said it wasn't Reed's job to go back and review the results of a contested election - he said that was something that is left to the courts.

"The secretary of state had no choice, under the constitution and statutes of the state of Washington but to do what he did," he said.

That makes little sense. The election wasn't contested until January 7, and Reed signed the "summary" of the counties' election returns on December 30. I don't know when it was delivered to the speaker of the house, but I doubt that it was delivered after January 7.

Update Feb. 15: Well, it seems apparent that Reed’s attorney didn’t argue simply that Reed has no authority to certify the election of a governor.

The court didn’t decide whether Reed’s role is “ministerial” (just collect the returns and deliver them to the speaker of the house) or involves “discretion” (make some judgment about the accuracy and legitimacy of the returns).

I guess this should be expected in this kind of case.

A merely "ministerial" role couldn't have served as a basis for recalling Reed unless he completely failed or refused to collect and deliver the counties' election returns. Of course, there was no such allegation, since he obviously did accept and deliver them.

The court looked to see if -- assuming Reed had discretion -- there was any allegation of abuse of that discretion, and found none. So, even assuming Reed had authority to do anything other than accept and deliver the returns to the speaker of the house, the petition isn't legally sufficient.

The court did rule (pages 6 and 7 of the memorandum opinion) that the secretary of state’s role is to “assist the counties in conducting elections correctly.” That's as close as the judge seems to have come to stating that the secretary of state doesn't certify the election of a governor.

Naturally, I would rather have had an opinion that said plainly one way or the other what the judge held to be Reed’s authority under the constitution, but at least the judge didn’t say that the secretary of state certifies the election of a governor. (The judge used the words, "the act of certification," which is as close as he seems to have come to saying that the secretary of states certifies anything. I suppose the judge was referring to a "certification" that the returns from the counties were accurately stated in the "summary" delivered by Reed to the speaker of the house.)

Here is an excerpt of the final part of the opinion (emphasis added):

The Secretary’s duty to certify the results from the various counties is either ministerial or, if discretion is involved, his discretion would presumably be to determine the significance of any inadequacy or irregularity, the ability for the defect to be cured, and the resulting disenfranchisement of proper voters should he fail to certify the results for a particular county. This would be an area of discretion for him, and the Supreme Court has made it clear that when the act complained of is an exercise of discretion, there must be “fraud or arbitrary, unreasonable misuse of discretion.” Chandler v. Otto, 103 Wn. 2d 268, (1984). No facts have been alleged to show that the Secretary’s exercise of discretion involved fraud or was arbitrary. Nor is there a basis to conclude his action was unreasonable. Whether the act of certification by the Secretary of State is ministerial or discretionary, Charge 9 is legally insufficient in challenging that act.


The gist of the charges before the Court relate to the closely contested election for Governor in 2004. In such a close race, it becomes apparent that election irregularities could have made a difference in the outcome. The election irregularities are alleged to have occurred in counties across the state.

The statement of charges would ask the voters to conclude that the irregularities in the various counties are the responsibility of the Secretary of State and that the problems in the election were a result of his misfeasance, malfeasance, or the violation of his oath of office. In this regard it is important to remember that the elections in Washington were conducted on a county-by-county basis under the authority of elected officials for each county. Within each county are checks and balances to ensure as accurate a vote as possible.

The Secretary of State’s role in the electoral process, then, is to set standards and assist the counties in conducting elections correctly. Despite a great deal of attention to the conduct of the 2004 election, there has been no showing that the Secretary of State conducted his office in bad faith or unreasonably exercised the discretion granted him by law. To allow the submission of a ballot initiative based on the statement of charges in this case would be contrary to the intent of the Legislature, as there has been no showing of impropriety by the Secretary of State. There is not a factual or legal basis for the voters to conclude otherwise.

One last update (I promise): During today's live "chat" session hosted by The Olympian, Sam Reed was asked about his role in certifying the election of the governor. His reply seems to say that he doesn't believe he certifies the election (sorry no link -- I copied this while the "chat" was going on):

Bill, Issaquah: Why did you certify a gubernatorial election that was so obviously and significantly flawed? And why, in the wake of Florida 2000, did you not implement statewide election reforms that would have minimized, if not prevented, the problems seen there and that surfaced, in significant numbers, in Washington in 2004?

Reed: First place, most of the issues about illegal votes, came out after the certification in December, but our Washington State Constitution was written by populists who trusted their local officials and distrusted central authority, so the Consitituion (sic) says the elections will be certified at the local level and that the Secretary of State shall -- not may, shall -- do the same to the Legislature. In the process, the Secretary of State is not in a position to make a decision on the certification.

Sunday, February 13, 2005

Robert Mak's "Up Front" on King 5 TV: Judge hasn't yet ruled

Finally, there is some semblance of accuracy on King 5 TV regarding the rulings made by the judge on February 4 and their impact on the rest of the election contest.

Today, on Robert Mak's show, "Up Front," Mak covered two points of contention after the judge ruled on motions February 4 in the gubernatorial election.

The Democrats claimed that the judge had ruled out the possibility of another election to choose a governor if the November 2004 election is set aside. (The judge, of course, had only ruled on the question before him -- whether he could order a special election this spring.)

As noted on "Up Front," the constitution provides for another election to fill the vacancy that would be created by setting aside the election -- and that election can occur in November 2005.

Mak cut off columnist Peter Callaghan of the Tacoma News Tribune before he could complete his answer to Mak's question asking when the election could occur. Callaghan first stated his understanding that the court could simply nullify the November 2004 election, but Mak interrupted before he could then state when he believed the election could occur.

Mak then tossed in the inapplicable part of the constitution which requires that regular elections of governors occur at the same time as legislators are elected, which Mak suggested would be November 2006.

David Postman of The Seattle Times then corrected Mak by noting that at least one legislator will be elected at the general election in November 2005, so even if that other part of the constitution applied to elections to fill a vacancy in the governor's office, the election could be this November -- not November 2006.

The Democrats claimed the judge had decided that the petitioners must prove that illegitimate votes were actually cast for Gregoire in sufficient number to erase her apparent margin of victory in order to prevail in their contest of the election.

Postman stated on "Up Front" that the judge stated on the record that he was not ruling yet on the required burden of proof. Postman also stated that he had read the transcript of the February 4 court hearing at which the judge made his rulings.

Note that Postman's first article for the Times in the afternoon of February 5 claimed:

The good news for Democrats was Bridges' ruling in Chelan County Superior Court that Republicans must show any illegal votes were cast in favor of Gregoire, and not Republican candidate Dino Rossi. There would have to be enough illegal Gregoire votes to erase her 129-vote victory margin.
At that point, Postman had swallowed what the Democrats were offering -- hook, line and sinker.

He had backed off by the following morning, and was no longer parroting the Democrats' "spin":
A major issue that appeared less than settled yesterday was whether Republicans would have to show that each illegal vote they find was cast for Gregoire and that they can find enough to erase her 129-vote victory margin.
Now, Postman has not only heard with his own ears what the judge said, but has also read the transcript -- and he has spit the hook out.

Peter Callaghan then noted that requiring the petitioners to prove for whom secret ballots were actually cast would be to ask them "to prove the unprovable."

It took more than a week for King 5 TV to catch up with the "spin" from the Democrats and broadcast something resembling an accurate report.

It's better late than never, I suppose.

HB 1604 and the Federal Write-in Absentee Ballot

House Bill 1604 would add a new section to the Revised Code of Washington (RCW) which could be intended to authorize use of the Federal Write-in Absentee Ballot (FWAB) for state and local elections.

NEW SECTION. Sec. 16 (1) If the voter returns voting responses by mail on any form other than the ballot sent, the votes on it are acceptable and will be tallied under the following conditions:
(a) Only votes for offices or measures for which the voter is eligible are counted;
(b) The candidate or measure response position for which the voter is voting can be clearly identified;
(c) The ballot issued is not returned, or if returned, contains no marks or punches indicating an attempt to vote it;
(d) A valid signature on an absentee oath is on file with the county auditor.
The votes accepted must then be duplicated to a ballot that can be read by the electronic voting equipment as prescribed in section 19 of this act.
I haven’t come across a similar provision in any other pending bill.

I don't know what it means when it says, "a valid signature on an absentee oath is on file with the county auditor." Is the oath on the FWAB envelope not sufficient?

Wouldn't it be nice if our legislators would say that this new section is intended to authorize use of the FWAB, if that is what they intend? If the oath on the FWAB envelope isn't sufficient, wouldn't it be nice if they made it acceptable by including such a provision in the law?

As discussed previously, the FWAB would provide a last chance for an overseas voter to cast a ballot in Washington's state and local elections when the voter’s requested absentee ballot hasn’t arrived in time to allow the voter to return it by the deadline.

If Washington does change to a rule which requires receipt of absentee ballots by 8 P.M. on election day, and doesn’t authorize later receipt for overseas voters, then the FWAB will truly be needed more than ever.

The FWAB is stockpiled overseas, where voters – both military and civilian – can obtain one, complete it, and mail it to their state or county election officials.

While e-mail or fax transmissions may allow overseas voters to submit ballots in many cases, the FWAB would allow voting when those electronic means aren’t available.

Washington has had years to authorize use of the FWAB by law.

Instead, we have a peculiar interpretation of RCW 29A.40.050 which isn’t made known to the voters (or anyone for that matter) in written statutes, regulations, or even on the secretary of state’s web site.

Apparently, some county elections officials do accept the FWAB as a way to cast votes in state and local elections, if the secretary of state’s office is correct. But, which counties do so?

Here is an example of the kind of ambiguous information provided to voters on the Kitsap County Auditor’s web page:

Federal Write-In Absentee Ballot
Federal Write-In Absentee ballots may be used by military and overseas civilian voters residing outside the United States if their regular absentee ballot has not been received in a timely manner.

These ballots can be obtained from your Installation Voting Officer or from any US Embassy or Consular Office or you may request the write-in ballot directly from the Federal Voting Assistance Program.

These ballots must be received in the Auditor’s Office by 9:00 am prior to certification of the election, which occurs 10 days after the Primary and 15 days after the General Election.

These ballots are only accepted in Primary and General elections when federal candidates are on the ballot.

The Federal Write-In ballot will be accepted only if you are outside the United States.

The Federal Write-In absentee ballot cannot be used as an application to register to vote in Washington State.
Does the sentence I emphasized with bold print mean the FWAB can be used to vote for state and local elective offices and measures when there happens to be a federal election on the ballot, or does it only mean the FWAB can be used to vote in elections for federal offices as federal law requires?

The federal Voting Assistance Guide doesn’t say that Washington accepts the FWAB for state and local elections, and neither does anything in Washington law.

It is long past the time when this gap in our election laws should have been corrected.

SecState and AG: What do you think "must" means?

House Bill 1604 contains an amusing bit of language.

For ages, the word "shall," when stated in the third person, has been used in the law to state a mandate, obligation or requirement. "The secretary of state shall..." means the secretary of state has no authority to do otherwise than to obey the direction stated in that sentence.

When a government official is authorized to exercise discretion, the word "may" is typically used to express that fact.

Now, not all such directions -- when disobeyed -- require that the action of the officials subject to the order be treated as void or voidable. Thus, not every bureaucrat's failure to obey the rules which govern his job will justify throwing out whatever it was the bureaucrat chose to do rather than obey the law.

Since not all such disobedience voids the bureaucrat's action, some so-called lawyers think "shall" doesn't really mean "shall." They cannot grasp the difference between an obligation to follow the law and a remedy which may be available when a bureaucrat doesn't read or follow the law governing his performance of official duties.

Recall that an Evergreen Freedom Foundation of Washington press release noted an odd reply from a member of the Secretary of State's elections division:

Williams also noted that all eleven proposed rules fail to cite the current law (RCW 29A). Many of the changes suggested by EFF are required by law under the 2003 election reform package, yet the SOS apparently views them as optional.

“We’ve been told by the AG’s office that ‘shall’ really doesn’t mean ‘shall,’” said SOS representative Sheryl Moss, who manages the Certification and Training Program in the State Elections Division.

In HB 1604, this language is included twice:

The secretary of state must adjust his or her rules in accordance with this section.

Ms. Moss, would you please ask those sophists in the Attorney General's office what they believe the word "must" means?

If they claim that neither "shall" nor "must" states a mandate which you have to obey, would you ask them if there is a word which they would acknowledge as stating a mandate?

HB 1256 would eliminate provisional ballots -- but why?

At times like this, one must wonder whether we have people in the legislature who don't have as much sense as God gave a goose.

Representatives Roach, Holmquist and Schindler (Republicans all) have sponsored House Bill 1256, which would eliminate the use of provisional ballots.

If enacted, their bill would create two entirely different voting procedures -- one for state and local elective offices and measures, and one for federal elective offices.

Section 302 of the federal law called the "Help America Vote Act of 2002" requires the use of provisional ballots in "an election for federal office."

So, if provisional ballots were eliminated from use in state and local elections, they would still be required whenever a federal office is on the ballot.

Aside from the complications that would be introduced by HB 1256, what good reason is there for eliminating provisional ballots?

Whenever an eligible, registered voter appears at the polls and is informed that the poll book doesn't show that voter's name, the provisional ballot allows the voter to cast a ballot which can later be rejected or accepted once the voter's status is confirmed.

What would happen without the use of a provisional ballot when an eligible, registered voter's name is omitted from the poll book by error?

That voter would be denied the right to cast a ballot in state and local elections on that particular election day.

Is there some good reason for denying the right to vote when a voter is the victim of a clerical error?


Unfortunately, the procedure followed by our legislature doesn't include a requirement that sponsors of bills explain in writing the rationale they believe supports passage of their bills.

So, we may never know what went through the minds of these three Republicans when they introduced this bill.

Surely, the bill will not get past the State Government Operations and Accountability Committee -- assuming there are people on that committee who have more sense than Rep. Schindler, their fellow committee member.

Saturday, February 12, 2005

Election Reform Task Force feedback form

HannaUSA suggested sending written comments to the "Election Reform Task Force" in a comment at this entry.

I had earlier looked for a way to do so, but didn't find any indication that they were accepting written comments.

Trying again, I found this site. In the upper left corner of the web page is a menu that includes a link to their feedback form.

It's unwieldy for anything other than indicating a preference on their ideas for reform ("1" through "5" with "5" expressing the strongest feeling or agreement).

It does provide a couple of places to type in two ideas that they haven't included on the list.

So, I didn't even get down to my third suggestion: restricting absentee voting to people who are actually not able to go to the polling places; and thereby eliminating permanent absentee status and vote by mail ballots, since the voters cannot conceivably prove their identities when mailing ballots in -- signatures being impractical as a means of identification when election workers' eyes glaze over after verifying the first few hundred of them. Photo ID ought to be required of all voters at the polling places, and no one should be allowed to skip that requirement to prove identity by simply choosing to vote by mail.

But, for what it's worth, there is a way to provide limited written comments to the task force.

Section 12 of SB 5740 and HB 1752 violates state constitution

As previously discussed, the secretary of state has no role other than that of courier in the certification of the election of a governor or any other state executive officer listed in Article III, section 1 of the Washington constitution.

Up to now, there is no law which purports to give the secretary of state authority to certify the election of such officers; but section 12 in both Senate Bill 5740 and House bill 1752 would authorize the secretary of state to certify those elections.

If the legislature enacts either bill as it is now worded, they will have proven one of two things. Either they didn’t mean it when they swore to uphold the constitution, or they don’t have the ability to read and comprehend the constitution.

Even if the constitution’s provisions are perceived by many people to be impractical or inconvenient, the constitution is the controlling legal authority which must be amended to allow a different procedure – not ignored or violated.

Article III, section 4 states with respect to the election of officers listed in section 1:

SECTION 4 RETURNS OF ELECTIONS, CANVASS, ETC. The returns of every election for the officers named in the first section of this article shall be sealed up and transmitted to the seat of government by the returning officers, directed to the secretary of state, who shall deliver the same to the speaker of the house of representatives at the first meeting of the house thereafter, who shall open, publish and declare the result thereof in the presence of a majority of the members of both houses. The person having the highest number of votes shall be declared duly elected, and a certificate thereof shall be given to such person, signed by the presiding officers of both houses; but if any two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses. Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law. The terms of all officers named in section one of this article shall commence on the second Monday in January after their election until otherwise provided by law. [Emphasis added.]
This section of the constitution clearly and unambiguously assigns to the legislature the authority and responsibility to certify the election of the governor and other executive officers listed in section 1.

The election returns from the county election officers are “sealed up” and are to remain “sealed up” until the time comes for the speaker of the house to “open, publish and declare the result thereof in the presence of a majority of the members of both houses” of the legislature.

No amount of creative interpretation can avoid the plain meaning of the words. The legislature must canvass those returns (that is, examine them to determine their accuracy) before issuing a certificate of election declaring any candidate to be the duly elected governor, lieutenant governor, etc.

Section 12 of SB 5740 and HB 1752 would amend one of the relics in state law that have survived from the time before the legislature began to violate Article III, section 4.

As noted previously, RCW 29A.60.250 states, “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.”

Note that RCW 29A.60.250 says nothing which would even hint that the secretary of state canvasses the election returns for Article III, section 1 officers, and doesn’t mention transmitting a copy of any result of his canvass of returns to the legislature.

RCW 29A.60.250 doesn’t unconstitutionally take the authority and responsibility from the legislature and give it to the secretary of state. It leaves the responsibility and authority for canvassing the counties’ election returns and certifying the election of the state executive officers listed in Article III, section 1 where the constitution put it – with the legislature.

Of course, neither the requirements of the constitution nor the absence of statutory authorization has prevented the secretary of state and legislature from following a practice of having the secretary of state open and announce the counties’ election returns and provide a summary of those returns to the legislature – as was done in the last general election.

The report submitted by the secretary of state to the legislature didn’t purport to be anything other than a “summary of the results as certified and transmitted by the county canvassing boards.” But to provide that summary, Sam Reed had to open the “sealed up” county election returns in violation of the constitution. (I have no objection to publicizing the county election returns, since they aren’t supposed to be secret. However, I do object to inserting the secretary of state into the process in a way that makes it appear the legislature isn’t the body charged with the responsibility to certify the election results.)

One should also note the wording of the certificate of election issued to Gregoire (see exhibit D in the pdf document at this link) on January 11 and again on January 18 by the speaker of the house and president of the senate:

This is to Certify, That at the General Election held in the State of Washington on November 2, 2004, Christine Gregoire received the highest number of votes cast for the office of Governor of said state of Washington, and was therefore duly elected to said office as appears from the official returns of said election as canvassed and certified in the manner provided by law. In Testimony Whereof, with the Speaker of the House of Representatives having opened, published, and declared the election results in the presence of a majority of the members of both houses on January 11, 2005 A.D., we have hereunto set our hands on this certificate and caused the Seal of the State of Washington to be affixed this 18th day of January 2005 A.D., at Olympia, the State Capital.
The certificate was signed by the issuing officers: the speaker of the house and president of the senate. It was witnessed by the secretary of state. Its wording is very close to that of Article III, section 4 – even though the people signing the certificate knew that the requirements of the constitution had not been followed. (The certificate issued on January 11 erroneously stated the date as January 10, so this subsequent certificate was issued on January 18 to correct that error.)

If SB 5740 or HB 1752 were enacted, it would amend RCW 29A.60.250 as follows:

Sec. 12 RCW 29A.60.250 and 2003 c 111 s 1525 are each amended to read as follows:
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 -)) ((+ and certify the returns of the general election as to candidates for state offices, the United States senate, congress, and all other candidates whose districts extend beyond the limits of a single county. The secretary of state shall transmit a copy of the certification to the governor, president of the senate, and speaker of the house of representatives. +))
With that amendment, the words which now recognize the legislature’s constitutional responsibility would be deleted; and in their place would be words which unconstitutionally authorize the secretary of state to open the “sealed up” returns, canvass them, certify the results, and transmit a copy of the certification to the legislature.

What will it take to get the legislators to read and comprehend the constitution they all took an oath to uphold?

The procedure required by the constitution may not be the most desirable procedure, but that’s why amendments to the constitution are authorized – so it can be changed if a change is believed to be needed.

It is neither lawful nor right to ignore the constitution’s requirements, no matter how long the people who swore not to ignore them have been ignoring them.

Ignoring the constitution's requirements has already put us in a mess. The legislature couldn't comprehend the need to decide a contested election before certifying that Gregoire was "duly elected," so we have a person in the governor's office who cannot be said by any reasonable person to have been duly elected to that office.

Several of the legislators claimed during debate on January 11 that the legislature has no role in deciding the contested election. It was even claimed that the certificate of election must be issued despite the contest to the person who appeared to have the highest number of votes.

That's the kind of muddled substitute for rational thought that has to be used when the constitution's express requirements are violated.

Any rational person ought to have been bothered by the issuance of a certificate which declared that Gregoire had been "duly elected," but there was an obvious shortage of honest and rational thought in the legislature on that day.

At some point, the legislators need to begin to obey the constitution until it is amended to provide a procedure that they apparently prefer.

Friday, February 11, 2005

Correct errors by recanvass or by election contest?

A provision in Senate bill 5499, sponsored by Senators Kastama (D) and Berkey (D), clashes with a similar provision in Senate bill 5740, sponsored by Senator Berkey at the request of the secretary of state. [Update Feb. 12: House bill 1752 appears to be identical to SB 5740, so it seems that the same proposals are being considered in both houses at the request of the secretary of state. Also, I should have noted that this previous entry discussed parts of SB 5740.]

Senator Kastama chairs the Senate Government Operations and Elections Committee, and Senator Berkey is the vice-chairperson of that same committee.

Senator Kastama's version seems to be a better way to handle the situation that can arise when errors by county auditors or their employees or agents cause discrepancies which are discovered during a recount.

During the second recount of the votes in the last general election, King County discovered several hundred ballots had been erroneously excluded from the count and recount. The case went to the supreme court, which determined that the statute allowed recanvassing of those ballots to determine whether they were valid. Since the statute didn't clearly state that recanvassing was allowed only prior to initial certification, the court didn't restrict it to that period of time.

The bill sponsored by Senator Berkey would amend the statute to state that recanvassing is allowed only during the initial vote count, i.e., prior to the initial certification of results.

The bill sponsored by Senators Kastama and Berkey would amend the statute to state that recanvassing is allowed during the initial count and any recount process to correct such errors.

If errors by elections officials and their agents and employees cause a discrepancy that deserves to be corrected to arrive at an accurate and legitimate election return, why not recanvass those particular ballots to try to resolve the discrepancy?

If legitimate ballots might be excluded absent recanvassing, or if illegitimate ballots might be left in the vote count absent recanvassing, what good reason is there to prohibit recanvassing them to try to correct the errors?

Wouldn't the errors be a basis for contesting the election after the results are "certified" by county canvassing boards who would have been prevented from trying to correct the errors by Senator Berkey's bill?

Since the choice is to correct errors prior to certifying the recount results or to correct them after certification through a contest of the election, it seems better to use recanvassing as a means to try to reach a true, accurate and legitimate count of the votes.

Besides, what good reason is there to keep out legitimate votes or keep in illegitimate votes just because the errors weren't discovered until the recount was ordered and before it was completed? It seems there is a fear that recanvassing allows an opportunity for skullduggery, but should we eliminate an opportunity to correct errors based on that fear?

Sections 9 and 10 of Senate Bill 5740 (sponsored by Senator Berkey at the request of the secretary of state) require initial certification of election results by the 20th day after a general election, and limit recanvassing to correct errors to the initial 20-day period:

Sec. 9 RCW 29A.60.190 and 2004 c 266 s 18 are each amended to read as follows:
(1) On the tenth day after a special election or primary and on the ((- fifteenth -)) ((+ twentieth +)) day after a general election, the county canvassing board shall complete the canvass and certify the results. Each absentee ballot that was returned before the closing of the polls on the date of the primary or election for which it was issued, and each absentee ballot with a postmark on or before the date of the primary or election for which it was issued and received on or before the date on which the primary or election is certified, must be included in the canvass report.
(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

Sec. 10 RCW 29A.60.210 and 2003 c 111 s 1521 are each amended to read as follows:
Whenever the canvassing board finds that there is an apparent discrepancy or an inconsistency in the returns of a primary or election ((+ caused by an error by the county auditor or his or her staff +)), the board may recanvass the ballots or voting devices in any precincts of the county. The canvassing board shall conduct any necessary recanvass activity on or before the last day to certify the primary or election ((+ under RCW 29A.60.190, +)) and correct any error and document the correction of any error that it finds.

Section 13 of Senate Bill 5499, sponsored by Senators Kastama and Berkey, states:

Sec. 13 RCW 29A.60.210 and 2003 c 111 s 1521 are each amended to read as follows: Whenever the canvassing board finds ((+ during the initial counting process, or during any subsequent recount thereof, +)) that there is an apparent discrepancy or an inconsistency in the returns of a primary or election, ((+ or that election staff has made an error regarding the treatment or disposition of a ballot, +)) the board may recanvass the ballots or voting devices in any precincts of the county. The canvassing board shall conduct any necessary recanvass activity on or before the last day to certify ((+ or recertify +)) the ((+ results of the +)) primary ((- or -))((+ , +)) election ((+ , or subsequent recount +)) and correct any error and document the correction of any error that it finds.

SB 5499 requires ID to vote -- sort of

This new section would be added to the law by Senate Bill 5499:

"NEW SECTION. Sec. 10 A new section is added to chapter 29A.44 RCW to read as follows: Any person desiring to vote at any primary or election is required to provide identification to the election officer before signing the poll book. The identification required in this section can be satisfied by providing a current and valid driver's license or state identification card, a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and a photo, signature, or address of the voter. The name must match the name in the poll book and the identification must also provide a photo, signature, or matching address. Any individual who desires to vote in person but cannot provide identification shall be issued a provisional ballot. The secretary shall conduct an educational campaign to inform voters of the identification requirement under this section." [Emphasis added.]

Note the word "or" where it appears in the list of acceptable forms of identification and in the required elements to prove identity. Anyone who cannot present an identification card on which there is a photograph of the person to whom the card is supposed to belong can get by with the other forms of identification which don't have photographs on them.

While this new section looks good at first glance, it actually only requires a utility bill or bank statement on which the name and address of the registered voter appear.

That's better than nothing, but I would prefer that voters show the same kind of proof of identity that would be required for all other important transactions, e.g., cashing a personal check or boarding a commercial airliner.

The signature in the poll book doesn't keep illegitimate ballots out of the ballot box. No one verifies the signature before the ballot goes into the box, and once in the box it cannot be retrieved and segregated from the legitimate ballots.

Requiring proof of identity through the use of an identification card that has the person's photograph on it isn't a perfect way to prevent fraud, but it's probably the only practical way to try to prevent it.

SB 5499, section 3 -- They must be kidding!

An "election reform" bill sponsored by Senators Kastama and Berkey (the chairperson and vice-chairperson of the Senate Government Operations and Elections Committee) includes this nonsensical provision:

"NEW SECTION. Sec. 3 A new section is added to chapter 29A.08 RCW to read as follows: The county auditor shall make and preserve a copy of the county list of registered voters ten days before the primary or election. After certification of the election, the county auditor shall compare the number of votes cast at the election with the copy of the list of registered voters created under this section." [Emphasis added.]

Surely, they are just kidding.

We already have in the existing law a requirement to include in the official election returns from each county the number of registered voters and the number of votes.

This would simply tell the county election officers to "compare" those numbers -- after they have already certified their official election returns.

It is obvious that the problem in the last election which caught the most attention -- justly so -- was the inability of King County to reconcile the number of voters who participated in the election with the number of ballots on which the votes were counted.

"Voterless ballots" are an indication that the ballot boxes were stuffed or that someone managed to insert a lot of ballots into the count after the closing of the polls while the ballots were being processed at the counting centers.

This silly new section that would be added to the laws by section 3 of Senate Bill 5499 accomplishes nothing at all, much less does anything about the failure to find and report discrepancies ("voterless ballots") prior to certification of the counties' election returns.

What we need is a requirement that the county canvassing boards reconcile the numbers of voters who participated and the ballots on which votes were counted.

If those numbers don't match, then the canvassing board needs to decide what to do about the obvious question raised by the fact that they don't match. It is incorrect, if not an intentionally false statement, to certify that the reported vote totals are the true and accurate numbers of legitimate votes cast in the election when there are significant discrepancies that indicate the presence of substantial numbers of illegitimate ballots.

Thursday, February 10, 2005

Senate Bill 5740 may have the inside track

Senate Bill 5740 is probably an election reform bill that’s worth watching. Its prime sponsor is Senator Berkey, the vice chairperson of the Government Operations and Elections Committee. It was introduced at the request of the secretary of state.

Unfortunately, there seems to be little in it that increases the probability that our election outcomes will be decided by the legitimate votes of eligible voters.

Section 1 does require that provisional ballots be distinguishable from regular ballots and be in a form which cannot be put into polling place vote counting machines – which is obviously a good idea.

Section 2 deals with processing of absentee ballots that are returned by voters, and seems not to add anything significant to the process which would protect the integrity of our elections.

It does say: “A voter may not cure a missing or mismatched signature for purposes of counting the ballot in a recount." This would cut out some of the skullduggery we saw in the last general election.

However, section 2 doesn’t add a requirement to take any steps to prevent absentee voters from casting more than one absentee ballot in an election. So far as I can tell, no law or regulation requires any procedure that would make detection and rejection likely for the second, third or thirtieth ballot from a voter who managed to get hold of more than one ballot. And, there is apparently no procedure being followed by the more populous counties to prevent it.

RCW 29A.40.110 sets the requirements for verifying the receipt or postmark prior to election day and for examining the signature to see if it matches the one on file, but it says nothing about checking to see if another ballot has already been received from the voter.

WAC Title 434, Chapter 240 requires procedures to ensure that people cannot vote by absentee ballot and also at the polls.

The poll books are marked to identify voters who were issued absentee ballots, so they would be issued provisional ballots if they also showed up at the polling places.

When absentee ballots are issued after the poll books are prepared, there is a requirement to check the poll books before counting the votes on the absentee ballots to see if the voter also voted at the polls.

But, there is nothing to keep a person who gets hold of more than one absentee ballot from voting more than once.

Since there is a requirement to keep a record of the date that each absentee ballot is received from the voters, there must be some database which could provide the needed information to a counting center worker who is about to verify the signature on the envelope of a recently received absentee ballot.

The “audit trail” required by WAC 434-240-270 only requires a reconciliation of the number of ballots received and the numbers of ballots accepted and rejected. There’s no reconciliation of the number of voters who participated by absentee ballot and the number of absentee ballots accepted.

Maybe someone thinks the county elections officials would take steps to keep people from voting more than once per election by absentee, but I doubt that it is a reasonable assumption.

If it’s not spelled out in the law, I don’t think the bureaucrats can be relied upon to do it. (They don’t even comply with things that are spelled out plainly in the law!)

Enough for now on SB 5740 – there will probably be more later.

Tuesday, February 08, 2005

Matching one voter to one ballot on election day

Much talk back and forth has occurred regarding the need to count the signatures and the ballots at the polling places after the polls are closed.

It's an old, common sense idea -- a way to find out at the earliest possible time whether there is a discrepancy which may cast doubt on the legitimacy of the election.

Washington law requires that this be done -- and requires the polling place officers to note any discrepancy between the number of signatures in the poll book and the number of ballots in the ballot box.

Unless this law was utterly ignored (despite the repetition of much the same thing in the SecState's August 2004 emergency rules), there ought to be a written record of any discrepancies for each polling place.

I wonder what the records from King County show. Did they obey this law? Were any discrepancies noted and recorded when this reconciliation of the numbers of participating voters and ballots in the ballot box was done?

If there were no discrepancies, then it might be interesting to see what happens when a person with an adding machine simply totals the numbers on those polling place records. Perhaps we would find out whether the number of ballots on which King County counted the votes was the same as the number of ballots and signatures on those reconciliation records.

Using those same poll books, King County cannot account for the presence of more than 1800 ballots which they included in their tallying of the votes.

What did those poll books show on the evening of election day, after the polls closed?

Do all the copies of the lists of participating voters which the precinct inspectors were required to retain agree with the poll books?

Here are the statutes:

RCW 29A.44.231 Record of participation.
As each voter casts his or her vote, the precinct election officers shall insert in the poll books or precinct list of registered voters opposite that voter's name, a notation to credit the voter with having participated in that primary or election. No record may be made of a voter's party affiliation in a partisan primary. The precinct election officers shall record the voter's name so that a separate record is kept. [Emphasis added.]
[2004 c 271 § 138.]
No link between voter and ballot choice: RCW 29A.08.161.

RCW 29A.44.280 Duties of election officers after unused ballots secure.
Immediately after the unused ballots are secure, the precinct election officers shall count the number of voted ballots and make a record of any discrepancy between this number and the number of voters who signed the poll book for that precinct or polling place, complete the certifications in the poll book, prepare the ballots for transfer to the counting center if necessary, and seal the voting devices.
[2003 c 111 § 1127; 1990 c 59 § 53. Formerly RCW 29.54.015.]
Intent -- Effective date -- 1990 c 59: See notes following RCW 29A.04.013.

Sunday, February 06, 2005

What in the Sam Hill case applies?

In Hill v. Howell, 70 Wash. 603, 127 Pac. 211 (1912), the supreme court made some statements which might be of precedential value in the current gubernatorial election contest – and at least one statement which should not be treated as a controlling precedent.

Quite a bit of attention has been given to the court’s statement that a questioned vote must be treated as a legitimate vote, if the court cannot determine from the evidence for which candidate the vote was cast.

The particular vote in the Hill case was not an “illegal vote” as that term is used in RCW 29A.68.020(5), RCW 29A.68.090, RCW 29A.68.100, and RCW 29A.68.110.

It was a vote cast by a qualified, eligible voter who voted only once.

The court did not even hold that it was an illegal vote in any sense of that term.

Whatever might be made of the court’s statement, it cannot properly be relied upon as a controlling precedent in an election contest when interpreting the meaning of the phrase “illegal votes” in current statutes.

Sam B. Hill contested the result of a primary election at which he lost to a candidate named R. S. Steiner in his bid to be a candidate for a nonpartisan position on the superior court during the ensuing general election.

Steiner’s vote total was five votes more than that of Hill.

The supreme court directed that a commissioner be appointed to inquire into the facts and submit a report to the court.

The commissioner’s findings of fact, as adopted by the supreme court, reduced Steiner’s margin of victory to two votes. One man who would have voted for Hill was improperly denied the right to vote when the polling place was closed earlier than provided by law, so Hill’s total was increased by one vote as a remedy. Two men who were not qualified to vote because they were illiterate had voted for Steiner, so their two votes were subtracted from Steiner’s total.

One man’s vote was cast under irregular circumstances, which led to this statement by the court:

It is clear that there was but one vote that can be said to be irregular that actually got into the ballot box, namely, the vote of elector Tapley. But neither the findings of fact, nor the affidavit made by Tapley in support of the application for the writ of mandamus, although the affidavit sets forth the facts fully, show for whom the elector voted. If this was an illegal vote it was proper to show for whom the elector voted, and since the fact [pg. 611] is not shown, it must be treated between the parties as a legitimate vote. [Emphasis added.]
Note that the court didn’t even hold that Tapley’s vote was an illegal vote. Instead, the court stated, “there was but one vote that can be said to be irregular,” and “If this was an illegal vote....”

The findings of fact quoted by the court on page 606 show that the only real question regarding Tapley’s ballot was whether it had been altered by the lone precinct official between the time Tapley departed from the polling place and the time the other two precinct officials returned from their lunch break:

There is in the County of Grant a precinct named Beverly, at which on primary election day the polls, which were in charge of E.R. Sollberg, as inspector, and Mack Morrison and . . . Broderick as judges, were held at the school house in said precinct, and were opened about 10 a.m. of that day, and up to the noon hour about four ballots had been cast. At the noon hour all three of the election officers locked the door and left the building for lunch, leaving the ballot box on the desk in the school house. Said Mack Morrison was away during the noon hour about half an hour, during most of which time he could see the polling place. He returned to the polling place, and about an hour after doing so the other election officers arrived, and the polls were kept open thereafter until about five thirty to six p.m., at which time they were closed, and the count of the votes completed about seven to seven thirty p.m., at which time the election officers left the polling place. Upon the return after noon of election officers Sollberg and Broderick, officer Morrison being already there, Morrison picked up a ballot saying it was the ballot of one Tapley, and Sollberg, who did not see Tapley that day, put that ballot into the ballot box. [Ellipsis points in original; emphasis added.]
Since only one precinct official had been present when Tapley cast his ballot, and since that official had Tapley’s ballot in his sole possession until the return of the other two officials, the casting of that ballot had been irregular. No other election official was present as required to ensure the integrity of the election with regard to that one ballot.

There was no question raised about the fact that Tapley was a qualified, eligible voter who voted only once; but there was apparently no way to know, except from the testimony of the lone election official, whether Tapley’s ballot – as he had marked it – was placed into the ballot box.

If the evidence had shown that Tapley voted for either Hill or Steiner and that his ballot wasn’t altered by the lone precinct official, then the vote totals would have remained the same as the official returns.

If, instead, the evidence had shown that the lone precinct official altered Tapley’s vote to make it appear he voted for Hill, then Hill’s vote total would have been reduced by one vote and Steiner’s total would have been increased by one – making Steiner’s margin of victory greater.

If, on the other hand, the evidence had shown that Tapley’s vote had been altered to make it appear to be a vote for Steiner, then Hill’s total would have been increased by one and Steiner’s total would have been reduced by one – resulting in a tie in the election result.

So, there was a possibility that Tapley’s vote could have affected the outcome, changing it from a victory for Steiner to a tie – but there was no evidence which indicated that Tapley’s ballot had been altered in any way.

Under such circumstances, the court should simply have found that the vote must be treated as a legitimate vote – not because it couldn’t be attributed to one candidate or the other, but because there was neither evidence tending to show that it was an illegitimate vote nor good reason to reject all the ballots from that precinct based on the presence of this one questioned ballot.

Then, the court would have been left with the same question it had set out to answer with regard to the votes cast in the Beverly precinct. Hill requested that all the votes be rejected, and the court needed to decide whether to grant that relief.

Note that the statement about Tapley’s vote was made in the context of deciding whether to grant the requested relief. The court stated at pages 610 – 611:

Turning to the immediate question, it seems to us that there is no reason to reject the returns made from Beverly precinct in their entirety. It is clear that there was but one vote that can be said to be irregular that actually got into the ballot box, namely, the vote of elector Tapley. But neither the findings of fact, nor the affidavit made by Tapley in support of the application for the writ of mandamus, although the affidavit sets forth the facts fully, show for whom the elector voted. If this was an illegal vote it was proper to show for whom the elector voted, and since the fact [pg. 611] is not shown, it must be treated between the parties as a legitimate vote. Neither of the candidates were responsible for the manner in which the vote got into the ballot box, and both being innocent of wrongdoing, it would be an injustice to charge the error to either of them. [Emphasis added.]

The court went on to state on page 611 that there was no other evidence tending to show that the Beverly precinct ballots were of questionable validity. In fact, the evidence tended to show that no one had tampered with the ballot box or its contents:

But counsel argue that the vote of the precinct ought to be rejected because of the fact that the polls were closed for the noon hour, without any guard over the ballot boxes. But it is not shown that harm resulted from this fact. The door of the building in which the ballot boxes were left was locked during the interim, and there is absolutely no proof that the ballot boxes were in any manner disturbed. On the contrary, proofs or inferences are all the other way. By the statute, poll lists are required to be kept by the election officers, and the returns of the election should show a name of an elector for each ballot in the ballot box. There is no claim that there was any discrepancy in the returns in this respect, and this fact precludes the idea that the ballot boxes were tampered with during the absence of the election officers. [Emphasis added to point out the age of the common sense idea that the number of signatures on the poll book should match the number of ballots in the box – as a means of ensuring the integrity of the election.]

The court, at pages 612–613, quoted with approval a passage in an encyclopedia of laws which stated how to handle a request to reject the votes from an entire precinct:

"Where an election appears to have been fairly and honestly conducted, it will not be invalidated by mere irregularities which are not shown to have affected the result, for in the absence of fraud the courts are disposed to give effect to elections when possible. And it has even been held that gross irregularities not amounting to fraud do not vitiate an election. Where the legislature declares a certain irregularity in election procedure to be fatal to the validity of the returns, the court will effectuate that command. And while the conduct of election officers may, although actual fraud be not apparent, amount to such gross negligence and such a disregard of their official duties as to render their return unintelligible or unworthy of credence. But the power to throw out an entire division is one which ought to be exercised with the greatest care and only under circumstances which demonstrate beyond all reasonable doubt that the disregard of the law has been fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and [page 613] what are unlawful, or to arrive at any certain result whatever, or where the great body of the voters have been prevented by violence, intimidation, and threats from exercising their franchise." 15 Cyc. 372.

Clearly, the circumstances in the Beverly precinct didn’t involve such disregard by the election officials for their duties as to justify rejecting all the votes from that precinct. One vote that might have been altered – but was not shown to have been altered – couldn’t reasonably justify such a drastic remedy.

Saturday, February 05, 2005

Democrats wish and hope as judge rules

The news media generally got it wrong yesterday when they tried to describe the content and effect of the judge’s rulings in the contested gubernatorial election, but by this morning they seem to be coming around to an understanding of the actual effect of the rulings.

Regarding the Democrats’ argument that the Republicans must prove for whom illegal or invalid votes were cast, the judge ruled in favor of the Republicans (at least, according to the Seattle Post-Intelligencer):

The judge also rejected an argument by Democrats that the case should be dismissed because Republicans had not shown specifically that any of the hundreds of votes they've alleged were illegally cast in the case accounted for Gregoire's margin of victory.

Bridges ruled that, at least in this pre-trial stage of the case, Republicans need not show such proof.
In other words, the judge has not said that the petitioners must prove for whom any questioned votes were cast.

Regarding the Democrats’ claim that the judge has ruled out the option of electing a new governor to fill a vacancy in the office in the event that the petitioners prevail, the judge did not rule out an election in November (again, according to the Post-Intelligencer):

The only way to attain a legitimate election, Republicans have consistently argued, would be a revote -- a new election between the two candidates. They specifically called for a revote in their lawsuit filed in court last month.

But with the judge's ruling yesterday, that's not going to happen -- at least not one ordered by Bridges.

He cited state law and constitutional provisions saying that even if the election was tossed out and Gregoire removed from office, such a vacancy for governor could only be filled during the next general election in which voters are allowed to vote for the state's executive office.
The idea that the next general election is the earliest time at which the vacancy could be filled by a vote of the citizens was discussed earlier, and won’t be repeated here. Clearly, though, the judge did not rule against having the voters choose a new governor in the event that the election is set aside.

There is one statute that should be specifically noted in light of the assertion made by the Democrats’ lawyers that the judge must choose either Rossi or Gregoire as the new governor:

RCW 29A.68.050
Witnesses to attend -- Hearing of contest -- Judgment.

The clerk shall issue subpoenas for witnesses in such contested election....

The court shall meet at the time and place designated to determine such contested election by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable, and may dismiss the proceedings if the statement of the cause or causes of contest is insufficient, or for want of prosecution. After hearing the proofs and allegations of the parties, the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.

If in any such case it shall appear that another person than the one returned has the highest number of legal votes, said court shall declare such person duly elected. [Emphasis added.]
Note the word “if” at the beginning of the last sentence – the court shall declare a winner, if the evidence persuades the court that a winner can be determined.

The court is obviously not required to declare a winner, but is required either to confirm or annul the election.

Meanwhile, David Postman of The Seattle Times is clinging to the Democrats’ version of the judge’s ruling about the eventual need to prove for whom the votes were cast:

A major issue that appeared less than settled yesterday was whether Republicans would have to show that each illegal vote they find was cast for Gregoire and that they can find enough to erase her 129-vote victory margin.

Democrats argue that that's the standard set in law. Republicans have said they only need to show there were enough illegal votes to make the true results of the election unknown.

Bridges said that at least at this point in the case, it is "sufficient to state generally" that there are enough illegal votes to cast doubt on the true outcome of the election.

While it would naturally be better to have a transcript or videotape of the judge’s actual statements from the bench, it seems from a comparison of this morning’s reports in the two major Seattle newspapers that the “PI” is hewing closer to what the judge said – and the Times is treating the out-of-court statements of the Democrats’ lawyers as reliable indicators of the effect of the judge’s rulings.

This part of the report by the Times seems to hint at the truth of the matter:

Bridges said in Chelan County Superior Court that allegations in the lawsuit filed by Republican candidate Dino Rossi and Republican voters, if proved at trial, would be sufficient to overturn the election. And he denied a Democratic motion to limit any challenge to issues of fraud and illegal votes, saying misconduct or neglect by election officials would also be sufficient grounds for setting aside the election.

The election statutes do indeed make it very hard to prevail on the basis of “illegal votes.” Prior to trial, RCW 29A.68.100 requires the petitioner to provide a list of the names of the people who allegedly cast “illegal votes,” and no evidence about any other “illegal votes” can be introduced. Under RCW 29A.68.110 the court is supposed to determine whether it “appears” that the “illegal votes” were cast for one candidate or the other, and the court isn’t supposed to set aside the election based on “illegal votes” unless it “appears” that taking away the “illegal votes” cast for the apparent winner would erase the apparent margin of victory.

It seems obvious that the legislature has made it difficult, if not practically impossible, to prevail in an election contest based solely on “illegal votes.”

Probably, that is why the supreme court in both Foulkes v. Hays and Gold Bar Citizens v. Whalen didn’t include within the term “illegal votes” any votes which don’t have to be included. Otherwise, there would be a clear miscarriage of justice in cases like Foulkes when the ballots were altered by someone after they were cast by the voters.

The Republicans aren’t contesting this election based solely on “illegal votes,” as recognized by the judge when he stated that “misconduct or neglect by election officials would also be sufficient grounds for setting aside the election.”

If the evidence shows that votes were counted on far more ballots than there were eligible voters who participated in the election, then it is obvious that some neglect or misconduct by election officials occurred. Somehow, ballots that were not legal got into the ballot boxes and the votes on those ballots were included in the returns. Ballot boxes aren’t stuffed innocently, nor are they stuffed without at least some neglect on the part of the people charged with the responsibility for ensuring the integrity of our elections.

For those ballots which were not legally cast by any known eligible voter, there is no requirement to prove for whom the votes were cast.

All things considered, it seems the citizens who want a duly elected person to be in the governor’s office will have to wait until November 2005 to choose that person – assuming the evidence is found to be sufficient to annul the election and void the certificate of election that put Gregoire in office before anyone could know if she is the duly elected governor.

The people who simply want Gregoire to be in office, no matter what, will get their wish for a little while longer.

Friday, February 04, 2005

No special election says the judge

The superior court judge ruled that Republicans can't get what they wanted -- a special election as soon as practicable -- even if they win on the merits.

That leaves the general election in November 2005, as discussed here, as the election at which to fill the vacancy in the governor's office, assuming a vacancy is created by setting aside the election and declaring the certificate of election void.

Other than that, it appears the Gregoire gang lost on all points today.

Now, hurry up and get to the merits!

If Gregoire isn't rightfully in office, she needs to vacate that office ASAP.

Wednesday, February 02, 2005

Gregoire keeps her powder dry

As reported in today's edition of the Seattle Post-Intelligencer, Gregoire has decided not to make a budget proposal to the legislature just yet:

OLYMPIA -- Anticipating a brighter-than-expected revenue forecast in March, Gov. Christine Gregoire said she will wait an extra month to release her first state budget proposal.

Gregoire had previously set Feb. 23 as the deadline for unveiling her 2005-07 budget, including her plan for bridging the state's projected $1.8 billion shortfall.

"I'm now going to wait," she said yesterday.

It would be an odd thing to let more time go by without making such a proposal, except for the fact that Gregoire's right to be in the governor's office has not been determined.

She knows that it's probable she will be removed from office when the contested election is decided, and she doesn't want to put herself at a disadvantage in the ensuing campaign by showing the voters what she would do regarding taxes and spending.

So, she waits and continues to give the impression that she doesn't favor tax increases:

The governor said she wanted to see the revenue forecast from Washington's chief economist, Chang Mook Sohn, due March 17, before completing her plan.

"I've bought myself some more time," Gregoire said. "I will never be able to create a budget from scratch with the amount of time I have. But my instructions remain the same. ... Give me a budget that has no new revenue."

It's not that Gregoire is promising not to raise taxes. She is keeping the option available by beginning to portray the alternatives as unacceptable:

Gregoire said it's still too early to talk about the possibility of raising taxes but wasn't thrilled about the trade-offs her top budget writer recommended instead of a tax proposal.

What do those trade-offs look like?

"This ugly one for that ugly one," Gregoire said.

Once her election is declared void by the court, Gregoire will need to go back on the campaign trail -- seeking enough legal votes to win legitimately.

She doesn't want to have to explain during the campaign a budget proposal that calls for higher taxes, if she can avoid it.

By March 17, one would hope the courts will have concluded their part in deciding the contested election.

If not, what will Gregoire do then to delay showing the voters just what she wants to do as governor? At some point, she can no longer keep her powder dry while waiting for the next campaign to begin.

Tuesday, February 01, 2005

A different kind of martyr

An article in today's edition of The New York Times describes the courage displayed by ordinary Iraqis when they went to the polling places on Sunday to cast their votes:

The victims of election day violence are being hailed by many Iraqis as the latest shuhada, or martyrs, in a nearly two-year insurgency that has claimed the lives of thousands. They were policemen who tried to stop suicide bombers from entering polling centers, children who walked with elderly parents to cast votes, or - in the case of Mr. Yacoubi - a simple fishmonger who, after voting, took tea from his house to electoral workers at the school.

At those polling centers wracked by explosions, the survivors refused to go home, steadfastly waiting to cast their votes as policemen swept away bits of flesh.

Ordinary citizens, with few weapons and no military training to mold them into a fighting force, may find it difficult if not impossible to defeat terrorists by force of arms.

But ordinary citizens can defeat the terrorists by doing as the Iraqis found the courage to do: Defy the terrorists and never surrender -- never.