Archives for May 2005

[NWPT43] Once again the early headlines coming out of the Chelan County Courthouse buoyed the spirits of Rossi supporters, and once again the details of Judge Bridge’s actual rulings have deflated the more realistic among them. Four of the five motions didn’t go the Republicans’ way at all. And the fifth… well… not so much either.

While we’ll have to wait for release of the transcript to parse the full meaning from todays rulings, I wasn’t about to simply rely on the MSM for immediate analysis. I had my own fly on the wall, who shared with me a few of the more interesting details that have yet to be reported in the press.

First let me make absolutely clear that despite the initial headlines (and Rossi spokeswoman Mary Lane’s perfunctory exclamation of victory,) Judge Bridges did not rule that he would accept the GOP’s proposed “proportional deduction” methodology to divvy up the illegal votes based on statistical patterns. He simply did not reject statistical evidence per se. In effect, on what Lane triumphantly called “the big issue of the day,” we are simply left with the status quo.

The Judge decided that he would hold what is called a “Frye Hearing,” a hearing at which he will consider the admissibility of expert scientific testimony… specifically, the application of various proposed methods of statistical analysis. But Judge Bridges was unequivocal in stating that his decision “should not be interpreted as a pretrial ruling adopting the statistical analysis methodology.” Indeed, my insider tells me that at the pre-trial conference in the afternoon, one of the first things the Judge did was set the date of the Frye Hearing. (He had wanted to do it on May 17, but for scheduling purposes it will occur during the trial week.) And the fly reports that there was nothing in Judge Bridges statements that indicated he favored such an analysis.

Thus one can view this as a Republican victory, only in the sense that it didn’t immediately pull the plug on their case entirely. Indeed…

Mark Braden, the high-powered Republican lawyer brought in from Washington, D.C., to help Rossi’s cause, said after the hearing that if Bridges had blocked the proportional analysis strategy, the GOP case would have been lost.

As it is, Braden said, “We’re not out of the woods until the Supreme Court of this state says: ‘New election!’ “

Yeah… sure Mark. Whatever.

If only the rest of the day’s rulings had been so ambiguous, Braden’s enthusiasm would not have come across as so forced. But the remainder of the day went almost entirely the Democrats’ way, not the least of which being the Judge’s rejection of a GOP motion to prevent the D’s from introducing new evidence. Press accounts have reported this ruling as it relates to the 432 alleged illegal felon votes the D’s have found in pro-Rossi precincts (with more to come,) but my fly tells me the ruling came not in a discussion of illegal votes, but rather about whether the D’s could introduce evidence of additional ballots that should be counted, but weren’t.

Remember those 735 “signature not found” ballots that came to our attention after King County Councilman Larry Phillips learned his ballot was among them? 566 of them were counted after a legal tussle in the state Supreme Court, padding Christine Gregoire’s lead by 120 votes. You ever wonder what happened to the other 169 of them? Well most of these were not counted because King County couldn’t find the registration record by the certification deadline. There are also an additional 82 absentee ballots set aside because they “needed research” and 622 “cancelled” provisional ballots… all of which the Judge ruled the D’s may admit into evidence, representing a potential mother lode of Gregoire votes. Or so says the fly.

There were several other rulings that could play a major role in deciding the case. As previously reported, Judge Bridges has ruled that neither party may rely on the counties’ voter-credit records to prove that a vote was cast, calling crediting a “post-election administrative exercise” (told you so, Stefan.) Instead, the parties must find an actual signature in a poll-book or on an absentee or provisional envelope. In addition, Judge Bridges laid out six standards for proving an illegal felon vote: the voter was convicted of a felony, as an adult, was not given a deferred sentence, has not had his voting rights restored, had cast a ballot in the November election, and… actually voted for a gubernatorial candidate.

As David Postman reports in his updated article in the Seattle Times, Judge Bridges acknowledges that this won’t be easy.

“I recognize that it may just simply be impossible to come up with all of these elements I have referred to,” he said. But he told the attorneys, “come up with all you have.”

And it won’t be made any easier by the fact that they have only three weeks to compile their evidence, and only four days each to present it. And if that’s not hard enough, Judge Bridges ruled that he will require a relatively high standard of proof — “clear and convincing” — and not just for the felon ballots, but apparently, for the entire case as a whole. Indeed, my fly pointed out that the Judge “spontaneously” indicated that there seemed to be a theme to Rossi’s arguments, that somehow all they needed to prove was a bunch of errors… and he went out of his way to make it clear that they had to prove — by clear and convincing evidence — that Rossi actually won the election.

So those are the facts as I know them. I’ll post a few observations of my own, after a good night’s sleep.

Wow… it’s amazing what one can learn listening to the BBC.

As reported yesterday in The Sunday Times (still the UK’s paper of record, despite the fact that it is owned by Rupert Murdoch,) a secret memo, conveniently leaked during the final frenzied days before parliamentary elections, has thrown a wrench into the campaign of Prime Minister Tony Blair and his ruling Labour Party. Marked “Secret and Strictly Personal — UK Eyes Only,” the memo discusses a July 23, 2002 meeting between Blair and his top advisors regarding the impending war with Iraq. I say “impending” because it is clear from the contents of the memo that both the US and Britain had already decided on their course of action, at least eight months before the invasion, at a time when President Bush was routinely pooh-poohing talk of war as media speculation.

The big scandal for Blair is that he apparently ignored warnings by his Attorney General and Foreign Office that the war might be illegal. But Americans should be outraged that a President who likes to portray himself as a “straight shooter” was, surprise… blatantly lying.

C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime’s record. There was little discussion in Washington of the aftermath after military action.

(Emphasis added.)

Of course, as we now know, Saddam had no connections to Bin Laden or 9/11, and had no WMDs. As to the lack of discussion about the war’s aftermath, well, I think this fact was made abundantly clear by the war’s aftermath. But the truly criminal revelation confirmation is that the Bush administration was fixing the intelligence to fit the policy. This war wasn’t the result of an intelligence failure… it was made possible by a complete and utter disregard for the intelligence we had.

The other scandal this memo reveals is its nearly total lack of coverage by the US media. One Murdoch mouthpiece, The Times, is eager to plaster it on the front page if it helps bring down a Labour Party prime minister. But here in the US, where the memo could harm a Republican president, another Murdoch mouthpiece, Fox News, apparently has never heard of it. Nor has anybody else.

So much for “fair and balanced.”

A real reporter, David Postman of the Seattle Times, gets the scoop on the real news, although it’s not really much news after all:

In Chelan County Superior Court, Bridges denied a Democratic Party motion to exclude the evidence, saying he did not see anything in law or court precedent that would prohibit the use of expert testimony to show how illegal votes were cast.

But Bridges said he was not yet accepting the statistical analysis as valid for the trial set to begin May 23. He said the Republican evidence is subject to a separate hearing where Democrats can challenge its scientific value.

So the general consensus of HA’s comment threads was borne out. Judge Bridges has not ruled out a statistical analysis, but he has not ruled it in. He will hear the evidence and then decide.

Still waiting to hear on the Republican motion to exclude offsetting votes. That’ll be the doozy.

UPDATE:
Postman has updated his story, and thus so shall I. In a potentially significant ruling, Judge Bridges has said that he will not accept voter-credit records as evidence that someone voted.

In granting a Democratic motion, Bridges said that any party alleging illegal votes will have to produce in court a copy of the voter’s signature in a polling place book or on the envelope of an absentee or provisional ballot.

Bridges said crediting is a “post-election administrative exercise” and “does not bear upon the authenticity of election results.”

This not only puts the burden on the parties to show that their respective felons actually voted, but it also eliminates much of the basis for Rossi’s “total mess” argument, the discrepancy between ballots counted and voters credited.

UPDATE, UPDATE:
Stick a fork in it:

On another issue, Bridges sided with Democrats, saying he would allow them to introduce evidence of election errors that benefited Rossi. Republicans had made a motion to prohibit Democrats from introducing evidence of any of those “off-setting errors.”

I cannot overstate the degree of confidence to which the Democrats’ attorneys believe they have enough offsetting errors, so that Rossi cannot prevail even given the most favorable “proportional deduction” methodology.

Also from Postman’s latest update:

Bridges denied motions from both parties regarding the burden of proof that will be required at trial to show illegal votes had been cast by felons. But he set a standard much more to the liking of Democrats.

Republicans said it was enough to show a voter had been convicted of a felony and that there was no evidence in the court file that the felons’ voting rights had been restored.

But Bridges said Republicans will have to present “clear and convincing” evidence that a felon voted, a higher standard than Republicans had hoped for.

Bridges also set out six standards, similar to what Democrats had proposed, that will have to be shown for the court to consider a vote illegally cast.

“Clear and convincing.” Hmmm. If Judge Bridges requires clear and convincing evidence that a felon voted, doesn’t that also hint that this might be the standard for proving that Rossi won?

More analysis later.

For those who long for the dulcimer sounds of my voice (Stefan describes me as “sweet”), tune in to The Kirby Wilbur Show, 570-KVI, Monday morning at around 6:30 AM. Kirby and I will be discussing tomorrow’s hearing in Chelan County, which has the potential to make or break Dino Rossi’s election contest.

There are two major issues at stake: whether the court will accept the GOP’s “proportional reduction” method of subtracting illegal votes from the candidates, and whether it will consider offsetting illegal votes uncovered by Democrats. As is his wont, Judge Bridges will likely issue a ruling from the bench, but I’m not entirely sure that it will be definitive. For example, he could leave the door open to some sort of a statistical analysis, but not necessarily accept the GOP’s precinct-level methodology.

In any case, this is an issue that will ultimately be decided by the Supremes, so no one should get their undies in a knot by tomorrow’s ruling, one way or the other.

UPDATE:
Well, it was short (and as Stefan would say, “sweet.”)

One point I don’t think I emphasized on the air was that really, the R’s need to prevail on both issues to stay alive in this contest. If Judge Bridges allows the D’s to put offsetting illegal votes into evidence, it’s all over, even with a precinct-level proportional analysis. By fighting the admission of offsetting illegal votes from pro-Rossi precincts, Rossi is essentially admitting that he lost.

UPDATE, UPDATE:
News is coming out of the Chelan County Courthouse, and I am reporting it here. So far, nothing earth shattering… Judge Bridges will consider a statistical analysis, but has not yet ruled it in or out, and votes by non-citizens will be excluded.

All snideness aside, after reading some of the comments on the previous two threads, I thought it might be time to once again summarize and reiterate my position on this election and the subsequent contest.

As I have repeatedly and consistently stated since before the hand recount, this election was a statistical tie… the margin of victory too far within the margin of error to confidently determine the outcome. Ties happen, statistical or otherwise.

A tie does not result in a so-called “revote” (a new election.) When an actual numerical tie occurs for most offices, the winner is determined by lot; in Washington state, when a numerical tie occurs for an executive office, the winner is determined by the Legislature. If neither of these tie-breaking methods strikes you as particularly fair… too bad. The collective wisdom of the world’s oldest democratic republic is that settling things and moving on is more important than absolute certainty. And these are the established rules for settling things and moving on.

Likewise, there are established rules for settling the outcome of a statistical tie: one or two recounts. The very presence of a recount statute is an implicit acknowledgment that vote counts are never entirely accurate, but that a recount — being more carefully conducted — is less inaccurate than the count that preceded it. The very fact that the statute specifies a limited number of recounts, is an implicit acknowledgment that we are willing to accept some degree of uncertainty in the final results. Our statutes clearly consider a hand recount to be the most reliable tally (a position supported by the scientific literature, if not common sense) and thus a hand recount is specified as the final remedy to an extremely close election. So those are the rules for settling a statistical tie: count, machine recount, hand recount.

Christine Gregoire won the hand recount. Thus, by the rules both candidates agreed to prior to the election, Christine Gregoire won.

Of course, there is also a contest statute, and Dino Rossi has every right to utilize it to press his case. But we must be clear that the purpose of this statute is not to settle close elections, and not to provide certainty… for all extremely close elections are uncertain. Rather, the contest statute is intended to provide a remedy when it appears that illegal votes and other irregularities actually changed the outcome. It is not enough to show that the outcome is uncertain; we already know that, and our election statutes have no qualms with this. To set aside an election, it must appear that due to illegal votes and other irregularities the wrong person was declared the winner. That is Rossi’s burden in this contest.

And it is, admittedly, a very high burden of proof.

I have read comments here and elsewhere that express disbelief that a court could possibly permit the election results to stand when the number of disputed ballots is apparently so much greater than the margin of victory. I have been told that it would “offend common sense,” that it would be “unfair” and “unjust.” But I hate to break it to you: nobody ever said justice was fair, or vice versa.

TV crime dramas are chock full of story lines where some miscreant is set free on a technicality — often the inadmissibility of illegally gathered evidence. While it does indeed offend our sensibilities to see a clearly guilty criminal avoid justice, the entire system relies on the rule of law, and without strict adherence to it, the whole justice system could collapse. No judge has the power to determine when the rules should or should not apply.

Similarly, an individual election contest is not about fairness… it’s about following the rules set out in the contest statute. Mistakes alone — even the failure by officials to follow the letter of the other election statutes — are not enough to set aside an election. To prevail, Rossi must prove that he was likely the real winner, or that there was the intent to fraudulently swing the results towards Gregoire, or perhaps, that the margin of error was so far outside the accepted norms, that there is no way we can reasonably accept this as a free and fair election (the “total mess” strategy.) To date, I have seen no evidence to strongly support any of these assertions.

This election was a statistical tie; fortunately for those on my side of the aisle the coin toss came up Gregroire, but it could easily have flipped the other way around. Did the hand recount provide a significantly greater degree of certainty than determining the winner by lot? In this election, no. But then, as I have stated again and again and again, our election statutes prefer finality over certainty, and for very pragmatic reasons… because otherwise, every close election would end up being settled by the courts, a policy that would be costly, disruptive and untenable.

While many die-hard Rossi supporters can’t imagine the courts ruling against him, I haven’t talked to single attorney who has studied the statute, who believes the courts would be willing to set such a dangerous precedent.