[NWPT48]Anybody who has ever watched one of those TV lawyer shows knows the plot device where one side’s attorney gets up there and makes a rather convincing statement, only to have the other side’s attorney get up there and knock the wind out of his sails. That’s kind of what happened this morning in Wenatchee. Whereas the R’s Dale Foreman was struck an emotional chord with his description of a “sinister… case of election fraud”, the D’s Kevin Hamilton methodically deconstructed Rossi’s case, contending that the R’s have no plans to present the kind of clear and convincing evidence necessary to prevail.
As Hamilton points out, the R’s intend to spin circumstantial evidence of errors and irregularities into a tale of fraud and corruption, but in fact plan to present no direct evidence to support their case… no evidence of wrong doing on the part of candidates or their surrogates, no direct evidence of how disputed ballots were voted, no count of absentee envelopes, no poll book pages, no testimony from poll place workers or partisan observers… nothing. As Hamilton said “… serious claims require serious proof, and that is exactly the sort of proof that will not be included.”
I was particularly please to hear Hamilton take up a question I posed in my observations on the Foreman’s statement. If the R’s suspect there were really more absentee ballots counted than absentee envelopes received, why not just go back and recount the envelopes? Instead, the R’s plan to make their claim of ballot box stuffing based on innuendo, not actual evidence.
Of course, Hamilton could afford to be methodical and dispassionate because the law is on the D’s side, and the R’s thus have an extremely high burden to meet. I thought his legal arguments on the R’s efforts to have disputed provisional ballots and voter credit discrepancies included as evidence of illegal votes was particularly devastating to the Rossi’s case. Rather than rely on rhetoric, he just cited statute:
RCW 29A.68.100
Illegal votes — List required for testimony.No testimony may be received as to any illegal votes unless the party contesting the election delivers to the opposite party, at least three days before trial, a written list of the number of illegal votes and by whom given, that the contesting party intends to prove at the trial. No testimony may be received as to any illegal votes, except as to such as are specified in the list.
Apart from the felon votes, the R’s simply have not met this standard. Hamilton argues that the court has no discretion, and thus can’t consider the provisionals and discrepancies as illegal votes, regardless of any other issue.
Hamilton then turned towards the felon votes, and the R’s proposed proportional reduction methodology. Again, he hammered on the fact that the R’s refuse to submit direct evidence of how these felons might have voted. As an example he mentioned affidavits from five felon voters from Gregoire precincts, who the R’s methodology would have predicted voting overwhelmingly for Gregoire. In fact, four voted for Rossi, and one for Bennett. The R’s claim you cannot trust the word of a felon, but Hamilton went on to say that they would back up the affidavit of one “WS” with color copies of his GOP membership card, a thank you letter from President Bush, and evidence that he contributed twice to the Rossi campaign.
It’s not that these five felons are significant in themselves, but it shows that once again, the R’s could have obtained direct evidence, but chose not to.
The Dems announced that they would make a motion to have the case dismissed at the end of the week, after the Republicans have presented their case. If their motion is rejected, then they plan on presenting evidence of offsetting errors and illegal votes…. over 700 votes by felons found in pro-Rossi precincts ignored by the R’s, and over 1800 mishandled provisional ballots from 14 counties. The D’s also plan to introduce evidence of legal ballots that weren’t counted due to errors by King County Elections officials… an additional 49 “Phillips” ballots, 204 provisionals that were set aside for more research, and a number of registered voters whose ballots should have been forwarded to other counties, but weren’t.
Too sum up the D’s statement, the R’s must prove illegal votes, errors and irregularities changed the outcome of the election by clear and convincing evidence, the highest standard in any civil case. And the R’s simply can’t meet this standard.
After Hamilton finished, Jeffery Egan made a statement on behalf of the Secretary of State, and he reiterated the high standard of proof:
Until proven otherwise, the last count was the correct count. Rebutting the evidence requires clear and convincing evidence that illegal votes, fraud or misconduct changed the results.
…
Misconduct is not enough. Effecting the accuracy is not enough. Changing the outcome is.
Enough said.
Finally, an attorney spoke on behalf of the Klickitat County Auditor, but really for all the state auditors.
Auditors… do the best they can to assure impartial and fair elections. Some made mistakes and failed to notice mistakes by others; human beings will do that. This trial is important because it will determine the outline of when judges get involved in the future. Will it be all close elections?
He suggested that such an outcome would be unfortunate as it would politicize the process and serve to taint and diminish the status of the courts. He urged the Court to avoid increasingly entangling the courts in future elections, but holding to a very high standard of evidence. He then cited some important statute himself:
RCW 29A.68.070
Misconduct of board — Irregularity material to result.No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes.
In what could be a very important distinction, he focused on the word “procure” arguing that the Legislature specifically used the word “procure” and not “cause”, the difference being that it implies intent.
So after listening to the opening arguments, my opinion has not changed. The Republicans will have a much harder time arguing their case in a court of law than they have in the court of public opinion.
UPDATE:
David Postman of The Seattle Times has been providing excellent coverage all day. You can read his latest update here.
Well clearly the RCW has a radical left-wing bias!
Y A W N!!
Goldy…you are getting so swayed to and fro over rhetoric.
Opening statements are simply not that important in a case like this. Hard evidence and CLOSING statements are much more important. At this pace, you will be completely exhausted by noon tomorrow. Pace yourself for God’s sake. Perhaps there is no Goldy’s Sweetie-Pie because you are so passionate for about 15 seconds and then your eyes roll into the back of your head! That isn’t romance Goldy!
Judge Bridges WILL do something with the ILLEGITIMATE felon votes. Will it be enough to overcome the 129 vote difference.. Who knows…maybe not.
But there are still a number of other issues that the DEMS just ASSUME the Judge will reject. Bad mistake.
This has been a classic case of Rope-a-Dope. The Dems & the press have been fixated on the felons…pouring incredible resources to dispell the R’s case. Nice how the Seattle TImes helped the Dems. No one can deny that. But it doesn’t matter.
Watch for the BIG BINDER….err I mean BIG SURPRISE!
DEM DOPES HAVE BEEN ROPED!!!
Well now they’re reading Reed’s deposition into the record. What a yawner of a procedure! Ka Ching goes the billable hours!
Bridges’ remarks on fraud were puzzling. On one hand he says fraud is not at issue but that doesn’t mean the R’s evidence is inadmissable? Oh well, Judge maybe your name should be Hedges instead of Bridges.
The big binder reconciliation documents were hinted at in the R’s opening I think but it’s inconceivable to me that the Dem lawyers didn’t go over every inch of that binder.
The GOP can ALLEGE anything. Proving it will be another story. We’re past the point where they can make a baseless claim on one of the right wing – hate radio stations and get away with it. Now they need actual proof.
What’s really telling about this case is that the Rs moved it to home turf, thinking that by having a judge in the most republican County in Washington hear it, they’d have a better chance. But Bridges isn’t playing along so far. Maybe he will cave in later, who knows? But the mere fact that the GOP went this far as to make the case in Chelan, well it just shows how desperate they really are.
Cynical — Judge B just threw out “fraud”.
And if there’s a BIG BINDER with a BIG SURPRISE in it, Judge B will presumably sanction the R’s severely. This ain’t Perry Mason, y’know.
What else ya got?
D’oh! Missed opportunity for a title of “The Dem-pire Strikes Back”….
Hilarious…read SP’s coverage and you think the Dems’ are on the ropes and Foreman has scored irreperaple points.
Man, when the kool-aid is drunk, it really does affect folks!
PS….as Truman said, facts are stubborn things (Foreman must be wondering if he can save teh rest of the millions for Rossi’s future losses instead of spending them on this past loss).
John @3,
YOu said: ” On one hand he says fraud is not at issue but that doesn’t mean the R’s evidence is inadmissable?”
What he meant was that at this time he doesn’t think the evidence that the GOP is putting forth regarding the King County screwups witht the absentee ballot report legally constitutes fraud, and that because of this fraud is not a legal issue in the case. This doesn’t me the evidence of the absentee screw up won’t be admissible to show official error or misconduct under RCW 29A.68.020 and .070.
It just isn’t “FRAUD”. This was his way of squelching the GOP speeches about “election fraud” aimed at the newspaper headlines.
The R’s can introduce evidence. They can use any of this evidence to support claims that are part of the case. They CAN’T use the same evidence to construct arguments in support of matters that are NOT part of the case. (Fraud, for instance.)
The fraud-talk is strictly atmospherics. Will it spin the Judge’s subjective response on other matters of judgment? Not likely. It’s only there for gullible members of the public. (Cynical, for instance.)
As an example he mentioned affidavits from five felon voters from Gregoire precincts, who the R’s methodology would have predicted voting overwhelmingly for Gregoire. In fact, four voted for Rossi, and one for Bennett. The R’s claim you cannot trust the word of a felon, but Hamilton went on to say that they would back up the affidavit of one “WS” with color copies of his GOP membership card, a thank you letter from President Bush, and evidence that he contributed twice to the Rossi campaign.
Hahaha! Awesome. GOP, meet reality. It’s much different than you’ve been imagining it.
Goldy, the SoS’s attorney is Jeffrey EVEN, not Egan…right?
himherwhateverdudelookslikealady—
You honestly believe that the Dems digging up 5 felons who say they voted for Rossi and Bennett is that big of a deal?????
You are really hard up for excitement dude.
How many felons do you think the DEMS interviewed to come up with those 5??? That would be a good question to ask, don’t you think?? Do you think it was the first 5 they talked too???
Grandstanding….but meaningless when you look at the scope of the ILLEGAL votes.
funny typo in AP’s morning story, here:
http://news.yahoo.com/s/ap/election_challenge
“The judge decided to move the trial from his small courtroom in eastern Washington appeal country”
:) if it isn’t appeal country now, as soon as Bridges releases his decision it will be!
Looks like the R’s are getting very amateurish lawyering for their 2 million dollars. Oh well, you get what you pay for. Well no … sometimes you pay a lot for … nothing.
If this wasn’t a politically charged case in the public arena, the R’s case wouldn’t survive a summary judgment motion.
Wonder why the right wing blogs don’t highlight David Postman’s coverage? Could he be another pro-Gregoire agent for the pro-lib Times?
Cynical @ 2, you’re 50 years behind the times. Trial-by-ambush went out in the fifties. We have this think called “discovery” now. There’s no surprises in litigation anymore. If you didn’t allege a claim in your pleadings or disclose evidence in your possession to your opponent, it doesn’t get in. Perry Mason is strictly TV, not real life. Sorry, but that’s how it is.
You honestly believe that the Dems digging up 5 felons who say they voted for Rossi and Bennett is that big of a deal?????
You are really hard up for excitement dude.
If that was the case, then why are Republicans countering with the argument that the people were lying, rather than showing that the “others” voted for Gregoire? If there are “others” who are alleged to have voted illegally, and are known to have voted for Gregoire, then why aren’t the Republicans airing that out right now? Wouldn’t that be a smart way to begin to demonstrate some kind of statistical basis for making a claim as outrageous as believing that ex-felons would be likely to vote for the state’s Attorney General?
thatPrick@16–
Who says the claim wasn’t made and the evidence hasn’t been shared?????
Re-read the claims thatPrick.
And then realize there is so much evidence already introduced….kind of hard to even articulate what 5% of it is….know what I mean??
I’m not talking about an AMBUSH.
However surprises can occur right under ones nose.
Know what I mean?
I understand the rules thatPrick.
Are you saying it’s up to the R’s to tie everything up in a nice neat package for the Dems BEFORE the trial????
C’mon….that’s what the trial is for, isn’t it?
Who says the claim wasn’t made and the evidence hasn’t been shared?????
Democratic attorney Kevin Hamilton told Bridges it should not be allowed because the claim was not properly included in the Republicans’ earlier filings.
Let’s Play a friendly game we all know:
——|
O
/ \
|
FRAU
—–
I know, I know: FRAUGHT, as in The Republican case is fraught with difficulties. ;-)
Nah, I think it stands for
Futile
Republican
Arguments
Unleashed
Take it from the horses’s mouth and the ass too. By all rational indication, Rossi is not going to prevail in the lower court or any after court action no matter how many times he calls fraud and stuffing.
Serious question. OK, if Judge rejects these claims as not being part of the law on 3rd recount, aside from that, what venue takes care of fraud? Suppose we didn’t have recounts, but we had reports, testimony of cooperation, even conspiracy? Is the electorate without any hope? Don’t we have laws to take care of election theft? (honestly a serious quston)
As I see it from the neophite bleachers, Rossi had to attempt to enter fraud charges at the loer court level hoping it could be squeaked in so as could be used at a higher level court which he knows they are headed. I do not think Judge Bridges will allow fraud and therefore fraud can not and will not be part of the move on process. The conspiracy claim must show intent. Bridges has already mulled the stew; got his stage set. Human error figures in and by now he has an idea where it all is headed. We are in the wait stage.