[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:
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.
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:
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.
David Postman of The Seattle Times has been providing excellent coverage all day. You can read his latest update here.