Foolish Foulkes: Rossi’s legal arguments have no precedent

It’s a good thing the courts don’t rely on legal analysis from bloggers like me or Timothy Goddard (or turn to Stefan Snarkansky for evidentiary findings.) We try to do our best to tease out some truth (well… maybe not Stefan), but in the end, we really don’t know what the fuck we’re talking about.

That point was driven home when I finally got the expert legal analysis I was seeking. A rather well-respected attorney familiar with the case (I’ll call him Lawyer X), was kind enough to answer a few of my questions, and set me straight on some of the finer points of the law. It’s not that my own analysis was so dramatically off-track, it’s just that as a layman, I lacked the training and breadth of knowledge necessary to discern some of the subtleties presented by case law and the relevant statutes.

I know the court might not construe the statutes quite as narrowly as the Dems will argue. But by placing this contest in the proper context (constitution, statute and case law), it quickly becomes evident that Rossi supporters have been unreasonably buoyed by amateur legal analysis.

The first thing to note is that faux lawyers on both sides of the political divide have placed way too much emphasis on the precedent set in Foulkes v. Hays. As Lawyer X points out:

At the time of Foulkes, RCW 29.04.030 (now 29A.68.011) was viewed as a separate branch of statutes–alternative causes of action. Shortly after the Foulkes decision, 29.04.030 was amended to add a new section–section 6–referring to certificates of election and 29.65.010 (now 29A.68.020) was amended to require any election contest to be brought under the amended 29.04.030–thus merging the two into one statutory frame. Subsequent decisions have articulated that any action seeking to set aside an election or certificate of election is an election contest and there are no longer “alternative” authorities. The contest statute … makes it clear that an election can only be set aside if a very particular set of facts are demonstrated. Basically, the law does not allow you to wait till after the election in order to point out flaws that could have been readily and easily dealt with before election day, and the person who was certified the winner is the winner until someone proves to the contrary–not raises questions, but actually proves the result should have been different.

This helps explain the apparent contradiction between the 1975 Foulkes decision and 1995’s Becker v. Pierce County over the remedies available under 29.04.030… the statutory framework had changed in the intervening years. I have always felt uncomfortable comparing the circumstances in Foulkes to the irregularities alleged by Rossi, as they really don’t appear analogous. But Lawyer X has serious doubts as to whether the evidentiary findings in Foulkes would even result in setting aside an election under current statute.

In the Foulkes case the Court concluded that the contestants’ election contest case was properly dismissed. It used an alternative theory, that was then available in connection with non-state wide executive offices, based on fraud or wrongdoing that had no connection to the election contest statutes (including what is now RCW 29A.68.070) to set aside the election. As a result of the 1977 amendments, however, the statute relied upon in Foulke’s is now expressly part of the contest statutes and subject to 29A.68.070. As you noted, the Court subsequently (in Becker) stated that election set-aside was not available under the statute that had been used by Foulkes.

That’s right… according to Lawyer X, Foulkes was not technically decided on the contest statute at all. The court set aside the election based on an unconnected statute, which has since been folded into the contest statute, and is now subject to its stricter standards. Under our existing contest statute there is only one path to setting aside an election: Rossi must prove that misconduct or illegal votes actually changed the outcome, which in turn requires proving for whom the disputed ballots were actually cast.

Ahhh… but what about the “plenary powers” that Rossi’s attorneys appeal to? Even I have argued that the GOP intends to convince the court to reach beyond the statute as it apparently did in Foulkes. Indeed, the Foulkes decision is pretty unambiguous about the court’s power to do so:

This authority, whether based on a specific statute or the general equity jurisdiction, carries with it “all the means to carry it into effect.” RCW 2.28.150. Where appropriate, these necessary and proper powers would include the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect.

Well, this is where we have all completely missed the boat… me, Goddard, the other bloggers, and the mainstream media. While conservative talk radio attacks the Democrats as hypocrites for now arguing that Art. III, Sec. 4 of the state Constitution gives the Legislature jurisdiction over a contested gubernatorial election, everybody has missed a very clever — and possibly decisive — piece of legal strategy. Remember, in Foulkes, the court also wrote:

Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, sec 6, unless it were “by law vested exclusively in some other court.”

And as Lawyer X explains:

The GOP and Secretary of State argue that the Legislature has delegated its decision making power to the courts by means of RCW 29A.68.020 et al. If that argument is sustained, the court may have jurisdiction to decide this matter, but only within the confines the legislature has set up by its contest statute–not under any general equity jurisdiction.

“Not under any general equity jurisdiction.”

See, that’s the real reason Democratic attorneys are playing the Art. III, Sec 4 card. Unlike other elections, the Constitution clearly grants to the Legislature jurisdiction over contested elections for executive offices, and any such powers not specifically granted to the courts by statute, remain with the Legislature. If the Democrats win this one point, then the court must rule entirely within the narrow confines of existing statute… and that would be the final nail in Rossi’s legal coffin.

How strong is the Democrats constitutional argument? Well, there’s only been one other contest of a gubernatorial election, in 1941, and that was made to the Legislature. The GOP argues that Becker provides precedent that the courts have jurisdiction over executive office election contests, but this issue was not actually addressed in the decision.

In any case, Foulkes provides us no guidance. In fact, it may not provide us any precedent whatsoever. And it certainly doesn’t lessen Rossi’s burden of proof below that clearly defined in the contest statute.

Don’t take my word on it. Listen to Lawyer X.

Comments

  1. 1

    Richard Pope spews:

    Goldy, this legal analysis stuff gets a little bit dry after a while, even for lawyers. Give this thread a few more responses, and people will start talking about facts and allegations, instead of legal points and arguments.

    We could talk about what is going on in state government. Gregoire’s official website boasts of no accomplishments or appointments for Monday, January 31, 2005.

    However, Gregoire does boast that some group called “Pew Charitable Trusts” has rated Washington as the third best managed state government in the United States, right behind Republican dominated Utah and Virginia (who tied for first place):

    http://www.governor.wa.gov/new.....newsType=1

    Supposedly, according to Gregoire’s website, this “report grades the states in four categories – money, people, infrastructure and information – on a scale of A through D”. And believe it or not, Washington ranks third best in the entire country in the composite of these four categories!

    What a load of bullshit! Not only is Washington state government seriously short of money due to the inadequate revenue funding scheme, but this same taxation scheme is by far the most regressive in the United States in making poor people pay a much higher percentage of their income in state and local taxes than do rich people.

    On infrastructure, Washington has some very serious unmet needs for these same reasons. But this bogus study would have us believe the Virginia and Utah have some of the best public infrastructures in the entire country, and Washington is real close behind them!

    Maybe our glaring deficiencies in money and infrastructure are somehow made up for by the incredibly wonderful people who are running our state government and the incredibly optimistic state of affairs that they are feeding to the public as information.

    Since Washington now has the third best state government in America, you should stop worrying about whether or not there is a revote in the Governor’s race. Since Gregoire and Locke have gotten Washington ahead of 47 other states, and almost to the pinnacle occupied by Virginia and Utah, she should win another election by a landslide.

  2. 2

    Erik spews:

    Goldy, this legal analysis stuff gets a little bit dry after a while, even for lawyers.

    Yes Goldy. What are you thinking? It is much to thoughtful to respond in all caps or to flame.

    The interesting trivia I am being more convinced of is the limitation on when a new election could be held even if Rossi somehow came up with sufficient evidence in the election contest.

    The Washington Constitution appears to forbid a special election but requires that the governor’s election, which has a special provision, only occur when the legislature is elected in 2006.

    Thus, if Gregoire is somehow removed, it looks like governor Brad Owen for a year and a half. Once in as governor for 18 months, he will want to run again in the election most likely. That scenario is apparently the best that Rossi can hope for.

  3. 3

    David spews:

    Richard Pope is incredulous that the Pew Charitable Trusts have “rated Washington as the third best managed state government in the United States.”

    You can see the results at http://results.gpponline.org/ (we got a B+).

    Richard, read a little more closely and you’ll see that it’s not grading Washington’s infrastructure, revenue system, people, etc.; it’s grading the way that Washington State’s government manages what it’s got. Locke wasn’t a flashy Governor, but he did do a lot behind the scenes to improve the way state government operates.

  4. 4

    Bob spews:

    Re: “While conservative talk radio attacks the Democrats as hypocrites for now arguing that Art. III, Sec. 4 of the state Constitution gives the Legislature jurisdiction over a contested gubernatorial election, everybody has missed a very clever – and possibly decisive – piece of legal strategy”

    While dry & dull, still appreciated

    I find this an interesting argument, there is just one problem with it. Is there a legitimate alternate forum to resolve the dispute if a large number of members of the legislature are on record as having said that the legislature does not have juridiction but that under their (legislators’) opinion that the state consitution puts the matter properly in the courts?

    If the legal analysis is correct, then the judge is going to have some difficult decisions to make regarding what the next step should be…..of course he will have that anyway.

    My personal hope is that the judge(s) is (are) going to get mad and lecture County Auditors, the Secretary of State, and the Legislature for their lack of knowledge of state law and for putting the courts in the middle of a mess that could have been avoided. I feel that is about the only way this State’s officials are going to start “religiously” following state election laws. I don’t see most politicians as thinking election laws need to be closely followed.

  5. 5

    jcricket spews:

    My personal hope is that the judge(s) is (are) going to get mad and lecture County Auditors, the Secretary of State, and the Legislature for their lack of knowledge of state law and for putting the courts in the middle of a mess that could have been avoided.

    To be fair to the county auditors and the SOS – they didn’t bring this lawsuit and some are actively complaining about the burden this suit is putting on them – especially considering most of the counties haven’t been accused of anything. Republicans, who brought the suit, brush the complaints aside, but they’re reaching pretty far in their attempt to get this election overturned.

    To borrow from Salon, Republicans have been trying to bury us in a “chin-high drift of factoids” hoping we’ll get confused. As Goldy points out in this blog entry, it can all end up being totally irrelevant under the law. Actually, Goldy’s been pointing that out for a while (regarding SP’s “analysis”).

  6. 6

    Goldy spews:

    Bob, I doubt we’re going to get much lecturing from the SC. I think the worst case scenario might be the most likely… the court rules narrowly on the statute, but leaves open the possibility of an additional contest to the Legislature. The R’s then take their “the election is a total mess” circus to the Legislature, which really means taking this to the public.

    At some point though, I believe there must be some political price to pay for not accepting the results of this election.

  7. 7

    Mr. Cynical spews:

    Goldy–
    The “political price” will be paid by:
    1) Ms. Gregoire for saying “this election is a MODEL for the rest of the nation and the world at large.”
    2) Dean Logan & Huennekens for saying it is IMPOSSIBLE to reconcile votes and voters when it was done in Jefferson County with 2 election staff members. Also for minimizing the importance of reconciling. And for complaining about a lack of resources to follow the law….and apparently failing to even ask for the resources. Ron Sims and Larry Phillips will burn Logan & Huennekens BEFORE they take the heat themselves.

    Goldy–if you really think Rossi will pay a political price for contesting this election, why don’t you SUPPORT a new election. After all, if he truly PAYS A PRICE, he will lose, won’t he?

    Friday will be very interesting. I would be surprised if the Judge didn’t at least think on the evidence over the weekend BEFORE issuing his ruling but…who knows. From reputation, this Judge will meticulously craft his decision so it is at bulletproof as possible….thus putting the Supreme Court in a very, very difficult position to overturn it. We’ll see.

    In the meantime, folks like you Goldy, Torridjoe, Erik, jcricket and others should have been working overtime developing your own hard evidence to bolster your case. Instead, you wasted your time picking nits and pretending to be lawyers. After Friday, it’s too late Dudes. The Court will likely go with the evidence it has. When you go to the Supreme Court, do you think they will allow new evidence then????

  8. 8

    Goldy spews:

    Cynical… blah, blah, blah, blah, blah.

    The problem for Rossi is that he has no evidence that meets the standards required be statute. So his lawyers can slop on as many allegations as they want of irregularities, but unless they can prove they changed the outcome of the election, it means absolutely nothing.

    As to Friday, I really don’t expect anything meaningful to come out of it. I don’t expect the judge to toss out the contest.

  9. 9

    Dave P spews:

    “but in the end, we really don’t know what the fuck we’re talking about.”

    Well, You got ONE thing right…

    “The problem for Rossi is that he has no evidence that meets the standards required be statute.”

    which is in direct conflict with the following:

    “but unless they can prove they changed the outcome of the election,”

    so he has evidence, it’s just how it’s applied. Read the statutes again, they don’t say they have to prove they overturn the election, they say they have to get enough illegal votes that exceeds the margin of victory.

    That’s been done.

    That’s why there is a judge in this case and you are just a blogger.

  10. 10

    Mr. Cynical spews:

    Actually Goldy, the blah, blah, blah part may be your shoe that fits. Show me one single bit of meaningful “evidence” you have developed?? Nothing? It is interesting to note that the lawyers involved in this case have received “hard evidence” in this case from a large number of individuals with database and accounting technical skills. Anyone who believes that this entire case was put together by lawyers is incredibly naive.

    The Dems have failed to disclose one single example of illegitimate voting in this election. SIMPLY AMAZING! I have seen them imply that the same thing that happened in KingCO happened in other Republican County’s but haven’t seen the “goods” yet. Perhaps they are saing themselves for Friday.
    However I do know that last FRIDAY, the Dems deluged the COunty Auditors with a HUGE Public Records Request, much of which revolved with wanting whatever Auditors gave to the Republican’s!!!! Does that give you confidence Goldy that your Legal Counsel is way ahead of the curve??? And as you know, the County Auditors have 5 days to respond. That doesn’t give you Legal Counsel much time to sort thru all this stuff and develop a case, does it Goldy?? Perhaps they are like you…confident that the R’s have not met the legal standard. Confident…or over-confident????

    The R’s have already and will continue to present evidence from a number of different legal angles. The Judge will look at each issue raised and then render an opinion based on the entirety of the contest. Will the R’s meet the standard??? If not, it’s not due to a lack of effort in doing the appropriate AUTOPSY on this election. Plus Goldy, you must admit, many deficiencies have been uncovered that ought to be corrected before any future election is conducted.

    Governor Brad Owen! I can live with that!

  11. 11

    Mr. Cynical spews:

    Goldy–
    It’s kind of like you and your comrades as scratchin’ your ass in the dark. You know what you are doin’, BUT NOBODY ELSE DOES!!!!

    I mean to waste months are playing amateur Perry Mason rather than amateur Sherlock Holmes was a complete waste of time. You brought absolutely NOTHING to the legal case…you merely attempted to interpret the law ad infinitum! Now, I’m not saying there isn’t some pleasure in trying to predict what the Judge is going to rule….it’s just that it isn’t productive. Doing an AUTOPSY on this election and bringing forth specific irregularities and failures of election officials however, is very productive. It can lead to important changes, priorities and accountability….and perhaps throwing out an Election!@!!

    It’s like I’ve told kids for years when I coached several sports teams….I want them to be proud of their effort. That’s what they ought to focus on…effort and execution. The result usually takes care of itself..but it’s all you can really control..YOUR EFFORT!

    Leftists are kind of a funny crowd. They seem to very often mistake motion for action. Planning until all the money is gone so they can’t execute their plan…or intellectualizing issues rather than rolling up their sleeves. Wanting to CONTROL what others do, rather than focus on their own actions and want to be held accountable. Just my experience the past 50+ years…personal observation!

  12. 12

    Larry Osterman spews:

    Mr. Cynical@10: Umm.. The Democrats don’t have to prove illegal votes – they WON the election. The Republicans need to prove that there were enough illegal votes to meet the criteria specified in the overturn statute.

    Also: Mr. Cynical@7: How many votes were cast in Jefferson County? How many were cast in King County? There’s probably a difference in several orders of magnitude between the two – that’s why Dean Logan says that he can’t reconcile the votes.

  13. 13

    Larry Osterman spews:

    Mr Cynical @ 11: Umm. You do know that Sherlock Holmes was an amateur detective, right?

    Perry Mason was actually paid for his expertise, but Holmes wasn’t.

  14. 14

    Goldy spews:

    Dave P @ 9

    Read the statutes again, they don’t say they have to prove they overturn the election, they say they have to get enough illegal votes that exceeds the margin of victory.

    Please point out the statute that says that. (The WA statute… NC doesn’t count.)

  15. 15

    Nelson spews:

    Congratulations, Goldy. You succeeded in putting Mr. Cynical in total panic mode. What gibberish he’s spouting due to the fact that he now knows he’s supporting a totally lost cause and that his candidate has now become the biggest sore loser in recent memory. Lots of candidates have lost very, very close races, either in original counts or in recounts. They cried for a day or two and got on with their lives. Rossi on the other hand — along with his silly supporters like Mr. Cynical — just keeps on crying and crying and crying.

    American voters hate two things more than anything else — crybabies and sore losers. Dino Rossi has hit the jackpot with both traits.

  16. 16

    Mr. Cynical spews:

    Larry @ 13-
    I hate to break this to you but Perry Mason was a FICTIONAL CHARACTER!! He wasn’t really paid for his expertise.
    That’s ok Larry…Lefty’s often confuse fiction and reality!
    It’s just the way it is…genetic or something.

    Larry@12-
    I agree that Gregoire won the third count….and on the surface wouldn’t appear to have to prove illegal votes. But some of the prior Lefty posters have indicated there were plenty of illegal votes statewide that the NET result is close to a wash. REALLY?? Ummmm, don’t you have to prove that? That would require hard evidence, wouldn’t it???? How would a judge know whether that is true or false?? Is he supposed to ASSUME it is? Where is the evidence?
    This is where the catch-22 is for the Dems. If they provide a lot of evidence re: irregularities, they may actually be burying themselves. It’s that unknown on how the Judge will rule re: evidence APPEARS to have changed the result.
    It’s risky for the Dems either way…just like who in their mind would have expected Rossi to contest the election when he was ahead…and before the hand recount is final.

    Let’s be honest here…the Dems would be doing the same thing if the situation were reversed. The difference is the Republicans have amuch easier target in KingCo due to well-documented prior irregularities that were supposed to be fixed by now but were not.

    Nelson @ 15–
    I’m in a total “panic mode”????
    Gibberish I’m spouting??
    What hard evidence have you brought to the table Nelson? NONE!
    Your sole purpose is to attack, intellectualize and hope.
    How is that productive to the Court case???

    Jefferson Co. had 18,772 ballots and 2 Election staff members. They had the same issues as King Co. and every other County.
    Logan said a reconciliaton is IMPOSSIBLE?
    WHY???
    As a CPA, I find it amazing anyone could believe that it is IMPOSSIBLE for a County to provide a list of actual Voters names that matches the total # of ballots counted. Think about what you are saying! IMPOSSIBLE?? WHY??

  17. 17

    spews:

    Mr. Cyn @ Several,

    What was the name of that bird? Ah, yes. The “darkinere.” Methink you just flew right up your backside.

    Sorta reminds me of folding space, Schwartzchild geometry, and a thing called a “while hole.” In layman’s terms, a “white hole” is place where light cannot enter…

  18. 18

    Mr. Cynical spews:

    Rick–
    And a “black hole” is incredibly dense as you well know!!
    And stealing my jokes is actually the highest form of flattery Rick. Hell, I’m one funny SOB!!!

    You have an interesting last name…Schaut.
    What is the origin?
    I think I heard it used in a sentence once–
    “The Lefty was so scared he Schaut his pants”!

  19. 19

    jpgee spews:

    Cynical, with the way of looking at things that you have, I feel pretty damned sorry for any kids that you have coached during your ‘sour’ lifetime.

  20. 20

    spews:

    Goldy @ 8

    Whatever legal rulings are handed down Friday from the trial court, I expect that the case will be stayed so that whichever side is more adversely affected by the rulings may appeal those issues to the Supreme Court. From there, the Supreme Court will clarify the issues, and remand the case back to the trial court for proceedings within the scope of their decision.

    Cyn @ whatever

    Actually, my middle name is far more interesting than my last name. I used to place $5 gentleman’s bets with people over whom had the strangest middle name. Of those bets, I lost only one–to a gentleman who had the same middle name.

    But, hey, at least I have a name.

    And you really should go learn a few things about Schwartzchild geometry. It’s fascinating stuff.

  21. 22

    jcricket spews:

    Rick – Ever hear that saying, “on the internet, no one knows you’re a dog”? I think it applies pretty well to Cynical. He’s either a BIAW-paid shill who lost his contract (and thus his reason for posting reasonably sane rants) or an unemployed loser/loner sitting alone in his parent’s basement frequenting chat rooms and message boards.

    Best not to feed the trolls…

  22. 23

    Mr. Cynical spews:

    jcricket–
    You still haven’t answered the question..
    Did Sharkansky ban you because you are a stalker or a pervert?
    Those are the only 2 reasons he bans someone!

  23. 25

    jcricket spews:

    Please, Cynical – there’s lots of evidence from people who post on this site that the minute they criticized Stefan too “pointedly’ they found all their new posts instantly deleted/never posted. I wouldn’t take Stefan’s word about any of his motives for banning someone. uSP is far more of an echo chamber than HA.

    And Goldy’s never banned anyone, no matter how inane (see: Cynical)

  24. 26

    spews:

    Call off the court contest!
    “Lawyer X” has spoken. That’s right, David Goldstein has found the one man (or woman) who can solve this whole mess for us. What mighty superpower does this “Lawyer X” have that enables such a glorious feat of strength? Get this–he’s a lawyer…

  25. 27

    Mr. Cynical spews:

    Timothy–
    It’s ok–
    Goldy’s “Lawyer” is actually one of those guys that got his Law Degree @ Georgiatown…off the back of a matchbox. $9.95 plus shipping & handling for a framed certificate!!! COOLL!!
    Apparently this “lawyer” wears a plaid suit, bad toupee (since he was chastised for the comb-over of his remaining 3 hairs) and over course, the Gold Nugget necklace and wristwatch.

    jcricket–
    You never posted at SoundPolitics??? Are you sure?
    And as usual you make comments about “lots of evidence” from “people”(WHOM?) that comments were deleted or not posted.
    Yet you never posted yourself??
    Why don’t you try posting and see if Stefan deletes you?
    That would be a fair test since you have hurled another nebulous allegation based on heresay?
    Try it Dude.

  26. 28

    smart guy spews:

    You are right, you don’t know anything.

    Any person who resorts to obscenities to make a point has no point.

    Your comments are pointless and you are extremely ignorant.

  27. 29

    spews:

    Cyn @ 21, sorry, but you just lost the bet. You may send $5 to the tsunami relief fund of your choice. And, no, I won’t ask you for proof of the donation. You’re on your own honor. Sleep well.

    jcricket @ 22, I’ve heard a number of expressions suitable for people who participate in various discussions behind an anonymous pseudonym. It’s really a pitiful thing. By posting under a pseudonym, such people feel free to engage in behavior that they would personally find embarassing if they did it in polite company.

  28. 30

    Don spews:

    Cynical @ 11

    Speaking of action, how many salmon have the Pubbies saved lately with their enlightened land use policies?

    Larry @ 12

    I’m glad at least one person on this board (besides me) knows who has the burden of proof.

    Cyn @ 16 re Larry @ 12 re “Let’s be honest here…the Dems would be doing the same thing if the situation were reversed.”

    Don’t impute the GOPers’ attack-dog mentality to Gregoire and the Democrats, because you don’t know what you’re talking about. I was pretty close to Gregoire and her campaign staff, and I don’t remember seeing you there. There was never any talk about contesting the election if she lost the hand recount. She would have conceded. Don’t talk my word for it, ask her yourself.

  29. 31

    Mr. Cynical spews:

    Don @ 30–
    Yeah, right!
    Also Don, I agree the R’s have the burden of proof. I’ve never seen anyone say that they don’t.
    HOWEVER, the Dems better be prepared to offer hard evidence to refute what the R’s present. This is where the tough tub is for the Dems. If they have anything, what do they disclose?
    If they disclose something, will they suddenly feel this incredible pain only to look down and realize they have stepped on their own dick?
    This is very complex…a chess game…or poker (Texas Hold ‘em)

  30. 32

    zip spews:

    don @ 30

    What land use policies has a Republican had any say in around here? If you don’t think the land use policies are strict enough blame Sen. Cantwell, she takes credit for writing the GMA. Or maybe blame the Democrats that have been running the populous portions of this state for quite a long while.

  31. 33

    K Brady spews:

    Mr. Cynical said:
    “Let’s be honest here…the Dems would be doing the same thing if the situation were reversed. The difference is the Republicans have a much easier target in KingCo due to well-documented prior irregularities that were supposed to be fixed by now but were not.”

    Don’s response to this was:
    “Don’t impute the GOPers’ attack-dog mentality to Gregoire and the Democrats, because you don’t know what you’re talking about. I was pretty close to Gregoire and her campaign staff, and I don’t remember seeing you there. There was never any talk about contesting the election if she lost the hand recount. She would have conceded. Don’t talk my word for it, ask her yourself.”

    Don – You missed the point entirely! Cyn didn’t say that Gregoire would have contested the results if she had lost the hand recount. Obviously, what was meant by “…if the situation were reversed” is just what it says – if Gregoire had won the initial ballot count on Nov 2, AND the machine recount, and then lost by such a small margin in the hand recount, she would be doing the same thing – contesting the results. Does anyone doubt this?

    K Brady

  32. 34

    Don spews:

    Cyn @ 31

    No, Cyn, this is really simple. The Republicans have to show that Gregoire got 130 more illegal votes than Rossi did. All the Democrats have to do is cross-examine. Sort of analagous to a criminal trial in which the defendant doesn’t take the stand but merely points out the doubtful nature of the prosecutor’s evidence.

  33. 35

    Don spews:

    zip @ 32

    Very few, thank God, which is why I vote for Democrats (including Gregoire and Cantwell) instead of Republicans. I’m not a big fan of uncontrolled urban sprawl, stream destruction, people building on floodplains and then wanting government subsidies every time they get flooded out, or the other stuff on the anything-goes crowd’s wish list.

  34. 36

    Don spews:

    K @ 33

    You don’t know what you’re talking about, either. Obviously you don’t know any Democrats. We’re not the kind of people who sit in a cubby somewhere poring over millions of voter names looking for something to complain about. Don’t impute your side’s obsessions to us.

  35. 37

    K Brady spews:

    Don @ 36

    Interesting…what was it I said that gives you cause to assume that I don’t know any democrats? My family has disowned me because I don’t vote for Democrats (anymore). I know first hand what “kind of people” Dems are – my family still hasn’t gotten over the 2000 presidential election, and my father insists that “Shrub” (as he calls the president) was AWOL from the TexANG and should be prosecuted for it! (Talk about obsessing…)
    Whatever the outcome, when it’s all said and done, we will have been through a Constitutional and lawful process. If you are intellectually honest, you will admit that, if the situation were reversed, Christine Gregoire would be contesting the results – but you don’t seem to be able to admit that…
    K Brady

  36. 40

    spews:

    Your “lawyer X” may be too narrowly interpreting the statutory law, and I’m pretty sure he’s wrong in arguing that the courts have no jurisdiction beyond that specifically contained in statutory law.

    The Becker opinion never mentioned the Foulkes opinion. If the court in Becker even knew they were contradicting Foulkes, it isn’t evident in the opinion.

    Look at the GOP brief regarding Becker and Foulkes, and you’ll see a pretty good argument that supreme court opinions aren’t overruled by later opinions which show no knowledge of those prior opinions.

    We’ll know soon, perhaps, whether “lawyer X” got it right. I’m betting he didn’t:
    http://crokersack.blogspot.com.....ocacy.html

  37. 41

    K Brady spews:

    Don @ 39
    If, in fact, you do know Gregoire, why don’t you ask her to respond to the question: “If the situation were reversed, after winning two counts, and winning 38 of 39 counties in the hand recount, would you concede, or would you contest the election?”

    I’d love to hear her response to that question…

    but I won’t be holding my breath.

    K Brady

  38. 42

    torridjoe spews:

    K Brady @41:
    She already answered that question before the certification. She pledged she would abide by the results of the manual recount.

  39. 43

    torridjoe spews:

    Listening to the hearing now:
    -motion to dismiss on lack of court jurisdiction is denied. Courts are the place for contest.
    -motion to change venue is also denied. Chelan will render the initial decision.

  40. 44

    torridjoe spews:

    sorry–meant to add this: currently, counsel (either the Dems or county counsel) is arguing that only the Jan 7 filing is legit under the 10-day-after-certification rule, PLUS that since they filed against individual counties, they had to file within 10 days of THEIR certification, and according to Becker in their opinion, if they were not all done right, the ENTIRE contest must be thrown out.

  41. 46

    K Brady spews:

    torridjoe @ 41

    You all are hopeless, or clueless!

    If Gregoire had one the first two counts, and 38 of 39 counties in the hand recount, she would have been a FOOL to concede without contesting!

    KB

  42. 47

    jcricket spews:

    K – you’re clueless if you think the Republicans wouldn’t be absolutely howling with apoplexy while they called Gregoire a “sore loser” is she tried the same BS as Rossi and the Republicans currently are. When it even looked like Gore might ask for a statewide recount, the Republicans started screaming “Sore Loserman” and sending paid mobs down to the courthouse to intimidate the election workers. The cries of “get over it” started before the Supreme Court even ruled.

    So you can dish it out, but you can’t take it. Feel free to contest, but I have no problem with the Dems throwing a little of the nasty Republican rhetoric right back where it came from.

  43. 48

    K Brady spews:

    First, for the record, let me correct my silly typo in my last post – of course, what I meant to say was,”If Gregoire had w-o-n…”
    jcricket@47 Just what is it that you think I can’t take? My original comment was in reference to Mr Cynical @16: “Let’s be honest here…the Dems would be doing the same thing if the situation were reversed.” The only thing I “can’t take” is that neither Ron, nor torridjoe nor you are willing to admit that Gregoire would contest – IF SHE WERE IN ROSSI’S SHOES.

    BTW – this is nothing like Gore’s loss in 2000 – In this election, Rossi was ahead in TWO counts, but Gore was NEVER ahead, and every attempt by independent entities who went to Florida to recount ballots has come to the same conclusion – Gore lost.

  44. 49

    jcricket spews:

    Doesn’t matter whether Gore was “ahead” or not. Gore thought he might win in asking for a recount and Republicans immediately began calling him a sore loser, demanded he concede and attempted to intimidate election workers. I actually doubt that the Dems, based on their past experience, would have gone to court.

    BTW – this is nothing like Gore’s loss in 2000 – In this election, Rossi was ahead in TWO counts, but Gore was NEVER ahead, and every attempt by independent entities who went to Florida to recount ballots has come to the same conclusion – Gore lost.

    Also – I have to keep correcting this misperception. Read beneath the headlines. Several media studies (Washington Post, NY Times) reported that Gore would have won if certain standards were applied during the recount.

    http://www.washingtonpost.com/.....Nov11.html

    Headline is: Florida Recounts Would Have Favored Bush
    Sub Head is: But Study Finds Gore Might Have Won Statewide Tally of All Uncounted Ballots

    And it is the same scenario, only in reverse. 1000s of African-Americans who weren’t felons were illegaly denied the right to vote based on incorrect felon “purge” lists (that the Republican election officials were warned against using several years in advance). Over-votes that clearly showed voter intent were rejected and never counted in Democratically leaning counties. Even the “chad” standard was applied more “liberally” in Republican leaning counties. But none of those “election flaws” matter to Republicans when they favor a Republican candidate.

    And on a side-note, Republican lawyers argued the counties should break the law in counting late overseas absentee ballots in Republican-leaning counties, while arguing the opposite in Democratic-leaning counties.

    Just FYI – “there [wasn’t] any guarantee that Gore could have succeeded in getting a statewide recount. Florida law provided no mechanism to ask for a statewide recount, only county-by-county recounts.” (WA Post article)

  45. 50

    K Brady spews:

    jcricket @ 49

    Interesting reading, but doesn’t change anything I said before. Despite all of the IFs and BUTs in the article you cited, the opening paragraph describes the conclusion that was drawn from all of the efforts made to find enough votes for Gore:

    “In all likelihood, George W. Bush still would have won Florida and the presidency last year if either of two limited recounts — one requested by Al Gore, the other ordered by the Florida Supreme Court — had been completed, according to a study commissioned by The Washington Post and other news organizations. “

    “Under any standard used to judge the ballots in the four counties where Gore lawyers had sought a recount — Palm Beach, Broward, Miami-Dade and Volusia — Bush still ended up with more votes than Gore, according to the study. Bush also would have had more votes if the limited statewide recount ordered by the Florida Supreme Court and then stopped by the U.S. Supreme Court had been carried through. “

    Gore still would have lost – GET OVER IT!

    Bye Bye. . .