by Goldy, 01/24/2005, 9:10 AM

A quick link to an article by the AP’s Rebecca Cook: “Dead voters won’t count in Rossi’s election challenge.”

Allegations of dead voters and election fraud elicit gasps from outraged voters and pundits, but they won’t really matter in the legal challenge to the Washington governor’s election.

As legal arguments unfolded in court last week, it became clear the case will turn instead on a close reading of the state constitution. Who has jurisdiction over election challenges — the courts or the Legislature? What is an “illegal vote”? What kind of proof does the constitution require to nullify an election?

These questions lack the sexy sparkle of voting felons, true, but the answers will determine whether Gov. Christine Gregoire stays in office.

I found the article a touch confusing (and perhaps, confused), but then… the legal issues involved are very confusing themselves. I’m working on getting some of my own questions answered, and plan to come back shortly with a more in-depth legal analysis (hopefully, from a real-life lawyer!)

In any case, in addition to the constitutional issue that has been raised over who has jurisdiction, the Legislature or the Courts, there appear to be a couple of issues at dispute: the definition of an “illegal vote”, that standard by which an election may be set aside on account of illegal votes, and the actual powers granted the courts by the controlling statutes.

Personally, I still think the GOP is essentially asking the court to ignore state statute and just set the election aside because it supposedly is “a mess.”

32 Responses to “Election contest “a mess””

1. jcricket spews:

I’m sure if it goes to the legislature the Republicans will ratchet up their partisan outrage. Despite a lack of any outrage about what happened in Kentucky, which is actually worse. There a court actually ruled the “winner” of the election wasn’t eligible (not a resident long enough), but the Senate seated her anyway. The Senate even overruled their own committee’s decision (i.e. Republicans said “screw the court, we control the Senate”).

http://www.courier-journal.com/localnews/2005/01/08ky/A1-seum0108-9694.html

I’m not saying that Republicans in WA state are bound by what Republicans do in KY but it’s useful to note that the GOP certainly can’t claim that it’s universally above board. They are just as partisan, if not more, than Democrats, especially when they control the legislature (see Texas).

2. G Davis spews:

Where do they get these AP writers and why aren’t the fabulous writers I’ve found on the blogs put to use…yeesh.

I do resent the selectivity of the Reps in their challenges of elections. That Kentucky one is amazing. Wasn’t there one in NC that was bizarre as well that the Reps glossed over?

Course, given the opportunity, I doubt the Dems would be any better. ;)

This case should be interesting to watch. I just hope that all this energy results in some serious reform of the system not only here in Washington, but nationwide.

3. Aaron spews:

Comment by G Davis— 1/24/05 @ 10:54 am

“Course, given the opportunity, I doubt the Dems would be any better.”

That doesn’t acknowledge the fact that Gregiore pledged to abide by the hand recount before it was completed. Had Rossi made a similar pledge, and abided by it, that most certainly would have been better.

4. Erik spews:

The article did finally add some logic to the debate.

Finding dead voters and felons voting doesn’t make the election a “mess.” There is no evidence or even suggestion that the rate is higher than any other Washington State election or over the average of other states or even more than even a single state in the country. Oh, well, don’t expect the facts to slow down the rhetoric.

With nearly three million voters, there is going to always be someone voting when they shouldn’t. Absentee ballots certainly increase the risk of other people voting for the deceased or the absent.

The counties and the SOS could update the voter rolls each week, conduct background searches of voters and eliminate absentee ballots. This might reduce the error rate but certialy not eliminate it.

5. jcricket spews:

I wonder what the error rates are in Oregon, where they vote 100% by mail (not really fair to call it “absentee” in that case).

6. DCF spews:

Erik, how does Oregon handle their by-mail voting procedures? And is Oregon having the same types of goof-ups that Washington is having? I tend to believe that we need mail only voting so the ballots are handled entirely by employees of the Auditor’s office, and not by the people that work at the polling place. When voters die they need their records updated quickly, just as felons do, to make sure that mail-in votes are counted, or rejected accordingly. It would also seem to me that if voters had a two week window in which to vote by mail, this would help with the work load at the Auditor offices across the state.

7. Erik spews:

I tend to believe that we need mail only voting so the ballots are handled entirely by employees of the Auditor’s office, and not by the people that work at the polling place.

I agree that standardizing the process could help some. However, increasing the number of absentees certainly increases the chances for landlords, widows and widowers to vote for others.

I think Oregon was willing to accept a higher error rate in order to 1) save money, and 2) increase voter tunrout. Whether they made a good trade off is subject to debate.

8. Chuck spews:

That doesn’t acknowledge the fact that Gregiore pledged to abide by the hand recount>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

It wasnt a recount, votes were added that were not counted in previous counts, by Goldys standard it wasnt a true recount, it was a new count.

9. jcricket spews:

In the article there’s an interesting quote:

Republican attorneys say it would be impossible to locate specific illegal votes at this late date. “Practically, it can’t be done,” Maguire said. That burden of proof, he added, “kind of renders the election contest statute pointless.”

I actually think there’s an easy counter-argument to this. The statutes clearly imagine overturning a close election if they find an extra batch of 5,000 ballots that was “maliciously” set aside by an errant election worker. Or proof that one of the election officials committed fraud. Or a e-voting machine that gave an extra 4,000 votes to one candidate, especially if the election workers were advised that was a possibility. There are many cases the statutes could easily handle (where you can easily meet the burden of proof), the statutes were just narrowly to avoid their being used in the presence of the “normal” distributed errors that happen every election (which include dead people, felons voting and election worker error).

I’m not arguing that the Republicans are wrong to try this argument, just that there’s an easy counter. Republicans are trying to create a “either you set this election aside or no election can be set aside” style of argument, which fails because of the fallacy of the “excluded middle” (there’s a 3rd option).

10. jcricket spews:

(narrowly written, not just narrowly)

11. jcricket spews:

I think the Dems will be arguing much the same with the definition of illegal voters. The statutes are clearly designed to avoid an endless round of second guessing after an election. Without finding fraud (someone purposefully scrubbing the felon list and then paying those felons to vote) or intentional ignoring of the rules, the statutes prevent partisans from endlessly questioning every voter and dragging any close election through the mud forever.

At least that’s what the Dems argument will be.

12. Chuck spews:

jcricket, a felon voting alone is fraud. It is fraudulent for a person who cannot legally vote to vote.

13. Goldy spews:

Chuck… the Supreme Court already ruled that canvassing boards could add ballots during a recount, if ballots were found to be excluded due to error. So it was indeed a “recount” according to the statutory definition.

Cricket… I think you pretty much nailed the standard of our contest statute. There are certainly many situations that can be imagined were it might “appear” that illegal votes or errors advantaged one candidate sufficiently to have changed the outcome. This, however, is not one of them.

14. Chuck spews:

Yes, Goldy but going by that standard, it would in fact be a re-vote

15. Goldy spews:

No Chuck… the statute does not envision such a thing as a “revote.” Indeed, if this election is set aside, the office would be vacated, and a special election would be held. This election would not only be at a new time, with new voters, and on new issues, but it also could have new candidates.

There is absolutely nothing “re” about it.

16. RDC spews:

Does all the negative parading of “felons who voted” bother anyone? Granted, by a narrow construing of the definition, a person who has been convicted of committing a felony is a felon, forever (unfortunately, those who have committed a felony but were never caught are not so labeled). But the press, and the Republican advocates for Rossi’s case, and even to some extent the Democrats, are tainting by association many people who made a mistake, paid the price, and are now trying to live the life of a good citizen. The impression left by all the rhetoric about “felons who voted” is that felons are bad guys, period, who shouldn’t be allowed anywhere near a ballot box. I also have the impression, possibly paranoid, that some in the Rossi camp would like to leave the impression that people still in jail voted. I would like to see more effort made by the press to explain that because a person has served time doesn’t mean that person necessarily has no right to vote, or that the ex-felons who did vote didn’t necessarily realize they were voting illegally if they hadn’t formally had their voting rights restored.

17. Dave spews:

Ah yes, the ongoing hypocrisy of the revote arguments.

http://home.comcast.net/~bspfl/revoteman.JPG

18. reggie spews:

I’m for any governor who doesn’t raise the taxes on condoms.

I already pay them enough to screw me.

19. jcricket spews:

RDC – You’re very perceptive there. In fact, in this state, felons can get their right to vote restored by merely jumping through some beauracratic hoops, assuming they’ve served their sentence and paid any fines. There’s no other “special” qualifications a felon has to meet to get their right to vote re-instated. So WA state does treat felons reasonably well. So one could argue that the intent of our laws is to re-enfranchise felons and focusing on felons’ voting as somehow “horribly illegal” is preying on people’s fears.

http://www.aclu-wa.org/ISSUES/voting_rights/Restore.vote.html

There are other states (like Florida) that permanently/automatically restrict felon’s right-to-vote after they’ve paid their debt to society. Alexander Keyssar, the author of “Right to Vote”, offered historical evidence outlining the emergence of felon disenfranchisement laws and their flimsy legal rationale.

The rationale for disfranchising felons is so flawed and so thin. In the nineteenth century, these laws were passed first as part of the criminal codes. They were seen as a kind of punishment. By the late nineteenth century, it was clear to many people that it made no sense as punishment. It didn’t fulfill any of the normal objectives of punishment. It wasn’t a form of retribution; it didn’t deter crimes. People do not say: “I’m not going to hold up a gas station because I’m not going to be able to vote.” It didn’t rehabilitate anyone. The argument then shifted to a bizarre notion that it was necessary to protect the “purity of the ballot box.” This was based on the rather dubious assumption that somehow people who had committed other crimes might be more likely to commit electoral fraud.

From an interview at: http://www.christianitytoday.com/books/web/2000/nov15.html

20. jcricket spews:

No Chuck… the statute does not envision such a thing as a “revote.” Indeed, if this election is set aside, the office would be vacated, and a special election would be held. This election would not only be at a new time, with new voters, and on new issues, but it also could have new candidates.

There is absolutely nothing “re” about it.

Except that the Republicans are deliberately trying to confuse the public into believing the re-vote is similar to the re-count. Just like when KC was allowed to correct misfiled (but otherwise legal) ballots during the hand re-count, the Republicans tried to paint that as equivalent to the Republicans asking counties to reconsider local absentee ballots properly rejected because they were mailed back late.

Goldy’s right on the mark. The Republicans are deliberately downplaying what would happen if this election is set aside because they know public support would drop precipitously if the true costs (a California style debacle) were well publicized. They want everyone to think it’s as simple as printing out some new ballots with Gregoire + Rossi on them.

21. LittleS spews:

RDC–Are you kidding me with all your whining about the poor felons? Contrary to your rant…”because a person has served time doesn’t mean that person necessarily has no right to vote, or that the ex-felons who did vote didn’t necessarily realize they were voting illegally if they hadn’t formally had their voting rights restored,”…the law is pretty clear that felons in fact do not have the right to vote. However, once a felon has fulfilled all of his or her obligations to society, he/she can apply for a certificate of discharge, which reinstates those rights. If they haven’t had their right to vote reinstated, they shouldn’t be allowed anywhere near a ballot box. That’s the law, if you don’t like, get it changed. But just because you don’t agree with that law doesn’t invalidate it. I think the Seattle Times did a pretty good job of explaining that felons who really want to vote can do so if they make the effort.

As for whether the felons realized they were voting illegally is beside the point. The point is they voted, it was illegal, and therefore that vote is invalid. Whether they meant to is irrelevant. There should be a new election.

On a different note: I especially love Dean Logan’s pathetic quote that it’s not his job to make sure felons don’t vote illegally. (“I don’t think it’s the responsibility of the election administrators to essentially do background checks on registered voters.”) What a joke. If it’s not his job, who in the hell should be doing it?

22. RDC spews:

LittleS…You missed the point of my “rant” (nowhere did I say I didn’t agree with the law), but I agree with your second paragraph insofar as it concerns the election contest;however, you concluding sentence to that paragraph is a non-sequiter, as I read the law. I also think Dean Logan’s quote makes sense, if you are not predisposed to thinking ill of everyone in King County government. Consider what you would,or could, do, if you had Dean Logan’s job, to make sure felons would not be able to vote illegally.

Speaking of non-sequiters, the law is pretty clear that it is illegal to drive an automobile at a speed of over 70mph on our freeways, but I’d wager you’ve done it.

23. LittleS spews:

Talk about a non-sequiter. What does speeding have to do with felons voting? It makes no difference whether I’ve broken speeding laws…a traffic violation doesn’t invalidate my civil rights. Committing a felony does. It’s apples and oranges.

But I’m even more concerned that you believe Dean Logan holds no responsibility for monitoring whether felons vote in his county. New Mexico seems able to make sure their felons don’t vote, why can’t Dean Logan? It’s a law relating to the administration of elections, and Logan’s job is to manage elections.

What exactly is Dean Logan’s job, anyway? Because it sure as heck doesn’t seem to have anything to do with running King County’s elections competently.

And no, my criticism is not reserved solely for Logan. Other counties apparently allowed felons to vote. The difference is, I don’t hear any of them whining that it’s not their job. In fact, Pierce County’s auditor Pat McCarthy stepped up to the plate when faced with felons voting, and admitted that although they try to monitor it, sometimes they fail. But never did McCarthy try to weasel out of taking responsibility.

24. RDC spews:

LittleS….Yes, of course the speeding comment was a non-sequiter. I clearly labeled it as such. The point was that the fact that a law is clear doesn’t keep people from violating it, sometimes inadvertently. And I did not say that “Dean Logan holds no responsibility for monitoring whether felons vote in his county.” I was responding to his “background checks on registered voters” quote, which is a different thing from monitoring the problem. Anyway, we are obviously talking past each other, so it’s time for a change of subject.

25. jcricket spews:

When someone speeds, they’re usually vaguely aware they’re “breaking the speed limit” (i.e. breaking the law), but they’re mainly concerned with getting somewhere fast. They might also assume that it’s OK to break the speed limit since other people are doing it, or other people are driving faster, or they haven’t been caught.

The analogy is fair, as long as you don’t assume that because someone is a felon, everything they do is “suspect”, including their attempt to vote. I’m guessing that for most felons, if they receive a ballot in the mail or are allowed to register, they assume they’re not breaking the law. They may be wrong, but they’re not likely trying to do something fraudulent. Of course some here would argue that any felon is likely to also have “other nefarious purposes” (because they are a felon).

The fact that most people don’t know how felons get their right to vote back and the main pre-requisites are that felons serve their time and pay any fines probably increases the perception among felons that once they’re out of jail, if they get a ballot or are allowed to register, they’re legal to vote.

26. M spews:

Q: Which of the following arguments did the Democrats in the legislature make, regarding the gov race?

The legislature cannot handle this! It must go to the courts!
The courts cannot handle this~! It must go to the legislature!

A: BOTH~! Talk about confused !!!!!!

27. Goldy spews:

M… ah well… lawyers do say the darndest things.

Personally, I’d rather the courts decide, but there apparently is precedent for taking it to the Legislature. The Democratic attorneys will do whatever they think gives their client the best chance of winning.

28. David spews:

Chuck, could you cut down on the “>>>>>>>>>>>>>”s? We understand that you’re quoting; but the parade of angle brackets is getting wider than the comment window!

29. David spews:

reggie comments: “I’m for any governor who doesn’t raise the taxes on condoms.

Reminds me of my favorite judicial opinion ever: Regalado v. State, 872 S.W.2d 7, 11 (Tex. App.) (Brown, J., concurring), cert. denied, 513 U.S. 871 (1994). It was a criminal obscenity case in a Houston court: the defendant was charged with illegally selling vibrators (in Texas, sale of a sex toy is a Class A misdemeanor, punishable by a year in jail and a $4,000 fine); on appeal this court affirmed. Here is Justice Curtiss Brown’s (reluctantly) concurring opinion, in its entirety:

Here we go raising the price of dildos again. Since this appears to be the law in Texas I must concur.

30. DCF spews:

Erik, “I agree that standardizing the process could help some. However, increasing the number of absentees certainly increases the chances for landlords, widows and widowers to vote for others.”

If each ballot were mailed in, the accompanying signature would have to be checked by the Auditor’s office, votes by unregistered voters, dead people, and felons would be caught (assuming the Auditor’s office is run correctly and their records kept up to date). When a felon, dead person, or an unregistered voter, votes at a polling place there is nothing to tie the vote to the voter for later verification–so I’d think that it would be much easier for these folks to pull off their deception in person rather than by absentee. Since a relative of a dead person would have to practice their signature for an absentee ballot, it would not be hard for them to sign the voter book at the polling place and vote, after all the poll workers don’t ask for picture ID when a person comes in to vote. Plus as you said, vote by mail would save us a lot of tax money.

31. jcricket spews:

I think all vote by mail is a good idea. Standardizes the method of voting used and type of ballot issues. I don’t think Oregon’s had many problems with it.

Combine vote by mail with earlier primaries and uniform (state-wide) vote counting and signature matching standards and regulations and we’re getting somewhere.

We could make it even easier for voters with access to a computer, and make it possible to select your choices online and print out a perfectly-filled-out (no stray marks, no over-votes, no accidental undervotes, no half-filled ovals) ballot.

Ballot box stuffing could still be prevented by mailing out the special envelopes required to mail in the printed ballots.

32. G Davis spews:

In an all mail vote, how do you reconcile the dumber than rocks voter who circles the name rather than fill in the oval sorts of mistakes?

Wouldn’t that require more ballet *enhancing* which is one of the root points of contention in this current mess?