Nobody ever said democracy was perfect

I am continuing to work on my analysis of Dino Rossi’s BIAW-backed election contest, and I’m still trying to get some expert legal advice. But I thought I’d share a little epiphany I had about what does or does not constitute a flawed election.

I have argued for months — before the hand recount even began — that the margin of victory in this election is so far within the margin of error, that we could never confidently determine the outcome. This is supported by the scientific literature, and as it turns out, by the known facts in this case.

For pragmatic reasons, I have always been comfortable with a degree of uncertainty… and apparently, so were the legislators who drafted our election laws.

Implicit in the recount provision is the acknowledgment that elections are imperfect (we wouldn’t conduct a recount if they were not.) While statute clearly assumes that a recount is more accurate than the original preliminary count, there can be no reasonable expectation that it be flawless. The statutory remedy for an extremely close election — even one in which the final margin of victory is but a handful of votes out of 3 million — is a single, hand recount. Statute accepts these results as final, despite the statistical (and common sense) likelihood that a second hand recount might produce different results.

There is a contest statute, however its purpose is not to prove that an election is flawed… we already know that. The intention of the contest statute is to allow us to fix errors and illegal votes while they are still correctable, or, to redress an election in which it appears that fraud, misconduct, or errors have actually changed the outcome. Rossi’s burden, at the very least, is to show the appearance that these disputed ballots accrued to Gregoire over him in numbers sufficient to have given her the governorship.

Given the evidence made public thus far, he cannot do this.

The acceptance of uncertainty implicit in our recount provisions is equally implicit in the contest statute… and with good reason. If the standard for setting aside an election was merely to prove that the margin of error is greater than the margin of victory, then all close elections would end up in court, and nearly all would be set aside. Such a policy would be impractical and untenable.

Rossi’s attorneys understand this, and while they’ll take a shot at repeating in court the same lame arguments they’ve made in public, their real hope lies in convincing the court to reach outside the contest statute entirely. To do this they will have to prove that this election was so fundamentally flawed, so outside the norm of accepted practices, that the courts must take extraordinary steps to restore the public’s faith in the process.

But as I’ve repeatedly stated, the only thing extraordinary about this election is its extraordinary closeness. Errors occur in every election, and while Rossi supporters might consider this explanation a load of shit… well, shit happens.

Perhaps Republicans really do believe that Democrats are so corrupt and dishonest, that if they looked hard enough they would surely find evidence of a “stolen election,” instead of just the typically flawed one we always have. I suspect the dispirited attitude now emanating from the right-blogs, flows from the growing realization that there is no corruption, no fraud, no widespread pattern of pro-Gregoire “mistakes”, just the usual distribution of random errors.

Could these errors have changed the outcome? Absolutely. But unless Rossi can prove that they probably did, his best shot at a new election will be in 2008.

Comments

  1. 1

    Rick spews:

    So let’s just forget about the fact the most “errors” came from Democrat heavy King County. “Pay no attention to the man behind the curtain…”

  2. 2

    Rick spews:

    The Gregoire camp is like a football team that just got the benefit of very sloppy call and is in a dead hurry to get the play off before it can be reviewed. “Move-on” is just a Democrat code word for “let’s pretend we can get away with this”

  3. 3

    Jeff spews:

    So let’s just forget about the fact the most “errors” came from Democrat heavy King County.

    Yeah, and your chances of being hit by a bus is higher at the corner of Fourth and Pine than in all of downtown Preston.

    So what’s your point?

  4. 4

    TJB spews:

    Goldy -

    You’re spot on! Therefore when things finally shake out in the courts you will have nothing to worry about.

    What are you going to say if the courts rule in favor of Rossi? Hopefully you will take the time to congratulate him as you’re eating crow. Or, maybe you’re response will simply be “shit happens”.

    Again, since you’ve already got it all figured out no worries right?

  5. 5

    eagle spews:

    Excellent analysis, Goldy. I’d only add that this all turns on the Supremes (the bench that will ultimately deal with these issues). And from what I know of their style, the substance of their rulings and how they approach their authority I think it is extremely unlikely they would tamper with the results of an election, no matter how extraordinary. Courts generally, and this court specifically, are loathe to overturn, rerun or throw out certified elections.

    My prediction is they will follow the same course on these matters as they did in the two previous rulings on this election: they’ll give a very strict interpretation of the law (as in ruling against Democrats when they wanted to ‘recanvass’ rather than recount & against Republicans when they wanted to prevent canvassing boards from correcting mistakes). The Republicans arguments require some very creative interpretation of the election contest law, and I just don’t see this bench biting.

    Please continue to research this. It’s a fascinating subject and makes for great debate.

  6. 6

    steven spews:

    I think you’re analysis is basically correct. Setting aside the contest based on illegal votes when all they have are 300 is not going to happen. I think the greatest vulnerability is the enhanced ballots. If the court finds that the original marks can’t be reviewed due to the actions of the election workers, that could provide the fundamental flaw that you reference. It will definitely be interesting to watch.

  7. 7

    John spews:

    “Move-on” is just a Democrat code word for “let’s pretend we can get away with this”

    Exhibit A: Sore-losing, whining R who spews bile in every direction to deny the fact that his candidate did not receive enough support to prevail in the election. Does not want to ask himself why so many R’s stayed home on election day.

  8. 9

    Nelson spews:

    I admire your analysis and agree that it’s right on. None of the “evidence” thus far collected by the GOP sore-losers appears to have anything even remotely close to what would be required to discard this election. In fact, if the best that they could do after spending the millions of the BIAW money to search things out is a tiny handful (300?)of errors out of 3 million votes, then the state and the counties actually conducted a miraculously error-free election. I think any state would be proud to have an error rate of just 0.01% — that’s one-one-hundredth of one percent! And it makes the election 99.99% accurate.

    Considering that you have thousands of volunteer citizens manning a myriad of election devices and systems after just an hour or two of training, all of the counties election officials should be congratulated on their effectiveness by every citizen in the state.

    I think the Republicans have already given up and are now just going through the motions. They don’t seem to have any enthusiasm any more for this contest I read today that they now acknowledge that a “re-vote” will not happen so they now say set aside Nov. 2004 and call a “special election.”

    Not gonna happen. No way, no how, no law providing for that.

  9. 12

    Jim King spews:

    Ya’ll just keep whistling in the dark as you walk past the cemetary… Keep repeating the mantra “Gross misfeasance doesn’t matter” and maybe the judges will ignore the public ire at this mess… Ya hope…

  10. 13

    spews:

    Jim King writes:

    Keep repeating the mantra “Gross misfeasance doesn’t matter” and maybe the judges will ignore the public ire at this mess…”

    Well, Jim, the whole point of Goldy’s post is that there’s a fundamental difference between misfeasance and human error, and that it’s awfully difficult to say that an error rate of 0.02% can be considered “misfeasance”. But, hey, if you keep repeating a lie, maybe it will become true?

    That said, I darn well hope that the judges apply the law rather than spend a great deal of time harkening to partisan bickering. It’s their job to ignore the public ire at any mess.

  11. 14

    Mark spews:

    Rick,

    According to Webster:

    Malfeasance: wrongdoing or misconduct especially by a public official

    Misconduct: mismanagement especially of governmental or military responsibilities

    Considering that King County both violated state law in how they did some things (enhancing ballots, etc.) and that they were warned more than once that this was a problem (that they acknowledged at least once), how can you say that this was anything but…

    Mismanagement of governmental responsibilities by a public official?

    Which is what malfeasance is.

  12. 15

    spews:

    The Gregoire camp is like a football team that just got the benefit of very sloppy call and is in a dead hurry to get the play off before it can be reviewed. “Move-on” is just a Democrat code word for “let’s pretend we can get away with this”

    I like the sports analogy. Let’s take it further: there was only one final outcome, one final score. Someone needs to remind Rossi that you haven’t won a game just because you were ahead at halftime or at the end of the 3rd period. You had to be ahead at the end of the game. He continues to say he won twice eventhough he trailed when the final tally was completed.

  13. 16

    Erik spews:

    So let’s just forget about the fact the most “errors” came from Democrat heavy King County. “Pay no attention to the man behind the curtain…”

    Thats one of Rossi’s problems from a legal and PR standpoint.

    There’s not a shed of evidence that KC had a higher rate of felons voting than any other county in the state (Pierce and Walla Walla are likely the highest) nor that KC had a higher rate of people voting twice or dead people voting.

    Nor is there any evidence or suggestion that the state of Washington or KC had a higher historical rate of errors that any Washington county or other state in the union in the last 50 years.

    Thus, the GOP’s latest press conference is a non-event. Under their theory, a condidate could never prevail in an election unless the difference of the votes was less than the margin of error which would likely be at least a couple thousand of votes in any state.

    If everyone voted the same, the race would still be under the margin of error, thus, the race could never be resolved.

    No, the election statutes and constitution provisions value finality even if a candidate wins by a single vote even if the voting marin is within the margin of election error.

    Perhaps the GOP will find illegal conduct that will void the election. However, they haven’t found any yet and discovering felons and dead people that voted (mainly for Rossi) won’t help them either.

    The best hope that the GOP has is the misfed provisional ballots at different voting places. However, given the number of ballots involved in the state, the error rate remains very low in Washington and perhaps the lowest in state history, one cannot know.

  14. 17

    Mr. Cynical spews:

    My fine little pinheaded Lefty Pals–
    Keep repeating that nothing the R’s have shown matters. I love it! Then be prepared to be pounded for the next 4 years as the Democratic Party who “minimizes, marginalizes and pretends” nothing bad happened here.
    You can change from the JackAss Party to the Ostrich Party.

    Why would any of you think you know everything that will be presented in Court?? Are ya nuts?!!

    Have you ever thought about what might have been in the box of provisional ballot affadavits your main man, Paul Berendt, brought in oh so long ago? Remember, Berendt attested to the validity of every single affadavit in that box, didn’t he?? I mean, Berendt personally brought them in and votes were counted because of them. Pauly, Pauly, Pauly. If even one of those affadavits is illegitimate, Berendt is personally responsible. PERIOD!! He has been praised by so many of you pinheads for his efforts. I love it. I can’t wait for your “spins” when that analysis comes to light. What are you going to say?
    Paul brought them in, but gee, he’s not responsible???
    Let’s so who gets the last laugh…and the last cry.
    You pinheads still don’t understand that the R’s don’t have to present all the evidence yet. I would think you would all be a bit more reserved until it is all in.

  15. 18

    Goldy spews:

    Keep repeating the mantra “Gross misfeasance doesn’t matter” and maybe the judges will ignore the public ire at this mess…

    Jim, the judges are supposed to ignore public ire, and rule on the law. That’s what I’m counting on.

  16. 19

    Bob spews:

    Goldy @18

    While judges are suppose to ignore the public ire and rule on the law, they are still elected official who need to run for re-election.

    I feel most judges take their impartiality seriously, but I also feel most Washington State judges understand that people are pretty upset. I had dinner with my liberal college-going son tonight and he was very upset about the election problems.

    Just as Johnson & Johnson’s approach at taking responsibility after product tampering is taught in business schools as an example of how to do things, Ron Sims example of hiding in a hole after the election will be taught in Public Administration courses as how not to do things.

    This is a democratic party no-win situation. If the courts throw out the case the backlash will toss many Democrats out of County, State and federal elected offices.

    The Dem’s best case scenario, from a public relations perspective, is some kind of judicial Solomon-like decision that allows all parties to claim something. I really expect the judges to try to find some common ground that can be a reasonable compromise.

    My guess is that the judge(s) will find that Rossi was harmed by gross failures among the counties (especially King County), but that the election can not be turned over or that a revote is not possible and the judge(s) will provide a decision that allows Rossi and the Republican Party to sue King County for many many many millions of dollars.

  17. 20

    Goldy spews:

    Bob, courts interpret the law, not the legitimacy of public anger.

    I agree that there is no good case scenario for the Democrats, but that is not due to corruption, fraud or misconduct on their part, but rather their pathetic response to the Republican’s PR campaign.

    Think about it. Had those 735 ballots that were the subject of the second court case, been properly canvassed the first time around, Gregoire would have won the automatic machine recount, and that would have entirely changed the public’s perception of this election. Yes, there were errors in this election, and Rossi has benefited from them from day one.

  18. 21

    Erik spews:

    Cyn,

    Keep repeating that nothing the R’s have shown matters.

    If you disagree, please state the substantive reason why.

    Have you ever thought about what might have been in the box of provisional ballot affadavits your main man, Paul Berendt, brought in oh so long ago?

    Yes. The state supreme court ruled that they were valid votes:

    http://www.secstate.wa.gov/off.....pinion.pdf

    The court unanimously found that the ballots were valid. Nor did the court find any wrongdoing that you suggest. They are not going to revisit the issue.

    Why would any of you think you know everything that will be presented in Court?? Are ya nuts?!!

    The GOP has been announcing everything they have do date trying to win a PR campaign.

    I doubt they are holding anything back, it wouldn’t do them any good as the hearing on the 4th of February may result in having the action dismissed or moved to another venue. If they don’t file what ever they have with the court now, it may not be considered. Thus, I don’t believe they would risk having a shot at the contest because of some tactical decision.

    In any event, despite whether one believes that they are holding back a goldmine or simply have no additional evidence, the fact remains that they have not produced to date enough to overturn the election. But who knows, perhaps they will discover something relevant in the discovery process.

  19. 22

    Andrew Carson spews:

    It’s simple. Soundpolitics.org has one-upped ya, Goldy. They have the info, they’ve done the work. All you can do is deny.

  20. 23

    jcricket spews:

    It’s simple. Soundpolitics.org has posted one-too-many false “smoking guns”. They have the paranoia, they’ve done all the shrieking. All they can do is cry.

  21. 24

    John spews:

    What you have here is an election non win that is the result of bias but in a manner that is sociologically but not statistically verifiable by the apparent losers. Given the overwhelming D majority in King County you have a partisan leaning cross section of people who are available to do the hand recount. Simple demographics of available workforce. Now conciously or subconciously these thousands of people each might slip a ballot into the D pile and the R observer or counter working along side doesn’t catch it. “But hey 1 vote here or there isn’t going to matter right”? (The rationalization of the person making the slip). Now repeat this by how many D counters are working in KC compared to the R counters. “Hey one that slips by doesn’t matter really does it”? Now you see why the machine count is more accurate than a hand count. The machines are not partisan. In an election this close, a hand count is clearly more flawed. It is very easy to understand but also very difficult to prove for the same reasons that it occurs. The sheer numbers involved. Ultimately the voters are the ones wronged here. Whether the R’s prevail in court or not the public knows that the election was flawed and they will respond. I wouldn’t like to make book on my chances of being re-elected in 06 if my term was up and I have a D after my name on the ballot.

  22. 25

    Erik spews:

    The democrats seem to have alot of the litigation documents on their website including the latest pleadings and arguments from both parties. Many more recent ones than the secretary of state.

    No, you don’t have to be a democrat to look at them. Maybe they will add some more content and everyone can review their positions and arguments. Let me take a wild guess that none of them will change.

    http://www.wa-democrats.org/site/kbcb.htm

  23. 26

    D Huygens spews:

    Despite the demographics of King Co., every single ballot in KC was examined by 1 Democrat and 1 Republican, who had to come to agreement. If anything, that would probably depress the natural demographic tendencies.

    Also, it is no wonder that more discrepancies were discovered in KC, as it contains 1/3 of all voters in the state. But in terms of discrepancies per capita, as measured in vote changes from the first count to the hand recount, divided by total number of votes, King County isn’t even in the top ten of error-prone counties.

  24. 27

    Bob spews:

    Goldy @ 20
    “I agree that there is no good case scenario for the Democrats, but that is not due to corruption, fraud or misconduct on their part…”

    I politely disagree. There was fraud.

    When I looked up fraud in the legal dictionary and the definative court case for Washington, I saw that it is mostly about someone relying upon an other and being harmed where that other knew what they were saying was wrong and where the person should be able to reasonably rely upon the statements. (I am trying to keep it simple).

    The fraud I see was that King County (among others) had known voting system problems (slow sending out of absentee ballots, provisional ballots not being properly handled, obsuring voter marks, illegal people registered, etc.) and that public officials said that those problems had been fixed. Various citizens and the Republican party relied upon the statements of the King County (and other) officials (who had a fiduciary responsibility to the voters) and the Republican party and various voters were damaged and/or lost rights because of the false statements by the election officials.

    That sure sounds like fraud to me. It might not be organized political party fraud to rig an election, but it is still fraud in my book.

    There was fraud in the election, it just wasn’t the “kind” of election related fraud we normally think of. It was still fraud though.

  25. 28

    Andrew Carson spews:

    Apparently, jcricket hasn’t actually taken a look at soundpolitics as of late. They have the numbers, they ran them.

    Paranoia? Only from a Trotskyite.

  26. 29

    Goldy spews:

    Given the overwhelming D majority in King County you have a partisan leaning cross section of people who are available to do the hand recount. Simple demographics of available workforce.

    John… the problem with your analysis is a) the hand recount process required separate counts by the D and R to match, thus eliminating such bias, and b) that same process took place statewide, in all 39 counties, with little dispute, in a state that was virtually 50-50. It seems odd to suggest that only KC counters would express bias, and those in Rossi counties would not.

    I politely disagree. There was fraud.

    Bob… well then, I suppose we must (politely) agree to disagree. Your impression that there was fraud was formed by the barrage of disinformation, isolated facts, and half-truths being tossed about by the other side. If you or the GOP believes KC election officials committed fraud, then I suggest Norm Maleng be pushed to file charges. Otherwise, such allegations are all just meanspirited rumor-mongering.

    jcricket hasn’t actually taken a look at soundpolitics as of late. They have the numbers,

    Andrew… oh… (u)SP has numbers! Well then, it must be true. God knows the Snark would never publish deceptive numbers.

    (FYI… as I lose my hair, I’m beginning to look a little like Trotsky. Except there’s no ice-pick in the back of my head. Yet.)

  27. 30

    John spews:

    Apparently, jcricket hasn’t actually taken a look at soundpolitics as of late. They have the numbers, they ran them.

    I did. I’m impressed with Shark’s fanaticism. I’m even impressed somewhat with his self-restraint. That alone must have taken everything he had. The word “fraud” was strangely absent from his conclusions. A commenter named scottd pointed out the problems with Shark’s work a lot of which Shark himself admitted, then Shark pulled an ad-hominem on scottd.

    No-one’s saying elections can’t be improved but these (u)SP types
    have no credibility with me when they behave that way.

  28. 31

    John spews:

    There was fraud in the election, it just wasn’t the “kind” of election related fraud we normally think of.

    I guess you can take off your orange now Bob.

  29. 32

    G Davis spews:

    I find it humorous the talk of voters being *wronged* in an election that virtually half the voters voted Rep and half voted Dem. If the last election is somehow overturned or thrown out to pacify one of those halfs, won’t the other half be *wronged* by that action?

    “There was fraud in the election, it just wasn’t the “kind” of election related fraud we normally think of.”

    Is there more than one *kind* of fraud under the legal definition?

    Isn’t presenting misinformation as truth fraud?

  30. 33

    RDC spews:

    Goldy…re land use (GMA) Westneat has a column in today’s STimes. I intended to mention it on the appropriate thread, but it seems that degenerated into Nazi name-calling. Westneat’s column, unfortunately, focuses only on one rural landowner. This is a very important issue that we might be able to influence. I’d like to see some specific comments from those who own rural land about what they see as the specific flaws in the CAOs. Thanks.

  31. 34

    spews:

    Goldy’s right. We’re not looking at intentional fraud, but rather a coincidental string of honest mistakes.

    For instance, when my Grandfather voted, he had simply forgot that he’d been dead for 15 years. Could happen to anyone.

  32. 35

    DCF spews:

    I’m mad about the election SNAFUs because the votes couldn’t be counted correctly the FIRST TIME! I’m not mad @ Repubs or Demos–I’m mad at the sloppy work done across the entire state! You’ll never be able to convince me that employees in the state’s auditor’s offices are completely Repub or Demo sympathizers!

    John #24–I don’t know how many times I have to say this, but my county (traditionally Democrat) made a big mistake in the first vote tally–they ran a block of ballots through the counting machine TWICE–this gave our county to Rossi. When it came time to do the machine recount (because the vote was so close) they discovered the mistake and our county went for Gregoire! So you see a vote here, a block of votes there, don’t make a difference!@#! Had state law concerning an automatic recount when an election is close, not been triggered–my county’s vote count would have FOREVER been incorrect!

    We’ll see what happens tomorrow when the DSC is chosen in Olympia–that will tell you something about how Democrats feel about this whole messed up business–both state and federal.

  33. 36

    spews:

    Mark @ 14

    First, by the definitions you provided, “mismanagement of governmental responsibilities” is “misconduct,” not “malfeasance.” By the way, according to Merriam-Webster (www.m-w.com), “malfeasance” is considered obsolete. The preferred word is “misfeasance.”

    Second, enhancing ballots is not only legal, it’s enjoined by Washington Administrative Code (WAC 434-261-090). And, yes, the Republicans attempted to “warn” King County about this, at which point the Republicans were slapped back into place by reference to the above-named administrative code.

    The King County canvassing board has done nothiing illegal. Even the apparent discrepancies between ballots and the voter registration roles that Sharkansky has amply demonstrated fail to qualify as evidence of even misconduct. By any computerized database standards, an error rate of 1/2% is phenomenally good. Sharkansky’s numbers are, in fact, evidence of exactly the opposite conclusion to the one he wants to draw.

  34. 37

    Don spews:

    The thing about those “illegally enhanced” King County ballots is that every single one of them was inspected by a Republican observer before it was enhanced, so if Rossi votes or undervotes were being changed to Gregoire votes, don’t you think we would have heard the Repubs shrieking about it at the time? They haven’t even alleged any votes were changed, much less proved it.

  35. 38

    Dave P spews:

    ‘The thing about those “illegally enhanced” King County ballots is that every single one of them was inspected by a Republican observer before it was enhanced’

    Except you forget the facts – observers are NOT allowed to interfere. But, Dems have problems with facts these days. I’m still waiting for them to decide if Social Security is in trouble (like they said BEFORE the election) or not in trouble (like they are saying AFTER the election).

    Oh, Goldy, the BIAW is not backing this election contest – they are simply using their own funds to find illegal votes.

    But then again, you are nothing but a political hack/shill for the DNC.

    Water must be warm in d-Nile, eh Goldy?

  36. 39

    Don spews:

    Reply to #38: The “enhancing” was done by a county worker in the presence of observers from all three parties (Dem, Rep, and Libertarian) who were allowed to inspect the ballot and could ask to send it to the canvassing board. These observers were designated by their parties, sat at the enhancing table, and were shown each ballot before it was enhanced. They are not to be confused with observers generally, who could not get close enough to the enhancing tables to see ballot markings. My post said nothing about “interfering” — of course the observers weren’t allowed to interfere with the enhancing or the GOP folks would have been interfering up the wazoo — what I said was if votes had been changed at the enhancing table we would have heard about it. Nothing stopped the GOP enhancing observers from appearing on TV, talking to reporters, or making a public stink about what they saw. But we never heard the Repubs complain that votes were changed from Rossi to Gregoire, or undervotes were changed to Gregoire votes. Why? Because it didn’t happen, that’s why. By the way Dave P., I was there, were you? I was there every day, all day, during the machine recount mingling with Eric Brown (RNC lawyer), Dan Brady (King County lead observer for GOP), Donna May (GOP staffer), and the GOP observers, and I never once heard any of them say votes were changed. Don’t you think they would have said something, if it happened? They didn’t because it didn’t happen. What it boils down to is 98.9% of what is now being said about this election is baloney, pure and simple. People hear something on talk radio and assume it’s true, if it’s what they want to hear. This whole revote thing has turned into a herd stampede, and facts were left by the wayside long ago.

  37. 40

    Goldy spews:

    I was there

    Don, since you were there, could you please answer a question about the enhanced ballots. Were all ballot enchancements done in strict accordance with WAC 434-261-080, or did some enchancements violate the stricture: “Ballots shall only be enhanced when such enhancement will not permanently obscure the original marks of the voters.” …?

    Most press reports have described white-out tape being used, and ovals filled in on top of it. But some Republicans have claimed some ballots were marked directly.

  38. 41

    Don spews:

    In reply to #40, I can’t answer that question because I was not one of the enhancing observers during the machine recount (which is when all of the enhancing was done), and could not get close enough to the enhancing table to see what was taking place. There was a wall with glass windows and about 30 feet separating the observation area from the tables. However, I can say that when I was observing the manual recount, I heard a GOP counter tell the Democratic counter at her table that was sending all of the enhanced ballots to the canvassing board because “I can’t see what’s under the white out.” However, it’s not clear to me whether she was referring to white out liquid, or white out tape (which most people call redacting tape). This observer was pretty weird in other ways, too. Among other things, during breaks she got very friendly with the CNN camera man.

  39. 42

    Don spews:

    correction of typo — should read “at her table that she was sending all of the enhanced ballots to the canvassing board”

  40. 43

    Bob spews:

    To G Davis at 32 & Goldy at 31

    “Is there more than one *kind* of fraud under the legal definition?”

    “Isn’t presenting misinformation as truth fraud?”

    From what I understand as a non-attorney in Washington, fraud requires 9 points to be satisfied, so there are variety of ways a “fraud” can be structured.

    To answer your last question, if someone who is famous for not telling the truth tells you a whopper, it would probably not be fraud. If someone told you misinformation but they honestly thought it was the truth, it might not be fraud. If you asked for an interpretation of IRS rules and were told a misinterretation by someone advertising themselves as a wildlife biologist, he probably wouldn’t be guilty of fraud, because you had no reasonable expectation to rely upon his answer. If there were no “damages” or “loss of rights” there would not be any fraud. Fraud is a bit more complicated that just spreading misinformation.

    I honestly don’t believe Ron Sims got on the phone and called Dean Logan and said, “stuff a ballot box or find enough ballots for Chris to win the Governor’s race by 129 votes.” That is the kind of classic fraud assoiated with elections that most of us think about. I also think that this did not happen.

    As to what happened, especially in King County, it is a fact (that can be verified by examining 1998 King TV reports, from reading the King County Citizens Election Oversight Committee May 2004 Report, from reading archieved Seattle Times newspaper articles) that there were past problems with delayed mailing out ballots, that there were past problems with obscuring voter marks, that there were past problems identified with provisional ballots, that there were past problems with people being registered to vote who were not elligible to vote.

    King County elections officials, as quoted in various media reports at various times, have said those problems had been fixed. The fraud laws indicate that half truths and omissions as well as outright false statement can all count.

    My “leap of faith” is that the King County election officials (and others) knew or should have reasonably known that what they were saying about “fixing the past problems” was not a whole truth, but they were saying it was fixed for polticially motivated “spin” reasons.

    These various King County election officials are in positions where they have a fiduciary responsiblity to the voters. They also have positions of authority such that “common citizens” should be able to rely upon their statements and act accordingly.

    I think that it and be shown that certain citizens who relied upon these election officials statements as being truthful, either lost their right to vote within the election or were damaged.

    (I find it especially interesting about some Democrats arguing that the illegal voter roles being the responsiblity of voters and not government officials to clean up by challenges and yet the voters relied upon King County officials who said the problem was fixed.)

    I do think that there was fraud involved in this past election.

  41. 44

    John spews:

    “fixing the past problems” was not a whole truth, but they were saying it was fixed for polticially motivated “spin” reasons.

    Let me draw a little analogy with another public agency problem.

    Not too long ago some parents at a northeast Seattle elementary school noticed that the color of the drinking water out of the fountains was orange. This got the parents concerned and after analysis they found there were dangerous levels of lead in the orange water.

    The world spread around and it was found that lead was a problem in the drinking water at other schools as well.

    To make a long story short – this problem was nothing new. A campaign to clean up the water had been put in place in the late eighties I believe. But the money ran out, priorities were shifted, a couple levies didn’t pass and the issue was handled by instructing the custodians to run the taps first thing in the morning to expel the built-up lead. You can imagine how that worked out.

    Bob, the public has a short memory. They call for something to get fixed, lose focus, the funding gets hijacked or sidetracked for whatever reason and well, I think you see where I’m going.

    This is not to say that things shouldn’t get fixed or a few butts shouldn’t get chewed out however we shouldn’t jump too quickly to calling it fraud.

  42. 45

    Bob spews:

    John @44

    Regarding the King County elections, ……….its fraud.

    Let me do an analogy. Some can deny it all they want, some can parse words to deny it, but a little blue dress will show what the true facts were.

    If you look the other way when things are in violation of state and federal election laws and you know that there is a problem you haven’t gotten around to fixing, because of a reprioritization of public funds, because of a lack of public pressure allows you to focus on other things, BUT YOU SAY THAT THINGS HAVE BEEN FIXED WHEN THEY HAVEN’T, thats fraud.

    There was fraud by King County election officials, it wasn’t the clasic kind of election fraud people associated with Chicago or certain parts of Texas, or that I associate with certain San Francisco elections, but it sure seems to me to have all the key ingredients of “fraud.”

    Some might not want to believe it, but if you distance yourself and look at the pieces, you look at the known problems, you look at the statements, you look at the statements being obviously false in light of this elections revelations, its still fraud.

  43. 46

    Mark spews:

    Rick @ 36

    …by the definitions you provided, “mismanagement of governmental responsibilities” is “misconduct,” not “malfeasance.” …according to Merriam-Webster (www.m-w.com), “malfeasance” is considered obsolete. The preferred word is “misfeasance.”

    What the hell are you talking about? The question is, “Does any of this malfeasance or simply a bunch of boo-boos?”

    According to the exact same site you cited, Malfeasance is “wrongdoing or misconduct especially by a public official.” And that, furthermore, Misconduct (a part of the Malfeasance definition) is defined as “mismanagement especially of governmental or military responsibilities.” The only part that is “obsolete” is the root word “feasance,” not the complete and current word “malfeasance.” Oh and the second definition of misconduct applies here, too: “intentional wrongdoing; specifically : deliberate violation of a law or standard especially by a government official.”

    Legally-speaking, “malfeasance” and “misfeasance” mean two different things and depend on how much of the action was knowing and/or deliberate. In other words, if the Secretary of State or the King County Citizens’ Elections Oversight Committee were to tell you not to do something and you did it anyway, that would be malfeasance.

    And if you’re going to cite the WAC, at least cite the proper section.

    WAC 434-261-080 states, “Ballots shall only be enhanced when such enhancement will not permanently obscure the original marks of the voters.” The above quote is verbatim from the SoS’s review of King County’s elections process two years ago.

    The permanent enhancement of the ballots (instead of creating the duplicates) is illegal. KNOWINGLY illegal, considering the SoS’s warnings to KingCo.

  44. 47

    spews:

    Mark @ 46

    Well, I was responding to Mr. King’s earlier remarks about “misfeasance,” pointing out the lack of evidence that such misfeasance actually existed. At this point, it’s worth noting that allegations of misfeasance aren’t evidence. For the question of evidence, see Don’s comment at #39.

    Your response was a tad bit of semantic slight of hand, otherwise known as equivocation, that did nothing but repeat the allegation without providing any evidence.

    A falsehood doesn’t become truth by mere force of repeated assertion.

  45. 48

    jpgee spews:

    Re Mark @ 46, if a falsehood doesn’t become truth by mere force of repeated assertion John Kerry would be President and GWB would be President of Haliburton. nothing more, nothing less!!!!!

  46. 49

    Mark spews:

    Rick @ 47,

    I’m not sure what you’re disputing. Is it:

    1.) That KingCo Elections was warned at least twice by a KingCo elections commission and the SoS — at least as early as 2003? (Not even including all of the stuff that put Logan into his office in the first place)

    2.) That a vast quantity of ballots in KingCo were permanently altered in the “enhancement” process?

    3.) That the WAC says you can’t permanently alter a ballot?

    4.) That Webster’s dictionary doesn’t define malfeasance and/or misconduct as I have said?

    Please let me know what the specific problem is with the following sentence: “King County election officials and/or workers committed malfeasance in the processing of 2004 election ballots because they permanently, and therefore illegally, altered ballots in the enhancement process, despite being warned not to do so at least once and in writing prior to the commencement of the election.”

  47. 50

    spews:

    Mark @ 49,

    1) I’ll agree that both the Secretary of State and the King Co. Election commission brought to light potential problems that the various canvassing boards and the King Co. auditor ought to have rectified before this election. Neither carried any consequence should King Co. fail to comply, so calling it a “warning” stretches the meaning of the word “warning” beyond the breaking point. Why can’t you just state a fact as a fact without embellishing it with words that don’t add to the controversy?

    2) The phrase “vast amounts” lacks sufficient specificity to be either falsifiable or verifiable. How many? Give a precise number, and then explain why meither side of the bi-partisan observers was able to rectify the problem via resort to the courts under applicable law during the recount such that the assertion remains relevant to the present contest conducted in Chelan Superior Court? If this did, in fact, happen in “vast numbers,” then it very well should have been the subject of litigation well before the manual count was completed, let alone before the certification of the election.

    3) Actually, WAC says that you cannot alter the ballot in such a way as to obscure the original voter’s mark, but details seem to be a problem in your rhetoric. Vague, unverifiable, unfalsifiable accusations seem to be your stock-in-trade.

    4) I have no problem with Webster’s definitions. I have a problem when someone uses those definitions to transform one particularl description of the facts using one particular word into a description of the facts using a different word similar enough Webster’s to include it in the definition of the first yet having very different connotations. Moreover, as you pointed out, this is really about the legal meaning given to words like “misconduct” and “malfeasance,” at which point Webster’s is irrelevant (I’ll point out that you were the one who injected Webster’s into this discussion). That argumentative tactic is generally known as equivocation, and isn’t the kind of tactic used by people who value intellectual honesty.

    Lastly, the only problem I have with the sentence is that it asserts as fact that which really ought to be proved or disproved in a court of law. To assert the truth of that sentence for the purpose of political rhetoric in the absence of such proof is generally known as demagoguery, and not conducive to the promulgation of democracy. In other words, the problem I have with it is that it shows little regard for the truth in the place of stirring up public opinion in favor of some kind of revote. It stinks to high heaven, and, in my opinion, ranks as far worse, at least from a moral point of view, than anything that Republicans have alleged about King County’s conduct of this past election.

  48. 51

    spews:

    WASHINGTON GOP STILL FIGHTING FOR GOVERNORSHIP
    So CNN finally writes something about this story. . .
    OLYMPIA, Washington (AP) — Republicans dissatisfied with the balloting that installed Democrat Gov. Christine Gregoire alleged Tuesday that 1,108 felons voted illegally in the 2004 election.

    Di…