With no court proceedings scheduled in the election contest, I expect that both sides are now hunkering down, gathering data, and sorting through the evidence. So I asked HA’s expert legal analyst, Lawyer X, for his take on what we can expect in the coming weeks.
I expect the “discrepancies” will begin to fade out of the discourse as the analysis of the “big binder” comes into vogue since everyone knows that the crediting of voters is not particularly relevant to anything.
Well X… not everyone knows. Those who rely on partisan bloggers (or the voices in their head) for their election contest news, haven’t quite figured that one out yet. But I digress….
We don’t know what the real situation was yet in terms of proper ballot handling on election night but the big binder analysis will give a more accurate picture than any credit analysis. But even if the “big binder” shows the possibility of more provisional ballots being accidentally fed into ballot boxes than the 348 that have been alleged in the press, the overwhelming majority of those additional ballots will be from registered voters and be valid votes. Bottom line, there will likely not be much effect from provisional ballots, even if the GOP is allowed to use proportional analysis of the invalid provisionals.
Hmmm… “proportional analysis.” We’ll get back to that in a moment, but first I want to make a couple clarifications about the provisional ballots.
Some have questioned how King County was able to account for 341 of the 348 provisional ballots known to have been improperly scanned at the polling place. The answer is rather simple. Upon receiving a provisional ballot, the voter signed in the back of the poll book. So… those voters who signed for provisional ballots, but for whom envelopes where not received, are assumed to have improperly scanned their ballots at the polling place. Of these, 252 were later verified to have cast valid ballots.
As Lawyer X notes, it is possible that an exhaustive examination of the binder and the poll books could find more improperly scanned provisional ballots, but the majority of these would likely be verified as valid too. You’re not hearing much about provisional ballots these days, because there really isn’t that much to talk about.
The Rossi team’s main focus has been on the “felon vote,” an issue that plays well with the home crowd, and is quite frankly, the only place they’re likely to find a substantial number of clearly illegal votes. We don’t yet know what the actual number really is, but given the GOP’s history of inflated claims, it is probably somewhat less than the 1100 originally touted.
Rossi’s attorneys and spokespeople continue to hold to their stance that we can’t trust a felon to tell us how he voted. And with good reason — an attorney should never ask a witness a question to which he doesn’t already know the answer. Plus, the felons are not likely to give Rossi’s attorneys the answers they want.
That’s why they’ve pinned their hopes on the dubious prospect of the court accepting a proportional analysis. Rossi’s only chance of prevailing is to prove enough illegal votes and errors in heavily Democratic King County, so that Gregoire’s extrapolated margin of victory in these disputed ballots is greater than her actual margin statewide.
But as Lawyer X explains, the felon vote is not that simple.
If the “felon vote” turns out to be factually based, I would expect the ratio of men to women in that pool of voters to be 3 to 1 or so. As a result, it is not representative of any county’s voting population. There is no reason to expect it to vote in proportions similar to the rest of the population and I doubt proportions could be used to any particular benefit for the GOP after any reasonable adjustments are made for the gender bias. Frankly, I expect the GOP is still looking for enough votes to prove their case even under a proportion theory.
(Suggestion: if you cast an illegal vote in King County, and you suddenly receive a check from the BIAW… don’t cash it.)
Personally, I can’t imagine the court wanting to get into proportional analysis unless the numbers are just absolutely overwhelming. At the evidentiary hearings, the judge will surely be treated to dueling demographers wielding statistical analyses so obtuse, they’ll make Stefan’s spreadsheet look like, well… Stefan’s spreadsheet.
But even if the court were to accept a proportional analysis, Lawyer X suggests Rossi’s evidentiary hurdle may be a little higher than his cheerleaders imagine.
One other thing to keep in mind, as an academic point, anyway: even if the Court were to allow the GOP to use proportions, that would only apply to those voters for whom no other information was available. To the extent that voters do disclose how they voted, that disclosure will prevail over any guess based on proportions. In that context, there may be a lot of work remaining for both sides to do before the case is ready to move on. Based on newspapers reports of how people voted, I would say Rossi is more than 129 votes behind at this point.
That’s right… Gregoire could actually come out of the evidentiary hearings having expanded her margin. If the Democrats start deposing felons who voted for Rossi, the GOP will have to match them by deposing felons who voted for Gregoire. Thus despite Rossi’s protestations that felons can’t be trusted to reveal their vote, I wouldn’t be surprised if both sides are already hard at work, quietly deposing felons.
Of course, all this is speculation. But then, Rossi’s attorneys have built their entire case on speculation, so why should I be any more intellectually rigorous than them?