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Mid flight analysis:

I’m flying at 35,000 feet, halfway between Seattle and Philadelphia, but before takeoff, Andrew was kind enough to give me a lunch-break update from the Chelan County Courthouse. Apparently, Judge Bridges ordered the turkey club sandwich, but picked out the tomato. The Secretary of State’s lead attorney, Thomas Ahearn, had the chicken caesar salad, as did the Democrats’ Jenny Durkan (only with the dressing on the side.) Meanwhile the Republican legal team disappeared into a private conference room, only to emerge 30 minutes later, slightly disheveled and stinking of gin.

And oh yeah… the judge dismissed the 39 county auditors as defendants, while denying the Democrats’ motions on venue and jurisdiction.

Yawn.

I suppose it’s possible I’ll get to Philly, go online, and discover something dramatic happened. But I doubt it. Besides, it’s really all just foreplay until we get to the Supreme Court. (Not that I’m dissing foreplay.)

Speaking of which, I’m sure the cunning linguists over on the right-wing blogs have been wagging their tongues for hours now about Rossi’s stunning legal victory… whatever the ruling. But despite their best efforts to seduce voters with promises of a rock solid election, passion continues to steadily wane for their flaccid “re-vote” campaign.

[Editor’s note: No, I’m not drunk… I’ve had nothing but tea and water. I’m just bored. Really, really, really bored.]

In fact, this whole election contest has been kind of a tease, hasn’t it? We have hundreds of felons voting for Rossi. Hundreds more unverified provisional ballots most of which have now been verified. Military personnel denied the vote even though ballots were mailed out on time, and returned in numbers matching the general public.

But the biggest tease of all, is the allegation that they have irrefutable proof of a stolen election, when all they’ve really uncovered are the types and quantities of errors we expect to see in any election of 3 million ballots cast.

So that’s my post ruling analysis. Let’s see how it holds up once I land and see the actual rulings for myself….

Post flight analysis:

Okay. I’ll preface my postscript by reiterating that none of this really matters, because the final ruling will be made by the Supremes.

But… if this ruling did matter… then it wouldn’t be a very a good day for Dino Rossi. I think.

I haven’t seen the transcript, but according to David Postman in The Seattle Times, Judge Bridges’s ruling may have given a fatal blow to the Republican case:

But he ruled that Republicans must show any illegal votes were cast in favor of Gregoire, and not Republican candidate Dino Rossi. There would have to be enough illegal Gregoire votes to erase her 129-vote victory margin.

Bridges said that if Republicans did prove their case, he would not order a new election for governor as they want him to do. Rossi has said that was the only remedy he would accept.

Democrats had argued the judge didn’t have that power, and Bridges agreed. He said state law and the state constitution do not give him the power to order a new vote, which he called “special relief.”

Remember what I wrote about the court lacking “general equity jurisdiction” in an election contest for an executive office? Both these rulings (assuming this was the ruling) seem to support this interpretation. Essentially, the judge has said that he would hold the contest to the narrow confines of the statute. That is exactly what the Democrats wanted.

Anyway, I’m continuing to wade through the available reports, and will post a more detailed analysis tomorrow.

If you’re like me, then you’re starting to get all tense about the big upcoming event. No, I’m not talking about the results of the ongoing court hearing today in Chelan County… nothing important is likely to come out of that. I’m talking about this Sunday’s Super Bowl.

In fact, I’m heading off to Philadelphia today to join my family in watching our beloved Eagles win their first championship in my lifetime. Hoagies, soft pretzels, Tastykakes and Donovan McNabb. What a Sunday.

As to that other event, well, lawyers are still blabbing as I’m heading out the door. Whatever happens, good or bad, just remember that the election contest will ultimately be decided by the Supreme Court, so don’t get too excited.

While I’m in the air, I’ve given Andrew Villeneuve the honor of being HorsesAss.org’s first guest blogger. You may be familiar with his other work at Permanent Defense, NW Progressive Institute, and the new and incredibly useful Pacific NW Portal. If there is important news, Andrew will post it here, and then I’ll comment on it later tonight.

On Wednesday, the state House overwhelmingly passed HB 1064, a bill authorizing (and funding) the state auditor to conduct independent, comprehensive performance audits. The bill is enthusiastically supported by State Auditor Brian Sonntag, whose office issued a document summarizing the bill, and a statement that includes the following endorsement:

We’re happy and highly supportive of the bill, particularly after being out front

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United States officials were surprised and heartened today at the size of turnout in [the] election despite a … terrorist campaign to disrupt the voting.

According to reports…, 83 per cent of the 5.85 million registered voters cast their ballots yesterday. Many of them risked reprisals…

Iraq in 2005? No… that was a Vietnam in 1967, as reported nearly 40 years ago by the New York Times. (Thanks to the folks at Daily Kos for digging up this gem.)

The Bush administration didn’t settle on its reason for invading Iraq until well after the invasion. First it was Saddam’s close connection to Osama and 9/11 (there was no connection.) Then it was the imminent threat of “weapons of mass destruction” (we never found any.) Eventually, establishing democracy became the rhetorical centerpiece of Bush’s Iraq policy.

To argue that Bush didn’t lie to the nation and the world in selling this war, requires believing that our intelligence services were criminally incompetent, and the administration incoherent at best. Thousands of American soldiers and innocent Iraqis have died as a result.

Let’s hope that the Iraqi democracy fares better than Vietnam’s, and that some lasting good can come out of the death and destruction our tax dollars have reigned down on the region.

Social Security in crisis… blah, blah, blah. Culture of life… blah, blah, blah. Marriage between a man and a woman… blah, blah, blah. Democratic Iraq… blah, blah, blah.

Oh well. Let’s just use this as an opportunity to continue our discussion of his dumb-ass, dishonest Social Security proposal. (I’m sorry, does that sound like I’m prejudging it?) This from the New York Times:

Mr. Bush skirted the issue of paying for the establishment of the accounts. That process, by the White House’s calculation, would require more than $750 billion in additional government borrowing between now and 2015, and trillions of dollars of additional borrowing in the subsequent decade once the system is fully up and running, analysts said.

By the way, I heard David Brooks talking on Nightline last night, saying that Republicans support privatization because they believe that by forcing more Americans to invest in the stock market, they will create more Republicans. That’s sound economic policy, huh?

UPDATE:
And while we’re at it, let’s bring Paul Krugman back into the discussion:

The Social Security projections that say the trust fund will be exhausted by 2042 assume that economic growth will slow as baby boomers leave the work force. The actuaries predict that economic growth, which averaged 3.4 percent per year over the past 75 years, will average only 1.9 percent over the next 75 years.

In the long run, profits grow at the same rate as the economy. So to get that 6.5 percent rate of return, stock prices would have to keep rising faster than profits, decade after decade.

Krugman explains that for stocks to yield the 6.5 percent rate of return projected by the privateers, the average price-earnings ratio would have to rise to over 100 by 2060. (The historic average is 14, today it’s about 20.) This creates a Catch-22:

They can rescue their happy vision for stock returns by claiming that the Social Security actuaries are vastly underestimating future economic growth. But in that case, we don’t need to worry about Social Security’s future: If the economy grows fast enough to generate a rate of return that makes privatization work, it will also yield a bonanza of payroll tax revenue that will keep the current system sound for generations to come.

Alternatively, privatizers can unhappily admit that future stock returns will be much lower than they have been claiming. But without those high returns, the arithmetic of their schemes collapses.

It really is that stark: Any growth projection that would permit the stock returns the privatizers need to make their schemes work would put Social Security solidly in the black.

Man… Bushies must hate Krugman.

From the AP via The News Tribune (with an original tip from Carl at the Washington State Political Report):

Maverick Republican Rep. Tom Campbell bolted the state House GOP caucus on Tuesday after clashing with his new caucus leadership.

Campbell, a senior lawmaker serving his fifth term from the 2nd District in Pierce County, said he isn’t switching parties, but will be his own caucus of one.

Campbell said he has grown increasingly unhappy with his caucus’ “cozy relationship” with the insurance and pharmacy industries and was infuriated when he was dumped from the House Health Care Committee.
….
“My life is health care. I don’t want to be president or governor or anything else. I want to work on health care legislation and really make a difference for people.”

The most senior member on the Health Care Committee from either party, Campbell has been added back on to the committee by House Speaker Frank Chopp (D-Seattle), something Chopp couldn’t do while Campbell was part of the GOP caucus.

Why did the GOP leadership knock Campbell off the committee he was most passionate about? Campbell says he supported Richard Debolt (R-Chehalis) for minority leader, who narrowly lost to Bruce Chandler (R-Granger). The snub was apparent payback for this, and Campbell’s history of sometimes siding with Democrats on tax and budget issues.

The ever informative blog OlyScoop explores an interesting twist to this story. It points out that the House GOP had previously told reporters that Chandler’s election as minority leader was unanimous, but now it is revealed to have been closely contested.

OlyScoop euphemistically calls this “coloring the facts.” I just pulled out my dictionary, and it appears to be a lie.

In my opinion, the main difference between Democrats and Republicans is that Democrats actually believe in government. We believe that government can and does play a positive, essential role in improving the standard of living and quality of life for all Americans. Republicans… not so much.

For weeks, I’ve been working on and off on essay elaborating on this thesis. But this ain’t it. Today I’m going to put forth an alternative thesis, which quite simply states that Democrats tend to be more, well… democratic.

Take for example the political controversy brewing in Georgia, where Republicans have taken total control of the Legislature for the first time since Reconstruction. Not satisfied with the usual majority control of committees, the newly elected Republican Speaker has pushed through unprecedented rules that allow him to appoint “hawks” that may vote in any committee, at any time, on any piece of legislation… at the sole discretion of the Speaker.

You can learn more about it at: NoHawks.com (Thanks to Dan for pointing me towards this site.)

I guess this is what President Bush meant when he joked, “If this were a dictatorship, it would be a heck of a lot easier, just so long as I’m the dictator.” Or was he joking?

For that is essentially what the Georgia Chancellor Speaker has devised… a dictatorship in which he personally gets to choose which legislation gets out of which committee in what form… without even having to go through the messy process of convincing members of his own party.

As Dan noted in his email to me… I betcha dictator-wannabe Tom DeLay is jealous as hell that he didn’t think of this one.

Stefan Sharkansky is an arrogant prick.

Now, I don’t say that because I think it somehow raises the level of political discourse, or out of an attempt to refute his arguments, or even as a gesture meant to personally offend him. I say it, because it makes me feel good.

And, because it is true.

Take for example his prickishly arrogant attack on Rep. Jeannie Darneille (D-27) for an email she sent to constituents. In his typically measured, analytical style, Stefan opines:

I don’t say it lightly that her reasons for opposing a revote would have to be the stupidest thing I have ever seen come out of the office of any elected official. If Rep. Darneille is not an imbecile herself, then she would have to believe that her constituents are all imbeciles if she thinks this e-mail is not going to cause severe and permanent damage to her reputation in the district.

This in response to Rep. Darneille writing about the recent death of her father.

Wow. What a prick!

And it’s not just Stefan’s stunning lack of empathy that bothers me, it’s his arrogantly prickish dismissal of Rep. Darneille’s reasonable and well-thought-out opposition to a “re-vote.” While she backs up her rationale with personal anecdotes, her logic is sound:

It will be impossible to recreate the confluence of situations that existed on November 2nd. A re-vote could, in fact, never exist… it would be a new vote. The premise that “every vote should be counted and every vote should count” will never exist again.

That is exactly the point I made a couple weeks ago. We’re talking about an entirely new election… new year, new campaign, new voters, new issues… and as has been pointed out to me, possibly… new candidates.

Annulling the election will merely vacate the governor’s office, putting Lt. Gov. Brad Owen in charge until a special election is held, possibly not until next November, or even, November of 2006. At that time, Owen might choose to run for governor, as might any number of major and third party candidates. In the meanwhile, tens of thousands of voters will be added and stricken from the rolls. There will be absolutely nothing “re” about this vote.

But does Stefan bother to address these issues or refute Rep. Darneille’s own arguments? Nah… he just calls her an imbecile, and arrogantly threatens electoral retribution. You know why? Because… he’s a prick!

Yes, Stefan’s the kind of arrogant prick who’s not above a shamelessly racist smear (“ King County Executive Ron Sims, the Robert Mugabe of Washington politics“)… or of repeatedly referring to our governor as “Christine Fraudoire” without ever once alleging a single act of fraud on the part of her or her campaign.

This is a guy who gloats about getting a protester arrested after provoking him into smashing his $10.00 disposable camera.

Stefan is a mean-spirited, intellectually dishonest, rhetorical-schoolyard bully… kind of like a short, ugly Tim Eyman. Only smart. And that is what is most unforgivable, for unlike Tim, every statistic he distorts, every lie he tells, every reputation he disparages… Stefan knows exactly what he is doing.

He is, in short… a prick.

Now some of you may find the tone and content of this essay a bit shocking, for I have recently made an effort to shift some of the focus of this blog from partisan invective to a more thoughtful — if equally partisan — discussion of the issues. I can be pretty damn devious, and I certainly could choose to engage the other side in their fanciful number crunching and vicious slander… but when I look in the mirror, I don’t want to see Stefan Sharkansky staring back out at me.

The truth is, the sort of personal name-calling I choose to match Stefan with today, achieves absolutely nothing except riling up those who already agree with you. I want to change minds, not pander to them.

But hell if I’m going to shy away from calling a prick, “a prick” — and when you arrogantly ridicule an elected official for talking about her dead father — that’s exactly what you are.

So call me arrogant, if that’s what you want. Or call me a prick, or even a horse’s ass.

Just don’t call me a Stefan.

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.

Oregon State Rep. Dan Doyle — “the champion of the fiscally conservative, no-new-taxes wing of the House GOP caucus” — resigned today after pleading no contest to theft for listing his wife on his health insurance forms before they were married. (Domestic Partnership benefits, anybody?)

But I was particularly amused by the following statement from the AP article:

Doyle becomes the first lawmaker to resign because of legal troubles since former state Rep. John Mabrey, R-The Dalles, left the Legislature last May.

Wow… what a streak! Oregon Republicans managed to go eight whole months without one of their own being forced to resign due to legal troubles!

Congratulations Oregon GOP!

Correction:
It was Mabry who listed his wife on his health care forms, Doyle diverted campaign funds for personal use. Thanks to Richard for pointing out my mistake.

I spend an awful lot of time browsing the websites of dozens of Northwest blogs and newspapers. Now there’s a new website that’s trying to make life a little easier for us news-junky progressives.

Pacific NW Portal recently went live aggregating news and commentary from Washington, Oregon and Idaho… including yours truly. It’s not perfect, and a little busy (and it has some problems with my old version of Safari,) but it’s a great start. I’m certainly going to add it to my personal rounds.

This afternoon I attended the Call to Action Forum presented by the Progressive Democratic Caucuses of the 46th Legislative District.

Wow.

The turnout was amazing. Even though Rep. Jim McDermott was a featured speaker, I didn’t really expect more than 100 people. There must have been at least 500. The audience overflowed out of the main auditorium at the Labor Temple, into adjoining rooms where they could watch on closed-circuit TV.

Anybody who thinks progressives had their morale destroyed by the November election, think again. Today I saw the same kind of energy and dedication that I marveled at during last spring’s caucuses. I have been too immersed in my own battles to have the luxury of feeling confident about our nation’s future. Today I felt confident.

The audience was rewarded by a surprise visit from Rep. Dennis Kucinich, who followed up McDermott’s talk on the Bush administration’s proposed privatization of Social Security, with his own informative presentation on the subject. Opposing Republican efforts to dismantle our nation’s most important social safety net should be the overwhelming focus of Democrats in Congress. After hearing both McDermott and Kucinich put forth such a concise and powerful message, I have renewed hope that Democrats can block Bush’s destructive legislative agenda.

In his discussion, McDermott pointed the audience towards a column by economist Paul Krugman in the New York Times: “Little Black Lies.” In it, Krugman accuses Bush of shamelessly using the “the race card” when claiming that African-American males get a bad deal from Social Security because their life-expectancy is so much shorter than whites. According to Krugman, this not only exploits “the tragedy of high black mortality for political gain instead of treating it as a problem we should solve,” it is also an out-and-out lie.

Here’s why. First, Mr. Bush’s remarks on African-Americans perpetuate a crude misunderstanding about what life expectancy means. It’s true that the current life expectancy for black males at birth is only 68.8 years – but that doesn’t mean that a black man who has worked all his life can expect to die after collecting only a few years’ worth of Social Security benefits. Blacks’ low life expectancy is largely due to high death rates in childhood and young adulthood. African-American men who make it to age 65 can expect to live, and collect benefits, for an additional 14.6 years – not that far short of the 16.6-year figure for white men.

Second, the formula determining Social Security benefits is progressive: it provides more benefits, as a percentage of earnings, to low-income workers than to high-income workers. Since African-Americans are paid much less, on average, than whites, this works to their advantage.

Finally, Social Security isn’t just a retirement program; it’s also a disability insurance program. And blacks are much more likely than whites to receive disability benefits.

Put it all together, and the deal African-Americans get from Social Security turns out, according to various calculations, to be either about the same as that for whites or somewhat better. Hispanics, by the way, clearly do better than either.

Of course, this is exactly the kind of fundamental dishonesty we’ve come to expect from the right when they can’t back up their agenda with the truth. And the truth is, the Bush administration will do or say anything in their effort to dismantle the greatest legacy of the New Deal.

UPDATE:
From The Washington Post (via The Seattle Times):

The congressional Republicans’ confidential plan was developed with the advice of pollsters, marketing experts and communication consultants, and was provided to The Washington Post by a Republican official. The blueprint urges lawmakers to promote the “personalization” of Social Security, suggesting ownership and control, rather than “privatization,” which “connotes the total corporate takeover of Social Security.”

Yes… when proposing legislation designed to dramatically unravel our nation’s most basic social safety net, it’s not economists the Rovians rely on, but rather the “pollsters, marketing experts and communication consultants.”

“Personalization” my ass.

In the final segment of what has turned into a three-part series on the legal basis of the election contest, I now turn to the election statute itself.

The GOP petition claims the court has jurisdiction to set aside a gubernatorial election “pursuant to RCW 29A.68.011 et seq., and the court’s plenary powers.” Yesterday I suggested that the irregularities alleged thus far do not constitute the “gross violations” necessary for the court to nullify the election under its general equity jurisdiction. Today I’d like to briefly discuss the statute itself, and how the various allegations might fit into a decision.

The GOP clearly relies on Foulkes v. Hays for precedents, a 1975 case in which an Adams County commissioner’s race was set aside due to ballot tampering. The following excerpt provides the heart of the Rossi camp’s arguments. (Please note that RCW 29.65.010 is now RCW 29A.68.020, and RCW 29.04.030 is now RCW 29A.68.011.)

[2] Here the trial court correctly ruled that RCW 29.65.010 did not apply to respondent Foulkes’ claim. The only subsection of that section which is claimed to be applicable is subsection (5), which allows contests to be brought on the basis of “illegal votes.” But, as the trial court held, the term “illegal votes” has been held to refer not to fraudulently altered ballots, but to votes “cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law.” … Such a limited interpretation of this phrase here is especially appropriate in light of RCW 29.65.090 , which requires a person alleging illegal voting in a statutory election contest to provide the court with the names of those who cast them. In a situation such as the trial court found existed here, it might be impossible to show by whom the ballots were altered, though it is proven that the alteration took place. To impose a requirement that an election contestant produce a “smoking gun” to obtain relief in such circumstances would deprive him of relief despite the clear merits of his claim that the election was invalid. RCW 29.65.010 therefore did not apply, and the trial court correctly proceeded under the alternative authority provided it by RCW 29.04.030 .

Essentially, we have two kinds of allegations: illegal votes, and other irregularities. Illegal votes in this case most likely consist of those cast by felons or on behalf of dead people, and those cast by people who voted twice. The disputed provisional ballots are not illegal; they were “cast in the manner provided by law” but improperly canvassed. None of the other alleged irregularities — enhanced ballots, disenfranchised military voters, voter roll discrepancies — can rightly be considered illegal votes.

As defined in RCW 29A.68.020, illegal votes will be considered under the standard set forth in RCW 29A.68.110:

No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.

Except for the phrase “unless it appears” there is nothing ambiguous about this statute. Contrary to the oft repeated GOP mantra that all they need to do is prove 129 illegal votes, it is clear that they must at least show the appearance that these votes benefited Gregoire over Rossi in numbers sufficient to have changed the outcome. Fat chance. It will be amusing, if the GOP has the balls to issue subpoenas, to see how many felons actually voted for Rossi.

But the bulk of the GOP’s allegations regard the other irregularities. The question remains… what is the standard for evaluating the impact of these irregularities, and what are the available remedies.

Rossi supporters take solace from Foulkes, where the court ruled that the altered ballots were not “illegal” as defined by statute, but rather, fraud that resulted from neglect. Since RCW 29.65.010 could not apply, the Supremes upheld the lower court’s decision to rely on RCW 29.04.030 (now RCW 29A.68.011.) Indeed, Foulkes apparently set aside the election based on this statute. But Foulkes is not the last word in court decisions.

In seeking to prove that the courts have jurisdiction over contests for statewide office, the GOP petition also cites a more recent 1995 case, Becker v. Pierce County. This decision also discusses RCW 29.04.030, and curiously concludes:

Finally, if Becker were limiting her claim for relief to that provided by RCW 29.04.030(4) alone, invalidation of the election, the relief she seeks, is not a possible result. Under that statute, the only relief that a court may afford is to order that the offending person “forthwith correct the error, desist from the wrongful act, or perform the [neglected] duty and to do as the court orders”.

This appears to directly contradict the Foulkes decision.

So, does the contest statute address the types of irregularities alleged by the GOP? Well, if you accept that an error implies “neglect,” and that neglect implies “misconduct,” then RCW 29A.68.070 clearly comes into play:

No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal vote.

Read it any way you want, but it seems clear to me that the standard for annulling an election due to “irregularities” is awfully similar to the standard for “illegal votes.” Indeed Foulkes, actually sets a very high standard. The evidentiary findings concluded that failure to properly secure ballots constituted neglect, that this neglect resulted in ballots being fraudulently altered, and that these ballots were altered “such as to procure” the election for the appellant.

I just don’t see how Rossi meets these standards, for while he certainly might prove neglect, there is no evidence that such neglect resulted in fraud or served to procure the election for Gregoire.

Military ballots were sent out on time, and returned and counted in percentages consistent with overall voter turnout. Ballots were enhanced consistent with WAC 434-261-080, and there is no evidence the process favored Gregoire. Provisional ballots were improperly scanned at polling places throughout the state, and the vast majority would have been legally counted anyway. And the “discrepancy” between the voter list and the number of ballots cast is not evidence of fraudulent votes, but at worst, the lack of evidence to the contrary.

Based on the evidence presented thus far, this election and that in Foulkes have very little in common, and thus little if any precedent can be drawn from the prior case. Rossi’s case does not meet the high standards of that in Foulkes, nor those required for setting aside an election under the cited statutes. Furthermore, Rossi’s appeal to the “plenary powers” of the court is undermined by his reliance on a contest statute that clearly anticipates such irregularities as those alleged, and clearly states that annulling an election is not an appropriate remedy unless it can be shown that these irregularities changed the outcome.

But, much to my mother’s chagrin, I’m not an attorney. So what do I know?

In my previous post I suggested that Rossi’s attorneys would attempt to convince the court to reach outside the confines of the contest statute. Indeed, the GOP petition requests relief in the form of setting aside the election, and claims the court has jurisdiction “pursuant to RCW 29A.68.011 et seq., and the court’s plenary powers,” (it’s the “plenary” part I was referring to.)

The GOP clearly relies on Foulkes v. Hays for precedence, a case in which an Adams County commissioner’s race was set aside due to ballot tampering. Ignoring the Democrat’s argument that the contest statutes do not apply to statewide offices, the Foulkes decision clearly states that the court has jurisdiction over election contests in general.

[1] Appellant’s most basic challenge is to the power of courts to inquire into the conduct of elections and order new elections to correct improprieties therein under RCW 29.04.030 .

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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.