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TorridJoe and Carla over at AlsoAlso and PreemptiveKarma respectively, have published the first part of a joint critique of the work of (un)Sound Politic’s prickly, right-wing numerologist, Stefan Sharkansky: “Fisking Sharkansky“.

To sum it up quickly, the Snark’s “definitive analysis” proves definitely wanting.

By Sharkansky’s own admissions, he struggled to create a file that he believed would match what King worked with to reconcile their data. But his struggle was futile from the start, which he must have known: King didn’t reconcile their data at the precinct level, they did it voter by voter, pollbook line by pollbook line. How can you claim you’ve done the definitive analysis, when you don’t even have the right file defined? We don’t think you can.

Sounds reminiscent of my statistical pissing match with Stefan over his claim that a several hundred vote victory by Gregoire in the hand recount, would still leave Rossi the statistical winner, based on plotting the first two counts. As we say in the software biz: garbage in, garbage out.

Carla and TJ hope “ignorance is the excuse” for Snark’s own irregularities, but I’m not so charitable. I think Snark’s a smart guy. And thus he knows he’s misleading his readers.

I look forward to reading their follow-up.

Forgive me for being impolitic, but the whole “felon vote” thing… it’s really little more than a technicality.

I base this statement on the following theses: A) if Rossi can’t prove these votes went to Gregoire, they’ll have no impact on his contest, B) there really weren’t all that many felons voting illegally, and C) who the hell cares?

My guess is the vast majority of felons who voted illegally did so unwittingly… after all, why risk going back to jail just to cast a ballot? Plus, many of these disenfranchised felons could have had their voting rights restored if only they went through the confusing process of filing the paperwork.

Yes, I know… the law is the law, and ignorance of it is no excuse. But the same can be said of the contest statute, which clearly states that Rossi must show that illegal votes went to Gregoire in order to set aside the election, a burden of proof his lawyers have argued they cannot meet. Indeed, of the six felons who have revealed their ballots in press accounts I’ve seen, five voted for Rossi, and one for Bennett.

Republicans claim that over 400 convicted felons voted illegally statewide, though the number is probably much smaller. For example, of the 64 names provided to Snohomish County elections officials by the BIAW, only 18 have been found to have voted illegally. And GOP efforts to use the felon vote as evidence of incompetence on the part of county officials ignores the fact that tracking these felons is impossible without a central, statewide database.

But while we argue over how many felons voted, who they voted for, and who is to blame, we fail to ask ourselves the most important question: So what? As The New York Times points out in a plainly titled editorial today (“Why Felons Deserve the Right to Vote“), none other than the American Correctional Association (ACA) has called for ending the practice of withholding voting rights from parolees and people who have completed their prison terms.

These laws serve no correctional purpose – and may actually contribute to recidivism by keeping ex-offenders and their families disengaged from the civic mainstream. This notion is clearly supported by data showing that former offenders who vote are less likely to return to jail. This lesson has long since been absorbed by democracies abroad, some valuing the franchise so much that they take ballot boxes right to the prisons.

The GOP’s emphasis on the felon vote has always been more of a moralistic PR argument than a legal one… a cynical attempt to insinuate that felons overwhelmingly vote for Democrats. That they have absolutely no evidence to back up their thesis (indeed, the anecdotal evidence suggests the contrary), does not seem to dissuade them from contending that these votes alone are enough to call the election results into question.

But that’s not the point.

According to the ACLU, 3.7 percent of otherwise eligible Washington voters are disqualified due to felony convictions, roughly twice the national average. And this policy of disenfranchisement disproportionately impacts minorities, with an estimated 25% of black males disqualified.

And for what?

State Sen. Pam Roach proposes routinely purging the voter rolls in an attempt to make it more difficult for felons to vote. But this would surely disenfranchise tens of thousands of eligible voters, if through nothing but inconvenience alone.

Rather than making it more difficult for everybody to vote, it is time to follow the advice of the ACA and ACLU and others, and automatically restore voting rights to felons upon their release from prison. If we want these people to productively contribute to our Democracy, we need to make them part of it.

It was a close game. There were some disputed calls. But I concede. The Patriots won the Super Bowl, and while my beloved Eagles came closer than anyone expected, we’ll just have to wait until next year.

I’m not going to ask for a recount or a replay or a re-anything… I accept the decision of the officials as final. Even though the Eagles won the first 5:05 minutes of the game, and were tied until 1:16 minutes into the 4th quarter, I understand that only the final score counts.

There is little doubt that if we closely examine the video tapes, we will find that the officials made many mistakes… so many perhaps, that these “irregularities” may have changed the outcome of the game. But I refuse to let my deep disappointment cloud my reason, and despite the fact that I continue to believe that Donovan McNabb is the better quarterback, I accept that Tom Brady has legitimately won the Super Bowl.

And so with heavy heart I congratulate the Patriots, move on, and look forward to the next election season.

The funniest thing about political blogging is that people actually take us seriously. Especially us partisan flame-throwers. Accuse a sitting governor of being a thief and a fraud — or call somebody a prick from time to time — and people pay attention.

To show you how silly it all is, I’m going to turn from political punditry and exercise a bit of sports punditry. Anybody can do it, so why not me?

Goldy’s 5 Keys to the Superbowl

1. Special teams – It takes a really special team to win the Super Bowl.

2. Score in the “red zone” – Most teams just score in the end zone; if you can score in the red zone, you shorten the field by twenty yards.

3. Turnovers – A little known factor in New England’s victory over Pittsburgh in the AFC Championship game was when Ben Roethlisberger severely burnt his throwing hand eating a hot apple turnover during the pre-game meal. Both Donovan McNabb and Tom Brady must be disciplined, and stick to cold cuts.

4. Control the clock – The team that controls the clock can pretty much end the game the second they’re ahead.

And finally, the “Key to the Superbowl” most overlooked by sports pundits:

5. Score more points than the other team – Need I say more?

And my bold, partisan prediction? Eagles 27, Patriots 17.

(Fly Eagles, Fly)

David Postman of The Seattle Times had originally reported that Judge Bridges ruled that in order to set aside the election, Republicans must show that illegal votes were cast for Gregoire over Rossi in numbers sufficient to erase the 129-vote margin. But in the updated article that appears in today’s paper, he seems to have somewhat backed away, instead leaving it to interpretation:

Bridges said that at least at this point in the case, it is “sufficient to state generally” that there are enough illegal votes to cast doubt on the true outcome of the election.

But the judge cited a 1912 state Supreme Court case often mentioned by Democrats. In that case, the court found that if it is unknown which candidate received an illegal vote, “it must be treated as a legitimate vote.”

Bridges also said it “may be problematical for petitioners to ultimately prevail on a theory or a cause of illegal votes.”

Not having watched the hearing myself, and not having a transcript available, I asked Lawyer X for his interpretation, and what this meant for the Democrats.

It was a substantial victory and he did so rule. He referred to Foulkes a number of times during the decisions in terms of whether their allegations stated a cause for contest but he viewed his ability to set aside an election as limited to circumstances in which Rossi first proved that Rossi won the vote.

I think what a lot of people are missing is the statutory distinction between the grounds for proceeding with an election contest, and the grounds for setting one aside. The statute clearly states that to bring a contest it is merely sufficient to show that there were enough illegal votes to have changed the outcome. But the statute is equally clear that a higher standard must be reached in order to set aside an election: it must appear that the irregularities actually changed the outcome.

According to The News Tribune, Judge Bridges specifically said “I’m not ruling on burden of proof,” though it certainly sounds to me like he’s leaning towards a narrow interpretation of the statutory standard. But what seems absolutely clear is that his rulings cannot be understood at this time as supporting the Republican position that they need merely prove the margin of error is greater than the margin of victory in order to prevail.

The blogosphere, the MSM, and even the Republican and Democratic attorneys are also arguing over the practical result of Judge Bridges’ ruling that he did not have the power to order a new election. Democrats contend this means the only remedy available would be to declare Rossi the winner, while Republicans say the judge could still set aside the election, and leave it to the Legislature to order a special election. Judge Bridges seemed to interpret the state Constitution as saying the soonest a special election could be held is November of 2006, leaving Lt. Gov. Brad Owen to serve in the meanwhile.

This should be a huge PR blow to Rossi’s disingenuous “re-vote” campaign, as the judge clearly stated that he could not order a new election. What seems to have gone over everybody’s heads is what this ruling means in terms of the precedent set by Foulkes v. Hays.

In Foulkes, the Supreme Court cited its “general equity jurisdiction” in upholding the lower court’s decision to order a new election:

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.

The Republicans have heavily relied on Foulkes to provide the precedent for setting aside an election on the basis of irregularities alone, but in ruling that he does not have the power to order a new election, Judge Bridges clearly indicates that, at least on this one major point, Foulkes does not apply. Whether this lack of general equity jurisdiction is limited only to this remedy (due to constitutional restrictions on when gubernatorial elections can be held), or more broadly to the burden proof, remains to be seen. But his comment that it may be “problematic” for Rossi to prevail, suggests the latter.

Indeed, Judge Bridges seems to keenly grasp that the Legislature has pragmatically set a very high bar for overturning elections.

He said it is clear that a lot more election contests have been rejected than have succeeded because there are well-accepted reasons why elections should not be overturned.

“Do we as voters and as constituents and candidates want to engage in what one judge referred to as seasons of discontent commencing the moment after the polls closed on election day?” Bridges asked.

As I have previously suggested, the answer is implicit in our election statutes, which clearly prefer finality over certainty.

Listening to Rossi spokes-shill Mary Lane, you’d think Republicans were the big winners yesterday. But just like in the election, where winning two out of three means nothing when it’s the third count that’s final, it doesn’t matter how many rulings went the GOP’s way yesterday, when the most important one apparently went to the Democrats. If the judge subscribes to the Democrats’ argument that the statute must be narrowly interpreted, then Rossi’s burden of proof is more than just “problematic”… it is nearly impossible given the types of irregularities uncovered thus far.

My guess is, if either party is going to appeal the judge’s rulings, it’s the Republicans.

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.