HorsesAss.Org

The other day I blogged on Republicans’ misplaced enthusiasm in a recent Rasmussen Poll, by suggesting that in the wake of an unprecedented post-election PR campaign, the numbers really weren’t all that bad for Governor Gregoire and the state Democrats. (“Crow all you want, eat all you crow.”)

I had failed to find an earlier poll to use as reference point, but apparently I didn’t try hard enough. A helpful reader has pointed me towards a five-week-old poll, and the trends should definitely give Rossi’s political strategists some pause.

The poll was conducted January 24-26 by Republican pollsters Strategic Vision. Compare its results to those of Rasmussen’s February 22 poll, and it clearly looks like any advantages Dino Rossi may have gained from his coordinated propaganda campaign are fading fast.

          Favorable Ratings
               Jan. 24-26     Feb. 22
 Rossi          50%            55%
 Gregoire       38%            50%

     Who really won the election?
               Jan. 24-26     Feb. 22
 Rossi          53%            44%
 Gregoire       37%            42%
 Undecided      10%            15%

Of course, these polls have a substantial margin of error, and are for the most part, complete and utter bullshit. But if the Rs were hoping to see some sort of permanent lift from trashing the electoral process, they’re not seeing it here.

An even less scientific, but more dramatic, indicator of the public’s flagging interest in this interminable election contest, is the substantial drop in traffic to right-wing blog (un)Sound Politics. Many of the unsubstantiated allegations echoed by the Rossi camp, originally slithered out of (u)SP’s primordial soup of rumor and innuendo. While their site statistics remain impressive, their average daily visits are off by 60% from the post-election high. (By comparison, HA continues to trend upwards.)

All this suggests to me that interest in the election dispute continues to fade, along with the outrage. We all know Rossi is losing the battle in the courts… now it appears he may be losing the battle in the court of public opinion as well.

I’ve been real, real busy, so here’s a digest of highlights from some other worthy local blogs (in alphabetical order):

blatherWatch
Hear any lies today? blatherWatch needs your help:

If you hear a dubious fact, a sleazy assumption, an outrageous non-sequitur, a wild conclusive leap, or an out-and-out whopper by host or caller; a lefty or righty on Seattle talk stations–drop us an e-mail.

Here’s a lie, Michael… Sharkansky called me “sweet.”

Speaking of which, why not take a gander at blatherWatch’s account of my non-showdown with the toothless Shark on the John Carlson Show. Michael sucks up to me a little, but that’s okay, I enjoy being sucked up to once in a while.

Evergreen Politics
Jon Stahl and Jeff Reifman dig into Bill Gates’ recent education speech and are shocked to find hypocrisy coming from the richest man in the world, when it comes to funding for education.

Microsoft takes advantage of huge corporate tax loopholes to dodge paying its fair share of the taxes that fund our public education system.

So, whatever Bill’s ideas for fixing our high schools might be (and they could no doubt use some fixing), I suggest he start by looking at the behaviors of his own corporation that have contributed to the problem.

That said, I just want to point out that his father, Bill Gates Sr., is one of WA’s most passionate and eloquent proponents of a state income tax, a change that would largely correct our obscenely regressive state and local tax structure, while costing him and his son butt-loads of money.

NW Progressive Inst. Blog
While I’m digesting the other blogs, NPI is digesting a bunch of interesting articles and columns in Monday’s Seattle P-I.

OlyScoop

Only 18 percent of proposed legislation actually becomes law, I read in a report last year. Whew! Thank goodness.

As always, OlyScoop is one the best places to learn about the other 82 percent.

On The Road To 2008
Daniel Kirkdorfer considers a recent Harris poll, and wonders if we’re a nation of idiots:

– 47% of adolts believe that Saddam Hussein helped plan and support the hijackers who attacked the U.S. on September 11, 2001.
– 44% of adolts believe that several of the hijackers who attacked the U.S. on September 11 were Iraqis.
– 36% of adolts believe that Iraq had weapons of mass destruction when the U.S. invaded.

Progressive Majority for WA
I apologize for calling Stefan a “prick.” I clearly should have included the BIAW as well. Stefan called Rep. Jeannie Darneille (D-Tacoma) an “imbecile” for mentioning the recent death of her father in an email explaining her opposition to a “re-vote.” But the BIAW stoops even lower, by trying to squeeze partisan advantage out of her personal tragedy.

Darneille Sr. had a 60-year history of voting and in recent years had done so absentee. The BIAW found a Charles Darneille had signed the poll voter sheet, however, and suspecting a scandal ripe for exploitation, fired off a public records request to the Pierce County auditor, demanding to know how an absentee voter who died the day after the election could have signed the poll voter sheet. I’m sure the PR hacks in the Republican party were slavering with glee over this apparent example of democratic cronyism and ballot-stuffing.

Turns out, there were two Charles Darneilles. What a bunch of pricks.

Pacific Northwest Portal is only a few weeks old and has already become one of the most bookmarked websites for regional progressives. Today it launches a revamped home page, expanded Blogs and Websites Directory, and other new features.

This a great way to keep an eye on dozens of progressive blogs; please check it out if you haven’t already.

I was going to comment on yesterday’s article in the San Francisco Chronicle on the accuracy of elections (“The vote you cast may not be tallied, 1 out of 100 shown uncounted in 2004“), but I don’t really have much more to add than TJ’s report over at Also Also.

There are two salient points to take from this analysis: first, electoral error rates can run to at LEAST 1%–and I say at least, because the figure cited only refers to votes not counted, leaving out invalid votes that are accidentally counted. In fact, as the article points out, “The National Commission on Election Reform has recommended that states reduce their error rates below 2 percent no matter what mechanism they use [emph mine, again].” Below two percent? So what does it say about a county with a new database and record numbers of voters, when they manage to achieve an “error rate” about one-TENTH of the national standard?

It says that whatever irregularities there were in this election (and of course, there were some,) were not all that irregular. I’ll repeat my mantra: the only thing extraordinary about this election is its extraordinary closeness. This election is so far within the margin of error that we simply cannot confidently determine who got the most votes… but Gregoire won by the rules. If there had been no hand recount, and Rossi had been declared the winner by 42 votes, his attorneys would be as vigorous in defending the integrity of the election as they are now in attacking it.

It is time to stop arguing over this past election, and start arguing over how to improve future ones. To that end, I intend to start posting a series on election reform, later this week.

A quick link to Mark Trahant’s column in the Sunday Seattle P-I: “Journalism as interactive medium.”

Mark writes about the P-I’s experiment of attaching online polls to nearly every editorial (but curiously, not this one.) Their goal is a noble one, to make journalism more interactive by easily facilitating reader feedback. But you all know my opinion about these stupid, lame-ass, online polls: they’re, um… stupid, and uh… lame-ass.

Online polls are too often leading, and too easily manipulated by OCD-like freepers, who would rather create the illusion that the people agree with them, than go through the actual effort of persuasion. Online polls also are not particularly all that interactive.

But how does journalism — especially opinion journalism — feel the pulse of what’s important to our readers? How do we measure and share those concerns with other readers? How can we contribute to a community’s conversation about itself, reflecting the concerns that people tell one another?

Um… why not attach a comment section to every editorial (or even every article for that matter) essentially turning the online version of the P-I into an uber-blog? Many real journalists are rightly concerned about the growing influence of us bloggers. So why not beat us at our own game?

See, I’ll let you in on a little secret, Mark. It’s not content that drives blogs… it’s community. Oh sure, content is important, and I’m gratified that so many people stop by to read me on a daily basis. But let’s be honest, my most engaged readers aren’t checking in a dozen times a day just in case there’s a fresh post. They’re itching to read the latest comments on their comments on other people’s comments, and so on.

Trust me Mark, you’re readers are just dying to share their comments with you — so much so, that for want of the opportunity, they’re going to leave their comments here on HA, by proxy. You say only 277 people responded to a recent poll, and yes, I understand you didn’t promote it. But HA has a tiny, tiny fraction of your daily readership, and yet three out of my last four posts have generated triple-digit comments. These people didn’t just push a few buttons… they took the time to thoughtfully put their opinions into words. (Well… some of them.) Now that’s interaction.

This brave new world of open-source journalism is a scary place Mark, but if traditional journalists like you don’t start to embrace it, it will pass you by. Do you really want public opinion to be shaped by propagandists like me and Stefan? I sure don’t.

So please… no more baby steps. It’s time for the P-I to jump right in and open a comment thread on every article and editorial you publish. Be bold. Be creative.

You’ve got to stop thinking of your website as the online version of the P-I. Your website is the P-I… and that thing the Times prints for you every day? That’s the paper version.

Make that paradigm shift, and you may even have a chance of surviving in a post-JOA world.

There has been some crowing over on the right-wing blogs about a recent Rasmussen Poll that showed Dino Rossi beating Maria Cantwell in a hypothetical match-up, 47% to 44%.

The poll also showed favorable ratings of Rossi 55%, Cantwell 54%, and Gregoire 50%. And on the issue of who really got the most votes in November’s gubernatorial election, 42% of respondents said Gregoire, 44% said Rossi, and 15% didn’t know.

Now I know my righty readers will accuse me of spin, but you know what…? As a partisan Democrat, I honestly don’t think those numbers look so bad.

Put aside the question for a moment of whether this was, or was not, a legitimate election, and you have to admit that Washington voters have been subjected to an intense and unprecedented propaganda campaign promoting the latter. And yet, after months of allegation after allegation that Gregoire and the Democrats stole this election through incompetence and/or fraud, public opinion on its legitimacy is well within the +/- 4.5% margin of error, and Gregoire’s favorables rank a couple points higher than her performance on election day.

With every day Gregoire holds the governor’s mansion, with every GOP defeat in the courts, and with every debunking of an allegation… the election contest becomes little more than partisan white noise. As it stands, Republican-leaning Rasmussen (Tim Eyman’s favorite polling company) already shows public opinion on the election and the candidates virtually split along the same lines as November. While I’m sure the contest will energize some of Rossi’s true believers during his 2008 rematch, for the general public that election will be a referendum on Gregoire’s job performance, not on a four-year-old election dispute.

I’m not saying the highly public election contest hasn’t negatively impacted Gregoire at all… just not nearly as much as I would have imagined, and surely not as much as Republicans would have hoped for.

If there’s any alarming data coming out of this poll, it is Maria Cantwell’s relative weakness… but that’s not such a surprise. Still 54% approval ain’t so bad, and the match-up with Rossi is purely hypothetical. As I’ve said before, I don’t expect him to run for the Senate.

So Republicans can crow all they want about these poll numbers. But they may end up eating a little crow come the actual elections.

Without a doubt, HA has the most active and passionate comment threads of any political blog in the Northwest. While (un)Sound Politics still draws considerably higher traffic, my couple of posts a day regularly manage to generate a comparable number of total comments — an even more remarkable feat considering that that (u)SP has fourteen contributors, and comments are distributed across as many as a dozen posts daily. HA often receives over 200 comments a day, and it is not uncommon for a single thread to cross over into triple digits.

Much of the time I am superfluous to the raging debate, with comment threads veering off in unimagined directions, sometimes without any input from me whatsoever. While I am proud to have created a forum that has become an important part of your daily routine, I recognize that it is my readers to whom I owe my success.

I firmly believe that part of HA’s amazing growth is due to my oft debated policy of never banning what the other guys call “trolls.” I’m not talking about those passionate people on the other side, willing to debate the issues with respect for an open dialogue, if not with an open mind. I’m talking about the assholes (and you know who you are,) who when they see that they cannot win a debate, content themselves to disrupt it. Or the solipsists who ignore basic blog etiquette to promote their own agenda or websites.

For the most part, the HA threads have been self-moderating; while they sometimes get out of hand, and hopelessly off-topic (like today), you all have usually done a commendable job of policing each other. I do not want to be a schoolmarm or an editor. Banning people is philosophically problematic, and technically impractical as long as I allow anonymous posting. And if you can describe me as being a libertarian on any issue, it is on free speech.

But none few of us want the comment threads to devolve into pointless name-calling…though I have absolutely no problem with the pointed kind. This is not about sanitizing HA… this is about fostering debate — even angry debate — without getting sidetracked by personal attacks and retribution.

So I want to leave this as an open thread where we can all talk about how we can make HA a better place for public debate… what type of etiquette we need to enforce, and how best to enforce it.

Your comments, as always, are appreciated. (Except for you Cynical… yours are merely tolerated.)

I had my half hour on the Carlson show this afternoon — which I think, after subtracting commercials, traffic reports and other interstitials, came to about four-and-a-half minutes of air time — and then Stefan had his turn. After calling me “sweet” and complimenting my fiction writing skills (oooh… I think he likes me,) Stefan ran out of canned outrage, so John had to change the subject to (dramatic chord) the felon vote.

Carla over at Preemptive Karma recently deboned some of the red herrings flapping about over Republican charges that a thousand-plus felons voted illegally in the November election. Carla points out that by making felons the crux of their election contest, Rossi’s attorneys have constructed a legal catch-22:

Rossi’s people (and the State GOP) are complaining that taking affadavits from felons is a nonstarter because a felon can’t be trusted to swear to the truth. Too damn bad. The law is the law. Rossi must prove that enough illegal votes went to Gregiore to tip the election to her (RCW 29A.68.110).

Mary Lane complains that the convicted felons can’t be placed on the stand because they’re criminals.

Maybe you guys should have thought of that before you hung your contest on the illegal felon vote, Mary.

My guess is, the Rossi people have thought of that. I can’t vouch for Rossi himself, but his lawyers ain’t dumb; they understand they have to do a helluva lot more than just prove there are more illegal votes than Gregoire’s margin of error. So I’m guessing this attempted hoo-hah over the thousand felons, actually has very little to do with legal strategy.

My intuition is reinforced by the fact that the Rossi campaign has focused its media efforts, not on the possible impact of felons voting, but on King County’s alleged negligence for allowing felons to vote in the first place.

Understand, these allegations can have no legal impact whatsoever. The court has already ruled that votes by felons will be contested as illegal votes under the statute — blaming them on official misconduct cannot change their status.

So why the extralegal effort to blame King County Elections for voting felons? Well this has long since ceased to be about winning an election contest. This is about delegitimizing the Gregoire Administration in particular, and Democrats in general.

Allegations of negligence or corruption against King County are so far off, they would be funny… assuming you find vicious, hateful slander funny. The (un)Sounders have ridiculed Dean Logan for saying that his department only has the authorization (and the ability) to remove felons from the roles when notified by the courts. But that’s exactly what RCW 29A.08.520 says… at least, through the end of the year:

RCW 29A.08.520
Felony conviction. (Effective until January 1, 2006.)

Upon receiving official notice of a person’s conviction of a felony in either state or federal court, if the convicted person is a registered voter in the county, the county auditor shall cancel the defendant’s voter registration.

RCW 29A.08.520
Felony conviction. (Effective January 1, 2006.)

Upon receiving official notice of a person’s conviction of a felony in either state or federal court, if the convicted person is a registered voter in the county, the county auditor shall cancel the defendant’s voter registration. Additionally, the secretary of state in conjunction with the department of corrections shall arrange for a periodic comparison of a list of known felons with the statewide voter registration list. If a person is found on the department of corrections felon list and the statewide voter registration list, the secretary of state or county auditor shall confirm the match through a date of birth comparison and cancel the voter registration from the official state voter registration list. The canceling authority shall send notice of the proposed cancellation to the person at his or her last known voter registration address.

Get it? On Jan 1, 2006, the law changes, requiring counties to do exactly what Republicans are accusing King County of not doing. Not surprisingly, that’s also the date the Secretary of State’s database is scheduled to go live… the database that actually makes purging the rolls of felons possible. As I’ve said before, if the current statute actually granted county officials the authority and ability to routinely purge felons from the rolls, the Legislature wouldn’t be adding a provision that grants county officials the authority and ability to purge felons from the rolls.

At the end of the show, John Carlson accused Democrats of being “utterly disinterested” in illegitimate votes, and he challenged his listeners to come up with the name of a single Democrat who has shown alarm or dismay at the thought of felons voting. Well John, I’d say that SSB 6419 — the bill that amended the statute above — showed quite a bit of concern over the issue of felons voting. And considering it unanimously passed both houses of the Legislature last March, I’m pretty damn sure you’ll find more than a handful of Democrats who supported it… not to mention former Governor Gary Locke, who signed it into law.

No… none of this is really about the 2004 gubernatorial election. This is about control of the Legislature in 2006, and more specifically, the governor’s race in 2008.

Welcome to the meanest, ugliest, longest campaign in state history.

I’ll be on the John Carlson Show 570-KVI, this afternoon at 4:03 PM. John and I will be talking about “the big binder“, and possibly some other election contest errata.

UPDATE:
The Snark has posted that he too is scheduled for Carlson in the 4 PM hour. I was told I’d be on solo, so it looks like just a single segment for me, and then Snark gets to refute. I’d much prefer to go head-to-head.

UPDATE, UPDATE:
I asked the producer to let us go head to head, but apparently Snark refused. Too bad… it would have been much more fun than my wonkish display of truth-telling. Other than the fact that I was probably a little boring, I thought I got my point across. Ah well, now I’ll sit back and listen to Snark’s rebuttal.

UPDATE, UPDATE, UPDATE:
Twice Stefan called me a “sweet guy;” I’m not really sure what he was implying, but I’d be happy to discuss it with him over drinks. He also thinks I am an excellent writer of “fiction.” I can only assume that he was one of the few dozen non-family members to see my Off-Broadway musical flop. (Just like Stefan for his review to be at odds with the “liberal” New York Times.)

Then he proceeded to devastatingly refute me by charging that yes, the binder does exist… and yes, it does contain the data I said it contains… and yes, my description of the polling place reconciliation process was accurate… and… um… what was the refutation again? Oh yeah… the reconciliation numbers are “way off”, not that he’s actually seen the numbers, but he’s been told so by “sources” and “leaks” and “people that know”… whereas I have naively and deceptively relied on second-hand testimony from KC Elections Director Dean Logan, and KC Superintendent of Elections Bill Huennekens, and KC Elections Communications Specialist Bobbie Egan.

He then concluded his discussion of the binder with a classically McCarthyite rhetorical flourish: “If it exonerated them, they would have released it.” A conjecture to which I would have liked to reply… exonerated them of what?

Following the Snark’s example of logic and fair play, I suppose it appropriate to ask him… if he had not moved to Seattle to flee some personal scandal back in California, why hasn’t he produced the exculpatory evidence? Or perhaps proving a negative is a burden only government officials deserve?

John and Stefan then went on to discuss “the felon vote”, a topic I will address in more detail in a separate post.

While I expect that one’s take on who got the better of the discussion will be colored by ones own partisan perspective, there is one thing that the honest among you surely must admit. John’s listeners actually learned something new from me today: the actual process of polling place reconciliation, and the fact that it did indeed take place. I managed to contribute factual information to the conversation; whether it was lost amidst the usual noise and rancor of talk radio, is beyond my control.

[More on Snark Talk…]

I’ve been meaning to mention a new local blog for the past couple days, so I thought I’d just give a quick plug to blatherWatch, which fills in the gaping niche of slamming critiquing talk radio.

Listening to talk radio, so you don’t have to — a turn of phrase I freely offer to freelance-journalist-turned-unpaid-blogger Michael Hood as his new motto — blatherWatch intends to cover the entire radio spectrum. I wouldn’t wish this curse on my worst enemy… I can barely suffer through Air America due to all the commercials… and those tend to be the least unpleasant moments on right-wing rant stations like KTTH and KKKvi. But as much as we love to hate GOP-surrogate blogs like (un)Sound Politics, talk radio is still by far the loudest voice in the right-wing echo chamber, and somebody needs to keep an eye… um… ear on the opposition.

Recent topics have included the impending real-news-blackout that will accompany the papal death watch, KTTH host Mike Siegel’s ties to Bill O’Reilly, and the highly suspect slant of the Arbitron ratings:

NPR and other public broadcasters are not surveyed, since they’re non-commercial and Arbitron is nothing if not about business. That leaves a large part of the local listener story left untold especially in liberal markets like Seattle where NPR is widely tuned in.

It also throws into question the numbers that conservative talk supposedly enjoys and the conventional wisdom that there’s not enough progressive interest in radio talk for it to pencil.

Personally, I hope blatherWatch fleshes out its excellent commentary and analysis with a bit more reporting of the daily truth-carnage on our local airwaves. I’m not sure if Michael knows what he’s getting himself into, but if, like me, he stupidly dedicates too much of his time to blogging, blatherWatch will surely evolve into an important destination in the local blogosphere.

Righties like to attack avowed liberals like me for wanting to “redistribute wealth,” but they apparently have no problem when the wealth is redistributed to the wealthy. And as Geov Parrish points out in The Seattle Weekly, that’s exactly the effect of President Bush’s new budget proposal. [“Transfer of Wealth“]

President Bush’s 2006 budget proposal, unveiled in detail last week, is the other shoe dropping. It’s not quite fair to say that this is a budget designed to reduce the deficit. There’s still plenty of expansive spending; the Pentagon’s budget increases, and pork for favored Republican projects still abounds.

But what it does do is use the deficit, created in four short years by this administration, as an excuse for targeting all the programs Republicans don’t like. The Department of Education

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I’d like to go refreshingly off-topic for a moment and point you all to an excellent column by political strategist Dan Carol, “Rebuilding Labor.” Written as an open letter to national SEIU President Andy Stern, Dan shows once again why he is one of the most creative strategic minds in progressive politics.

Dan isn’t just talking about rebuilding labor. He wants to re-brand it.

No, I am not weighing in with any thoughts on the internal “future of the labor movement” debate roiling on in Vegas next week. You think I am crazy? That’s not my gig.

But I did want to flag some emerging, massive opportunities that SEIU, and all unions, can capture in areas that aren’t traditionally the province of labor.

I’m talking about building the union halls, community centers and even the malls of the 21st century.

Because right now, as you well know, Wal-Mart is winning.

Dan delivers the bad news (at least to unions) that with a growing “freelance economy” of some 10 million independent workers and 25 million part-timers, the workplace is no longer a central gathering place. He warns that unions will continue to shrink in size and influence, unless they stretch beyond their traditional vision of workplace organizing and better benefits.

Dan argues that labor needs to reach out to “non-traditional” audiences and start talking about more than just the need for workers to organize, but about education and child care and other pressing issues. How?

I’m talking about the appeal of Apple’s iPod stores.

I’m talking about creating places for mixing together

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A tip of the hat to Paul for pointing me towards this Letter to the Editor in The Olympian:

Republicans are party of choice for prisoners

I write regarding the Republican hot-button issue du jour — felons voting.

The federal prison camp where I was ensconced recently for 16 months housed a large number of white-collar criminals — CPAs, investment bankers and stockbrokers, corporate lawyers, CFOs and CEOs, who were Republicans almost to a man, and had their Wall Street Journals mailed to them daily.

Indeed, almost the only progressive-minded souls there were in the sparse ranks of us pot growers, together of course with many of the political prisoners.

During my taxpayer-subsidized sabbatical, I initiated countless discussions with fellow inmates designed to assess their political preferences.

What I found was that the huge plurality of inmates where I was, of all ethnicities and backgrounds (most of them, like Big Pharma, common drug peddlers), were fundamentally apolitical — most of them having never voted, ever, or even registered to vote, and could not have cared less about being denied their right to vote.

Yet, when asked whether they preferred a liberal Democratic or Republican candidate or philosophy, they, like the white-collar guys, consistently chose Republican, by margins of 65 percent to 80 percent.

Why?

Because in their view, Republicans were the virile, tough, action-taking, man’s-man party, while liberals and Democrats were reviled as soft, weak, passive, femme — minority and gay-hugging pushovers and saps.

So why, I wonder, should Republicans have their undies in a knot about felons voting when from my direct experience Republicans clearly are the red-blooded all-American felon’s party of choice?

Brydon Stewart, Olympia

Republicans are “the virile, tough, action-taking, man’s-man party?” Gee, I don’t know… looking at soft-spoken Dino, I’m guessing that if he had gone to prison like his mentor, he probably would have ended up becoming somebody’s bitch. But I guess that would have made him a “man’s man,” wouldn’t it?

TJ over at Also Also has posted a thorough reporting of the transcript of Chelan County Judge John Bridges rulings, and how they might impact Dino Rossi’s prospects of setting aside the gubernatorial election. (Cliff Notes Version: “It don’t look so good for Rossi.”)

TJ split his post between the morning session (Part I) and the afternoon session (Part II). For the sake of dramatic arc, read both. But if you just want to skip to the juicy stuff, go straight to Part II. I won’t post in detail on the entire transcript, because TJ’s fine analysis has sufficiently satisfied my latently wonkish tendencies. Instead, I thought I’d focus on the all important issue of the burden of proof.

While Judge Bridges never explicitly rules on the burden of proof necessary to set aside an election, TJ correctly points out that he drops several huge hints. One of the biggest is when he discusses RCW 29A.68.110‘s apparently high standard for setting aside an election. Judge Bridges explains:

This same requirement was recognized early in our state’s history when in 1912 our Supreme Court in Hill v. Howell held that when there was no evidence to show for whom the elector voted and because both candidates were innocent of wrongdoing, the vote must be treated between the parties as a legitimate vote.

Remember everything I’ve written about how acceptance of uncertainty is implicit in our election statutes? Well this very pragmatic principle is clearly expressed in an excerpt from Hill v. Howell, which TJ courteously provides to his readers:

An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future.

TJ calls this the “Shit Happens” ruling, and while it may offend the sensibilities of Rossi supporters, this is exactly why they will find a court of law to be a much tougher venue than the court of public opinion. They can allege all the felon votes they want, but according to RCW 29A.68.110, unless they can prove these votes likely changed the outcome, well… shit happens.

In moving on from illegal votes to other irregularities, Judge Bridges again signals that he believes the same high burden of proof should apply. He points out that few election contests succeed, and he suggests that there are “some well-recognized presumptions, if not policy reasons, why elections should not be overturned.”

For instance, do we as voters and as constituents of candidates want to engage in what one judge referred to as seasons of discontent commencing the moment after the polls close on election day.

Um… I don’t. But apparently Dino Rossi, Chris Vance, the BIAW and right-wing bloggers and talk-radio hosts have no compunction about trashing the integrity of our electoral process in the interest of a short-term political gain.

If, as the Rossi campaign continues to claim, they need only show that there were more errors or illegal votes than Gregoire’s 129-vote margin, it would be an invitation to contest nearly every close election. How close is too close? If Mark Sidran had challenged Deborah Senn’s victory in the attorney general primary, could the contest ever have been decided in time for the general election?

These are pragmatic considerations, embodied in law, and that’s why (un)Sound Politic’s OCD-like focus on the so-called voter-credit “discrepancy” is a legal red herring. They continue to cry scandal, charging that King County has not proven it actually reconciled the election results… but they have the burden of proof exactly backwards. As Judge Bridges explains:

Our Supreme Court has observed that election officers are presumed to have complied with the duties required of them in an honest and careful manner. That was the Quigley case. And also in Quigley the Court noted that the returns of any election official are entitled to the presumption of regularity…. And in McCormick v. Okanogan County in 1978, the Supreme Court observed that informality of irregularity in an election that does not affect the result is not sufficient to invalidate the election.

King County didn’t properly reconcile election returns? Prove it. Subpoena the binder and the poll books and prove they didn’t do their job. I think the court will agree that “the duties required” of KC Elections do not necessarily include giving Snark everything he wants in .XLS file format.

But let’s forget for a moment what is or is not an “irregularity,” and get back to the burden of proof for such “misconduct.” On this, Judge Bridges could not be clearer:

With respect to misconduct, whether that misconduct falls in 020 or 011, I think the standard is 29A.68.070, and so I want to say that so you folks have some sense of what I think the ultimate standard of proof is and what the petitioners have to show.

Stick a Foulkes in it, this case is done!

For those of you have followed my analysis (“Foolish Foulkes“) based on my correspondence with “Lawyer X”, I’m beginning to look awfully damn smart right about now. Rossi’s attorneys have based their case primarily on Foulkes v. Hays, claiming the court is not constrained by the narrow standards and remedies set out in the contest statute. But as I previously pointed out, Foulkes was decided on a section (now .011) that has since been pulled inside the framework of the contest statute. Rather than considering .011 in isolation, Judge Bridges has clearly stated that its burden of proof is that set forth under .070.

And in perhaps his most devastating ruling of the day (at least, to Rossi), Judge Bridges indicates that, unlike Foulkes, the contest statute constrains available remedies as well.

I would note first that the Foulkes case, which is indeed a case that I relied on heavily today, I’m sure to the consternation of the intervenors, has now been cited again to me by the petitioners, but at this time I’m going to distinguish the Foulkes case from what I have to decide here because in the Foulkes case, our Supreme Court was faced with the prospect of addressing the election of a county commissioner. And here, this Court is faced with a state executive officer and there are certain constitutional provisions that attach to a state executive officer.

The judge then goes on to cite several constitutional and statutory provisions, before concluding that “a statewide special election is not permitted by Washington’s election contest statute” nor the state constitution.

But a new election was exactly the remedy ordered by the court under .011 in the Foulkes decision. In Foulkes, the court reached to its “general equity jurisdiction” to order a new election, but Judge Bridges clearly and concisely concludes his ruling by stating:

The Court doesn’t have that authority under the statute, or the Constitution, and the Court thinks it should not exercise it on the grounds of equity.

If the court doesn’t have the authority to devise its own remedy, then it also doesn’t have the authority to devise its own standards, and thus the burden of proof is that set forth in .070 and .110. It is not enough that disputed ballots may have changed the outcome of the election, it must appear that illegal votes and other irregularities actually did change the outcome. We can argue all we want over the meaning of the word “appear” (the dictionary says “seems likely,”) but in order to prevail, it appears that Rossi must actually provide evidence that he received more legitimate votes than Gregoire.

I have quoted entirely from the afternoon session, but in closing I want to go all the way back to Judge Bridges first ruling of the day, when he narrowly ruled that the court had “subject matter jurisdiction” over the contest, but set the tone for the rest of the day by immediately citing Dumas v. Gagner as a caveat.

Election contests are governed by several general principles. Chief among them is the principle long followed by this Court that the judiciary should exercise restraint in interfering with the elective process which is reserved to the people in the state Constitution. Unless an election is clearly invalid, when the people have spoken, their verdict should not be disturbed by the courts.

“Clearly invalid.”

That’s a pretty high standard. As it should be.

I just sent the following email to Tim Eyman. Think he’ll accept my olive branch?

From: “David Goldstein” david@horsesass.org
Date: Wed Feb 23, 2005 12:38:53 AM US/Pacific
To: “Tim Eyman” insignia@greekwatch.com
Subject: Please join me in supporting SHJR 4205

Dear Tim,

I can’t tell you how much it saddens me that we haven’t been able to develop a more constructive, working relationship. Indeed, some might even describe us as downright adversarial.

For example, you sponsor an ill-conceived, boneheaded initiative, and I oppose it. You send out a deceptive, misleading press release, and I refute it. You cook the books to hide the fact that you are using initiative campaign contributions to fund your personal compensation committee, and I file a complaint with the Public Disclosure Commission.

And then, of course, there was that whole “Tim Eyman is a Horse’s Ass” initiative. While I’m sure we both had a good laugh at that one, I’m guessing we were probably on opposite sides of the issue. (I was for it.)

But I think I have finally found an issue we can both support.

This week the state House passed by a 73-25 margin, a constitutional amendment that would eliminate the 60% super-majority required by local school levies. The amendment faces a tougher challenge in the Senate, but if it passes by two-thirds, it will be sent before the people for their approval.

As a self-proclaimed champion of direct democracy, you have time and again admonished our elected officials and judges to honor the will of the people. In defense of your own initiatives — even the really, really stupid ones — you have argued that voters, not politicians, should be trusted to choose the kind of government they want. Thus I am confident that you will agree with me that the super-majority amendment can and should be decided directly by the voters… for to contend otherwise would be hypocritical.

That’s why I urge you to join me in asking the Senate to approve SHJR 4205. I suggest we draft a joint letter, instructing our respective supporters to contact their state senator, and demand that the people be given the opportunity to decide this important issue for themselves. Since I happen to have a copy of your list, I’d be happy to directly email your supporters on your behalf.

This is a terrific opportunity, not just to strike a blow for direct democracy, but for you to jump-start your stalled initiative career by supporting something that actually has a chance of passing. You’ve had two consecutive years without an electoral victory, and you’ve got to admit, this year’s performance audits initiative was dead on arrival. (Oh man… what were you thinking?) This is a chance for you to briefly be relevant again.

Given the opportunity to work together, I believe we can make a positive impact on all of Washington’s citizens, as well as learn a little something from one another. For example, I could teach you how to directly answer a reporter’s questions… and I understand you could teach me a few creative accounting tricks.

I look forward to our new partnership, and eagerly await your reply.

Affectionately yours,

David