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Kudos to David Postman of the Seattle Times for interviewing Kenny Foulkes, of Foulkes v. Hays fame, the Supreme Court case that Rossi relies upon to argue that the gubernatorial election should be set aside.

In a 1974 Adams County Commissioner race, the court determined that a number of ballots had been fraudulently altered between counts. The election was set aside due to fraud, even though the number of known, altered ballots was less than the margin of victory. The court wrote, “the irregularity was such that the actual result of the voting could not be ascertained.”

Democrats argue that Rossi’s attorneys have failed to provide any evidence of fraud, making the Foulkes standard irrelevant. And apparently, Foulkes himself agrees.

Foulkes wishes his case would make the difference. He’s a Rossi supporter, but thinks his precedent may not help.

“It’s a tough one to prove because they may not be able to prove fraud like me,” Foulkes said.

Yup… fraud is a helluva lot tougher to prove than it is to allege.

[NWPT48]Day 7, and I’m running out of snide headlines. I’ll be following along (when not disciplining my puppy) and updating this post with observations as they occur to me, but in case I miss anything, you can always check out the latest trial update from David Postman in The Seattle Times.

Logan’s run-on sentence
The proceedings have opened with Dean Logan on the stand. I’ve talked to Dean, and he strikes me as a dedicated, administrative wonk… but not the best communicator in the world. Expect some very long, drawn out, detailed answers.

BREAKING NEWS: Logan repeats stuff we’ve already heard! (11:29 am)
For the life of me, I just can’t think of anything to write about. There’s been absolutely no news coming out of Dean Logan’s testimony… and every answer — to both Democratic and Republican attorneys — has been delivered in the same, calm, monotone.

So instead I’ll just report on what Stefan is reporting. Permit me to paraphrase:

“Dean Logan is a liar.”
“Dean Logan has perjured himself.”
“Dean Logan lies.”
“Dean Logan is dishonest.”
“Dean Logan is a lying, dishonest perjurer.”

Yeah, and more stuff like that.

And that’s exactly my point (1:41 pm)
Dean Logan was just asked if it would be possible to count the absentee envelopes, and he said:

Yes.

So… um… if the Republicans suspect there were more ballots than voters, why didn’t the make a public records request for the envelopes?

That was it? (2:00 pm)
After months of vilifying Dean Logan as a liar and a thief… after Bob Williams of the Evergreen Freedom Foundation demanded that Logan should be put behind bars… Logan finished his half day on the stand with neither a whimper or a bang. He just calmly, wonkishly answered the questions put before them, telling us absolutely nothing new. The Rossi folk cast the wrong guy in the role of super villain.

Logan has been excused, and Democratic expert Chris Adolph is now on the stand.

Radio Days (2:37 pm)
I’ll be on the John Carlson Show again today at 3:15 pm, KVI-570, the Victoria Taft Show tonight at 7:35 pm, 860-KPAM (Portland), and the Kirby Wilbur Show tomorrow morning at 7:30 am, KVI-570.

Statistical tie (5:01 pm)
Before completing his cross-examination, GOP attorney Mark Braden got Democrat expert witness Chris Adolph to agree that from the aggregate data we could not determine which candidate got the most legal votes. Well, I could have told you that. In fact, I did, way back on 12/02/04:

Republicans scoff at Gregoire calling this election a tie, but statistically speaking, it is. This election is so far within the margin of error, that there is no practical way to accurately determine the winner.

Thus, the results of the third count

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I suppose there might have been a legal strategy to Rossi attorney Dale Foreman’s hostile treatment of state Elections Director Nick Handy. Desperate to find more “illegal” votes to throw into their dubious proportional deduction calculations, the Republicans may be hoping to have the alleged 875-vote discrepancy in King County’s absentee ballots ruled as illegal votes.

But I see two problems with this strategy. 1) the Judge has already ruled that voter crediting could not be used as evidence, and 2) one could always verify whether there really is a discrepancy by counting the fucking envelopes.

The Republicans would prefer that the court set aside the election based on a statistical analysis of a supposition derived from a faulty crediting process. But if we really wanted to know if there really is a discrepancy we could always count the fucking envelopes.

It’s hard to see how the GOP argument flies.

Once again anti-business Democratic legislation is pushing jobs and businesses out of state:

Now that Washington state lawmakers have restricted over-the-counter sales of the ingredients used to make the illicit drug, some officials are worried that Idaho will see an increase in meth-related crimes.

“I feel very sorry for you (Idaho) because you will feel the aftermath of it now,” said Washington Rep. Tom Campbell, D-Roy. “Boise will become the preferred shopping mall of meth cooks in the area.”

Pseudoephedrine now accounts for as much as 7% of total revenues at some rural Washington Wal-Marts (second only to amonium nitrate,) while meth labs have become the state’s fastest growing industry. So it’s no wonder business groups are concerned about this overreaching legislation.

Jan Teague, president of the Washington Retailers Association, said businesses are worried about the cost of complying with the new laws and possibly losing customers who see the log as an invasion of privacy.

If you ask me Jan, I think you may have the makings of a voter revolt. You better contact John and Kirby over at KVI and see if they can help you get an initiative on the ballot.

It’s all over the news wires… one of the most intriguing political mysteries of the last half century may have finally been solved:

A former FBI official claims he was “Deep Throat,” the long-anonymous source who leaked secrets about President Nixon’s Watergate coverup to The Washington Post, Vanity Fair reported Tuesday.

W. Mark Felt, 91, who was second-in-command at the FBI in the early 1970s, kept the secret even from his family until 2002, when he confided to a friend that he had been Post reporter Bob Woodward’s source, the magazine said.

“I’m the guy they used to call Deep Throat,” he told lawyer John D. O’Connor, the author of the Vanity Fair article, the magazine said in a news release.

Still waiting for confirmation from Woodward and Bernstein.

UPDATE:
The Washington Post has confirmed that Felt is indeed Deep Throat.

[NWPT48]It’s week-two of Dino Rossi’s quixotic election contest trial, and I’m much more looking forward to this week’s proceedings than last week’s proceedings… mostly because this week is only four days long. That said, I’m guessing the Democrats’ testimony will be even more boring than the Republicans’, since at least the latter offered the tiniest prospect of dramatically producing a smoking gun.

Anyway, I’ll be following the proceedings live, and updating this post with tidbits and observations as they happen; if you are a connoisseur of tedium you can follow along on TVW. And as always I recommend you occasionally check out David Postman’s trial updates in The Seattle Times.

If wishes were horses, then Stefan would ride
On Saturday, our good friend Stefan over at (u)SP predicted that Dino Rossi would prevail, and the election would be set aside. So here’s my prediction: Stefan is delusional. (Some might argue that’s not so much a prediction, as a statement of fact.)

Okay… maybe Stefan’s not delusional. Perhaps he fully understands Rossi has lost, and his bold prediction is part of some propagandistic strategy that I’m just not clever enough to fathom. Or perhaps Stefan isn’t nearly as smart as I’ve given him credit for. He could just be wrong. Hey… people make mistakes… there’s no shame in that.

But I think it is just wishful thinking.

Nixon goes to Chelan (10:40 am)
State Elections Director Nixon “Nick” Handy is on the stand, talking about the challenges all the counties faced in conducting November’s election. Under questioning from Democrat attorney Jenny Durkan, Handy is outlining errors throughout the state, and after each example, he agrees that there is no evidence of fraud. The goal apparently is to show that there was nothing unusual or nefarious about the problems in King County.

At this moment, Handy is explaining that voter crediting is “administrative housekeeping,” and not generally a record of the number of people who cast votes:

“Many if not most auditors opted to go back and credit voters after the election was certified.”

He emphatically insists that comparing the number of people credited with voting and the number of ballots counted is not a measure of the authenticity of the election.

Handy not “appalled” (10:53 am)
Sec. of State Sam Reed had been quoted in the press as saying he found some of the mistakes in King County Elections to be “appalling.” Durkan asked Handy if he agreed with his boss’s assessment, and he bluntly said “No.” He described the problems as “inadvertent mistakes and errors of human beings who are working their hearts out,” and insisted there was no evidence of an attempt to sway the election or affect votes in one way or another.

On the topic of felon votes, Handy stated that voter registration is based on “the honor system” and that it simply would not be possible to do background checks on all registrants.

Durkan has finished her questioning, and the Republicans will cross after a 15 minute recess.

Rah rah sis koom bah (11:32 am)
Republican attorney Dale Forman called Handy a “cheerleader.”

Liberal blogger David Goldstein called Forman an “asshole.”

Rossi PR “unfair and inaccurate” (12:06 pm)
Forman doesn’t like Handy’s answers. So now he’s getting mad at him, accusing him of deliberately trying to undermine Rossi’s case. (Um… Dale… you are suing the SoS… you expect them to make your case for you?) In response, Handy made clear his own opinion about the GOP’s dishonest misrepresentation of this election, stating that their “public affairs campaign” was:

“…undermining the trust and confidence of the average voter in the election system, in a way that is unfair and inaccurate. I believe that.”

Court is in recess until 1:15 pm.

TVW fraudulently goes down (1:58 pm)
The court is back in session, but apparently TVW is not. About 10 minutes in, the stream went down, and I now I can’t even get to their website. So since I have no idea what is happening, I’ll just pretend I’m one Rossi’s attorneys, and make stuff up.

Attorney Dale Foreman shifted tact after lunch by telling state Elections Director Nick Handy that he had “pretty eyes.” When Handy responded that Foreman had liquor on his breath, Foreman angrily attacked Handy for being non-responsive, and insisted that he answer the question. Democrat Attorney Jenny Durkan objected on the point that Foreman had not actually asked a question. After some discussion, Foreman rephrased his question: “Nick… do I have pretty eyes?” Handy said that he didn’t really know, prompting Foreman to tearfully object to his own question. At this point, counsel approached the bench, and the Judge ruled that Foreman did have pretty eyes, but that the evidence was not admissible.

Oh… the TVW feed is back on. Damn it.

John Carlson (3:00 pm)
Ooops… almost forgot… Stefan and I will be on the John Carlson Show again today at 3:15 pm, KVI-570. And again, the rest of the week.

Perjury (3:58 pm)
Nothing breaks the tedium of following this godawful boring trial, quite like arguing with John and Stefan on KVI. It’s especially fun when Stefan shows his true neo-McCarthyite self, like this afternoon when he essentially accused Dean Logan of perjury. Well… he insisted that was my word, not his… but that’s the legal definition of lying on the witness stand.

Ah well, nothing riles up the right like veiled threats of imprisoning public officials.

Oh boy… recess! (4:39 pm)
Court has recessed for the day. We’ll come back bright and early with Dean Logan, who Stefan has accused of perjury, which is a convenient way of saying that anything he says that might hurt Rossi’s case is a lie, whereas anything he says that might help him is a grudging admission.

In a rare news conference this morning, President Bush was typically childish in attacking an Amnesty International report on Guantanamo:

President Bush called a human rights report “absurd” for criticizing the United States’ detention of terrorist suspects at Guantanamo Bay, Cuba, and said Tuesday the allegations were made by “people who hate America.”

When on occasion I must be stern with my daughter, it doesn’t mean I love her any less. And just this morning I reprimanded our new puppy (she dropped my Koran in the toilet,) but that doesn’t mean I hate her. Likewise, it is possible to love America, and be critical of her at the same time.

Our democracy is based on the free exchange of words and ideas. If anybody can be accused of “hating America” it is those who attempt to squelch public debate by dangerously branding all critics as traitors.

I’ll be back on the Kirby Wilbur Show, KVI-570, Tuesday morning at 7:30 am. Kirby and I will be discussing why Dino Rossi will surely lose his election contest.

Oh… I’ll also be back on The John Carlson Show, KVI-570, at 3:15 pm, discussing the same thing with John, and our good friend Stefan.

UPDATE:
If you’re interested, here is a clip from today’s show.

[NWPT48]One of the curious patterns I’ve noticed in the election contest trial, is how frank Rossi’s attorney’s have been with reporters after a long day of dishonesty in court. They opened the week by alleging “sinister fraud” and ballot box stuffing, claiming that this was enough to set aside the election. And yet at week’s end, the Republican’s lead attorney, Mark Braden, once again admitted to The Olympian that the key to their case is still proportionate deduction:

“If [Judge Bridges] says we have to show how individual voters voted, we lose,” Virginia-based Republican lawyer Mark Braden said Friday afternoon.

So not even Rossi’s attorneys believed that their own sloppy charges of fraud were grounds for setting aside this election. They acknowledge that they can’t win without proving that Rossi actually got the most votes. And oops… that’s exactly what they didn’t prove last week in court.

[NWPT48]There was a consistent theme to my appearances on The John Carlson Show. Each day both John and Stefan saw a series of Republican victories, while I remained nonplussed. Much of their legal optimism — manufactured or not — was based on the fact that Rossi’s attorneys won nearly every ruling or objection; Judge Bridges is clearly intent on allowing Rossi to present his entire case, such as it may be.

But as David Postman points out in his rather measured analysis in Sunday’s Seattle Times, looks can be deceiving.

There’s no question that Bridges’ rulings through the first five days of trial have almost exclusively benefited Republicans. But that may not be good news for Republicans.

There’s a belief among attorneys that a judge who thinks one side is likely to win will rule in favor of the other on evidentiary and procedural motions. That’s to reduce the likelihood that the case will be reversed due to a technical error, said University of Washington Law School professor Robert Aronson.

“But decisions like that have been known to backfire,” he said. The trial judge could be swayed if enough unfavorable evidence gets in, including some that should have been excluded.

Aronson said that’s more likely to happen with a jury trial. A judge in a bench trial

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Has anybody seen people gathering signatures for I-900, Tim Eyman’s superfluous performance audits initiative? He’s got the sugar daddy, so he’s got the money… and he claims to be spending it. But I haven’t seen a single signature gatherer myself.

This weekend kicks off the stretch drive of the signature gathering season, so I’d welcome reports of where you’ve seen petitioners, professional or otherwise. Particularly for those of you attending Folklife and other such events, a little recon would be greatly appreciated. Thanks.

The theme of the “case” presented by Dino Rossi’s attorney’s last week can pretty much be summed up by former U.S. Sen. Slade Gorton’s embarrassing statement of April 6:

“I think it’s appropriate to come to the conclusion that King County has the worst election administration in any county in the United States of America.”

What the fuck?

Forget for a moment that most of the alleged illegal votes were not the result of official error. And ignore the fact that Republican allegations of errors in King County have been overblown, and deliberately taken out of context. Regardless of what really happened in KC, a claim such as Slippery Slade’s would actually require a comparative study.

And one place to look might be, gee… I don’t know… Florida?

In the wake of their incredibly screwed up 2000 election, Miami-Dade County spent $24.5 million to move from punch card ballots to touch screen voting machines. Now in the wake of another incredibly screwed up election, the Supervisor of Elections has recommended scrapping the system and moving to optical scan.

After repeated embarrassing glitches at the polls, elections officials in Miami-Dade County have recommended scrapping the county’s $24.5 million electronic voting system in favor of paper ballots with optical scanners.

Supervisor of Elections Lester Sola made the recommendation Friday in an initial analysis of the county’s voting system and the feasibility of adopting a new one. In his report, Sola said that adopting the simpler system could save county taxpayers millions and restore voter confidence by providing a paper record of ballots cast.

In April, an outraged Mayor Carlos Alvarez requested a study on the merits of the optical scan system after revelations that the Elections Department lost hundreds of votes during the March 8 slot machine referendum because of a coding error.

Ooops.

The fact is, errors occur in every election, and while I’m sure there were many counties that performed better than King, you can be certain that there were plenty that performed much worse, in Florida, Ohio, Wisconsin and elsewhere. (And by the way… I hear rumor that Snohomish County is quietly considering scrapping their touch screen machines too, much to the consternation of Auditor Bob Terwilliger. Hmm… I wonder why?)

Yes, the number of errors in this election exceeded Christine Gregoire’s margin of victory. But it is curious that Republicans would argue that this alone is reason to set aside the results and hold a new election, when they never suggested the same for the presidential election in 2000.

[NWPT48]Week one trial wrap-up: Dino Rossi lost the election, and now he will lose his election contest lawsuit. Justice will be served.

I’ll follow up with a more detailed analysis, but I just want to reiterate for a moment my sense that this entire trial is sham. The GOP spent good money on good attorneys, and you can be sure that going into their opening arguments they had a pretty good understanding that this was a lost cause. But they decided to drag the state through it anyway (and I’m guessing again, in the inevitable Supreme Court appeal), simply because they believe they can use this as a forum for scoring political points in the court of public opinion.

That may be true, and that may constitute shrewd political strategy. But it is fundamentally dishonest, shows great disrespect for the law and the courts, is counter to the very purpose of the contest statute, and in the long term, may be very harmful to our democracy.

Rossi and his surrogates have tried to argue that the Legislature couldn’t possibly have intended to make proving a contest this hard, but I believe that by their very disregard for the statute, they are proving the wisdom of its authors. The bar was set so very high, exactly to prevent contests from being abused for pure political gain in the way the Republicans are now frivolously attempting. Yes, Rossi has every right to pursue a contest, but he also has the responsibility to the voters of this state to drop his challenge and concede, when faced with the reality that he cannot prevail in court. And that reality became absolutely obvious to all but the most impartial observers weeks ago, when the Democrats produced their list of offsetting illegal votes, making it impossible for Rossi to prevail, even on his own dubious proportional deduction theory.

But instead of conceding, Rossi’s attorneys concocted a bold opening statement, filled with bold lies, promising proof of stuffed ballots and other fraudulent acts on the part of King County Elections officials. They have not only failed to prove these charges, they failed to present a single scrap of direct evidence to support them.

Unable to actually put Rossi in the Governor’s Mansion, the Republican’s focus has been to make Gregoire’s win a Pyrrhic victory. Listen to the right-wing blogs and talk-radio… they’re laughing at Democrats for failing to prove their case to the public, even as the GOP attorneys flop in court. This has been a week about smearing Democrats in general — and King County in particular — and they intend to harvest the anger and suspicion they’ve lovingly sown, in upcoming election battles against Ron Sims, Maria Cantwell, and Democratic candidates across the state. Utilizing their own peculiar political alchemy, the Republicans have managed to transform the consolation prize — public opinion — into a trophy more coveted than the Governor’s Mansion itself.

One can only hope that like their leaders in the other Washington, our local GOP has also overreached. Sims is as formidable a candidate as David Irons is weak, and voters will clearly see Cantwell’s main opponent as the Bush/Delay/Frist agenda, regardless of who Karl Rove eventually recruits to run against her. Beyond these two elections, memory of this contest will fade, and Gregoire will eventually run for a second term on the basis of her record in office, not the baseless charges of fraud that have been irresponsibly leveled against her.

And the big loser in all this — in court, at the polls, and in public opinion — will be Dino Rossi. That is, if justice extends outside the courts.

Man there’s a lot of shit going on the threads. Looks like you all really need this sandbox. Fire away.

Let me be the first to call for Attorney General Rob McKenna’s resignation. Or at the very least, a very public mea culpa.

Yesterday in the Tacoma News Tribune, Ken Vogel reported on McKenna’s outspoken support for the Building Industry Association of Washington’s (BIAW) efforts to unseat Gov. Christine Gregoire: “Attorney general lauds GOP ally for collecting evidence.” The BIAW gathered much of the “evidence” used by Republicans in their election contest lawsuit, and financed the bulk of Rossi’s unprecedented and dishonest PR campaign to convince the public that this was a stolen election, regardless of the facts. That McKenna would sympathize with these efforts is no surprise, but that he would be so blatant in his public praise for the BIAW at the same time his office is charged with defending the secretary of state — the primary defendant in the suit — is at the very least unethical… if not a total disgrace.

“He’s supporting the entity that’s suing him and it is totally inappropriate for someone who is defending the secretary of state’s office,” said State Democratic Party Chairman Paul Berendt.

McKenna gave the keynote speech at a BIAW meeting, and he was unequivocal in his praise for both the organization, and it’s prominent and controversial role in the election contest. How blatant were his comments? Well, the BIAW, in their typical arrogant fashion, quotes a few of them for us in its March newsletter.

Attorney General Rob McKenna was the keynote speaker at the BIAW General Membership Luncheon at the Board of Directors meeting in Olympia. McKenna praised BIAW’s efforts in electing pro-business candidates in the November election, as well as for the association’s ongoing efforts to aid Dino Rossi’s legal challenge by finding illegal felon votes. McKenna noted BIAW made the most efficient and effective use of its campaign resources, using creative and high impact ideas to achieve the “biggest bang for a buck.” “BIAW is powerful, principled and effective — three important attributes,” said McKenna. “BIAW isn’t intimidated. BIAW doesn’t wilt under pressure,” he said. “That’s why the left fears BIAW. If every organization was as principled, it would be a far better state.” McKenna concluded his speech by thanking BIAW for its fearless and courageous leadership, and encouraged the association to keep up the battle.

Creative ideas? Oh… you mean like mailing out a fraudulent survey to hundreds of Seattle residents in an effort to trick them into giving up their signatures. High impact efforts? I suppose that might be the hundreds of thousands of dollars spent on direct mail, billboards, radio, and print advertising proclaiming “Felons vote, Soldiers don’t,” when in fact all the evidence shows that military ballots were mailed on time, and returned in similar percentages as regular absentee ballots. Pro-business candidates? Yup, that would be candidates like McKenna, on whom the BIAW spent millions of dollars in “independent expenditures” electing.

But regardless of how much McKenna owes his victory to the BIAW and its vicious, partisan hackery, as our state’s elected Attorney General, he steps far outside accepted notions of propriety in lauding and encouraging their role in suing his client. Given ass-licking statements like this, how can we expect McKenna’s office to impartially defend the state from lawsuits he clearly wants the state to lose? In closely following the court proceedings I have been taken aback when the secretary of state’s attorneys frequently side with the Republicans suing them. While the state’s attorneys have generally presented well reasoned arguments, being reasonable is not their job; our legal system is adversarial, and their job is to defend the secretary of state as vigorously as possible… as vigorously as the Republicans are pursuing their case.

McKenna does not have the luxury of picking and choosing cases to defend… he must defend the state from all lawsuits, and to the best of his office’s ability. When Christine Gregoire was attorney general, her office vigorously defended Tim Eyman’s stupid initiatives, as she was required by law. Hell… she even sued me to prevent me from putting my “horse’s ass” initiative on the ballot. That’s the type of impartial, nonpartisan execution of the office we’ve come to expect from our attorney general. And that’s the type of ethical and moral compass Rob McKenna clearly lacks.

When our state’s top law enforcement officer chooses to exercise his power for partisan political gain, all our citizens are at risk.