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[NWPT48]It was the best of times, it was the worst of times. Well… actually, it was pretty boring most of the time… but then that’s what one should expect from a typical trial of the non-TV variety.

But I do have one major observation from today’s proceedings, and that is that there are actually two different trials going on in Wenatchee: one is in a court of law, and the other is in the court of public opinion. And while the Republicans may have scored some points in the latter with their dramatic accusations of “sinister”, “fraudulent” efforts by Democratic officials to “steal the election”, I don’t think these charges will carry much weight in the former.

As Judge Bridges stated, fraud has never been a “causation element” in this case; the Republicans may be permitted to present evidence, and call it “fraud” if they want, but they will not likely be allowed to argue fraud as a basis for setting aside this election. I’m pretty sure the Republican attorneys understood this when they wrote their opening statement and proposed this dramatic new theory. But they pursued this strategy anyway, because, well… it plays well in the media, and quite frankly, what other choice did they have?

Unable to win their case on the strength of illegal felon votes, the Republicans chose to open the trial with spectacle, flinging unfounded allegations of fraud and corruption, in the hopes of grabbing the day’s headlines. This may have worked with the media, but it won’t get them very far with the Judge.

Republicans can use all the dramatic adjectives they want to describe the absentee ballot report, but it simply is not evidence of stuffed ballots on its own. What Rossi lacks is direct evidence of actual illegal ballots, and a plausible theory for how they might have been stuffed. These reconciliation discrepancies occurred across hundreds of different precincts, mostly one or two at a time, and each of these precincts had its own distinct ballot. To stuff ballots in this fashion would have required one or more individuals to covertly acquire hundreds of ballots, from hundreds of different precincts, hand mark them, and then deposit them back in their appropriate batches. The physical nature of this chore is enormous, and for this to occur undetected amidst the unprecedented scrutiny of this election, would have required a conspiracy at the highest level of King County Elections.

To accuse KC of stuffing ballots under these circumstances is akin to accusing somebody of murder, based on possible motive and lack of alibi… when there is no body, no murder weapon, and no evidence connecting the person to a crime. Given the very real problems KC had in reconciling their absentee ballots, could ballots have been stuffed? Absolutely. But “could’ve” is not going to win this lawsuit. To prevail in court, a petitioner can’t merely raise questions… they have to answer them.

The Democrats, for their part, had no such dramatic “revelations” to make… but then legally, they didn’t need them. The burden of proof rests firmly on the Republicans, and it’s proving to be a very heavy burden indeed. Thus both sides are playing to their strengths; while the Republicans pursue the easy PR victories, the Democrats continue to tediously and methodically deconstruct the Republicans’ case in court. It might not make for scintillating courtroom drama, but it does make for a winning case… at least, in a court of law.

And so I expect that as this trial unfolds — and Rossi’s case unravels — the Republicans will increasingly play to the cameras, while the Democrats ploddingly play to Court. In this fashion, both sides might eventually come out winners. And losers.

I’ll be on The Kirby Wilbur Show, 570-KVI, Tuesday morning at 7:00 am. I can’t imagine what we’ll be talking about.

And I’ll be back on The John Carlson Show at 3:15 (really), enjoying a pleasant conversation with Randy Stefan.

UPDATE:
For those who missed it (and care), here is a clip of this morning’s interview.

A bipartisan group of senators has struck a deal to avoid the “nuclear option” on the filibuster.

Under a compromise reached by an assortment of moderates, mavericks and senior statesmen just as the Senate was headed into its climactic overnight debate over the filibuster, three previously blocked appeals court nominees, Janice Rogers Brown, William Pryor and Priscilla R. Owen – will get floor votes. No commitment was made on the fate of two others, William Myers and Henry Saad.

In addition, the seven Democrats in the deal said they were committed to filibuster future judicial nominees only under “extraordinary” circumstances, while their Republican counterparts promised to support no changes in Senate rules that would alter the filibuster rule, effectively denying the 50 votes it would take to enact such a rules change.

Personally, I’m not so sure I like this deal, but I’m sure the theo-fascists on the religious right like it even less, so I guess anything that makes Bill Frist look like a weenie is fine by me.

In case you’re interested, here’s the pdf.

[NWPT48]The court is back in session, so I’ll just update this post if anything of importance happens, or I just plain get bored. You can also check out David Postman’s updates here.

Reminder: Goldy (and Snark) Radio
Stefan and I will be on The John Carlson Show, 570-KVI, at 3:15. I think we’re supposed to be discuss some election controversy or something, but I may just take the opportunity to finally, publicly declare my love for Stefan. Stay tuned.

Fraud
After months of focusing on the felon vote, the Republicans switched their focus to fraud, alleging that an 875-vote discrepancy between the number of absentee ballots counted in King County, and the number of absentee voters credited, constitutes evidence of fraud, specifically “ballot stuffing” by one or more KC officials. This allegation provides the basis for the R’s alternative theory

After the break, the Democrats immediately filed a motion that the fraud claim be excluded, as it was never part of any of the pre-trial pleadings. Judge Bridges gave the R’s time to prepare a written brief, and plans to rule on the D’s motion tomorrow, however he made a point of saying: “the court does not believe there is a fraud causation element to this case.” He also pointed out that the standard for fraud is “clear, cogent and convincing.” I think the R’s case fails on the “cogent” part alone.

Please put a bullet through my head (2:51 PM)
The only thing worse than reading a deposition yourself is having two attorney’s act one out in court, as Dale Foreman and Mark Braden are now tediously doing with Sam Reed’s deposition. I guess that’s why NBC never tried to spin off Law and Order: Deposition.

Carlson Show? (3:33 PM)
Well, John told me I’d be on the show with Stefan at 3:15, and yet I never got the call. Now John might claim this is the kind of human error or other irregularity that happens all the time, but if you ask me, it looks like fraud. Anyway, now I’m scheduled to be on at around 3:45pm. I think.

Defensiveness (4:03 PM)
Just finished with John. Boy do hate constantly being on the defensive, but then I guess that’s always been my role in this, huh? Anyway, I really don’t think the R’s made any ground today. So there.

Did Rossi suffer a “major blow”? (4:18 PM)
Hmm. Gregory Roberts of The Seattle P-I is reporting that the Republicans suffered a major setback today when the Judge ruled that they could not claim fraud. I think Gregory may have jumped the gun; Judge Bridges said that he would rule on this tomorrow, though I think he clearly telegraphed where he was leaning when he said “the court does not believe there is a fraud causation element to this case.”

[NWPT48]Anybody who has ever watched one of those TV lawyer shows knows the plot device where one side’s attorney gets up there and makes a rather convincing statement, only to have the other side’s attorney get up there and knock the wind out of his sails. That’s kind of what happened this morning in Wenatchee. Whereas the R’s Dale Foreman was struck an emotional chord with his description of a “sinister… case of election fraud”, the D’s Kevin Hamilton methodically deconstructed Rossi’s case, contending that the R’s have no plans to present the kind of clear and convincing evidence necessary to prevail.

As Hamilton points out, the R’s intend to spin circumstantial evidence of errors and irregularities into a tale of fraud and corruption, but in fact plan to present no direct evidence to support their case… no evidence of wrong doing on the part of candidates or their surrogates, no direct evidence of how disputed ballots were voted, no count of absentee envelopes, no poll book pages, no testimony from poll place workers or partisan observers… nothing. As Hamilton said “… serious claims require serious proof, and that is exactly the sort of proof that will not be included.”

I was particularly please to hear Hamilton take up a question I posed in my observations on the Foreman’s statement. If the R’s suspect there were really more absentee ballots counted than absentee envelopes received, why not just go back and recount the envelopes? Instead, the R’s plan to make their claim of ballot box stuffing based on innuendo, not actual evidence.

Of course, Hamilton could afford to be methodical and dispassionate because the law is on the D’s side, and the R’s thus have an extremely high burden to meet. I thought his legal arguments on the R’s efforts to have disputed provisional ballots and voter credit discrepancies included as evidence of illegal votes was particularly devastating to the Rossi’s case. Rather than rely on rhetoric, he just cited statute:

RCW 29A.68.100
Illegal votes — List required for testimony.

No testimony may be received as to any illegal votes unless the party contesting the election delivers to the opposite party, at least three days before trial, a written list of the number of illegal votes and by whom given, that the contesting party intends to prove at the trial. No testimony may be received as to any illegal votes, except as to such as are specified in the list.

Apart from the felon votes, the R’s simply have not met this standard. Hamilton argues that the court has no discretion, and thus can’t consider the provisionals and discrepancies as illegal votes, regardless of any other issue.

Hamilton then turned towards the felon votes, and the R’s proposed proportional reduction methodology. Again, he hammered on the fact that the R’s refuse to submit direct evidence of how these felons might have voted. As an example he mentioned affidavits from five felon voters from Gregoire precincts, who the R’s methodology would have predicted voting overwhelmingly for Gregoire. In fact, four voted for Rossi, and one for Bennett. The R’s claim you cannot trust the word of a felon, but Hamilton went on to say that they would back up the affidavit of one “WS” with color copies of his GOP membership card, a thank you letter from President Bush, and evidence that he contributed twice to the Rossi campaign.

It’s not that these five felons are significant in themselves, but it shows that once again, the R’s could have obtained direct evidence, but chose not to.

The Dems announced that they would make a motion to have the case dismissed at the end of the week, after the Republicans have presented their case. If their motion is rejected, then they plan on presenting evidence of offsetting errors and illegal votes…. over 700 votes by felons found in pro-Rossi precincts ignored by the R’s, and over 1800 mishandled provisional ballots from 14 counties. The D’s also plan to introduce evidence of legal ballots that weren’t counted due to errors by King County Elections officials… an additional 49 “Phillips” ballots, 204 provisionals that were set aside for more research, and a number of registered voters whose ballots should have been forwarded to other counties, but weren’t.

Too sum up the D’s statement, the R’s must prove illegal votes, errors and irregularities changed the outcome of the election by clear and convincing evidence, the highest standard in any civil case. And the R’s simply can’t meet this standard.

After Hamilton finished, Jeffery Egan made a statement on behalf of the Secretary of State, and he reiterated the high standard of proof:

Until proven otherwise, the last count was the correct count. Rebutting the evidence requires clear and convincing evidence that illegal votes, fraud or misconduct changed the results.
…
Misconduct is not enough. Effecting the accuracy is not enough. Changing the outcome is.

Enough said.

Finally, an attorney spoke on behalf of the Klickitat County Auditor, but really for all the state auditors.

Auditors… do the best they can to assure impartial and fair elections. Some made mistakes and failed to notice mistakes by others; human beings will do that. This trial is important because it will determine the outline of when judges get involved in the future. Will it be all close elections?

He suggested that such an outcome would be unfortunate as it would politicize the process and serve to taint and diminish the status of the courts. He urged the Court to avoid increasingly entangling the courts in future elections, but holding to a very high standard of evidence. He then cited some important statute himself:

RCW 29A.68.070
Misconduct of board — Irregularity material to result.

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

In what could be a very important distinction, he focused on the word “procure” arguing that the Legislature specifically used the word “procure” and not “cause”, the difference being that it implies intent.

So after listening to the opening arguments, my opinion has not changed. The Republicans will have a much harder time arguing their case in a court of law than they have in the court of public opinion.

UPDATE:
David Postman of The Seattle Times has been providing excellent coverage all day. You can read his latest update here.

[NWPT48]The Republican’s attorney just finished his opening statement, in which he describes King County Elections as “sinister”, “fraudulent”, and “outrageous”, and of course, claim that the election was “stolen.” Knowing that they don’t have enough felon, dead and double-voters (the only classes of contested ballots that are indisputably illegal) to reverse the election under their proportional deduction methodology, the GOP strategy is clear from the start. They intend to expand the definition of illegal votes, and attempt to prove fraud, or at least gross misconduct on the part of KC officials.

The Republicans will argue that all the provisional ballots improperly scanned at the polling place should be ruled as illegal, regardless of the number of provisional voters that were later verified by their signatures in the back of the poll books. They also will argue that the 875-vote discrepancy between the number of absentee ballots counted and the number of absentee voters credited, constitutes evidence of illegal votes. Indeed much of the focus thus far has been on the absentee ballot reconciliation process, claiming that it proves that ballots were “stuffed.”

Here’s a question: if the mail ballot reconciliation process is as inaccurate as the Republican attorneys claim it to be, how can it possibly be accepted as evidence of more ballots than voters? It’s kind of a curious dilemma… on the one hand they are claiming that the system was totally incapable of accurately tracking the receipt of absentee ballots, and on the other hand they are asking the court to except the number recorded as fact.

Hmm. I’ve got a solution.

The great thing about absentee ballots is that they produce a paper trail. We still have all the ballots. And we still have all the envelopes. Why not recount them, huh? Or are Rossi’s attorney’s suggesting that we’re better off using a statistical analysis to set aside an election based on speculation about questionable circumstantial evidence?

I’ve always been bothered by the allegation of ballot stuffing, because nobody has ever proposed a mechanism by which it might have occurred. Remember, each precinct has its own distinct ballot, and these so-called “voter-less ballots” are distributed throughout the majority of the county’s 2600 precincts. How exactly does one strategically stuff a ballot here and a ballot there without being caught? This differs very much from the Foulkes case where it was clear that ballots were actually fraudulently altered.

If the GOP can convince the court to include all of the disputed provisionals and the absentee discrepancy as illegal votes, and submit those with the felon votes to a proportional analysis, then they have a chance of prevailing… but they face huge hurdles. Judge Bridges has already ruled that he would not accept voter crediting records as evidence, and it appears that applies to absentee as well as polling place ballots.

As to the issue of fraud, well, neither Sec. of State Sam Reed nor KC Prosecutor Norm Maleng (both Republicans) believe KC officials committed fraud, and so I sincerely doubt the Court will either. And despite their protestations to the contrary, proving fraud is now a huge portion of their case. The Judge has made it clear that in the absence of fraud, they most prove Rossi actually one the election, not simply that the result is in doubt.

So it boils down to this: what is an illegal vote, and what is fraud?

I was planning to write a lengthy post in preparation for today’s start of the election contest trial in Chelan County Superior Court. But I thought this quote from the Republican’s pre-trial brief pretty much sums everything up:

Petitioners will ask the Court at the conclusion of the case to set aside the issuance of the certification of election to Gregoire, on the ground that, after deduction of illegal votes from both candidates, the evidence shows that Rossi received more legal votes than Gregoire, and on the alternative ground that as a consequence of the errors, neglect omissions and misconduct of election officials, the true outcome of the general election for the office of Governor cannot be known.

That’s the case in a nutshell. Rossi will attempt to prove that Gregoire received at least 130 illegal votes more than he did. And barring that, we’re back to the “total mess” theory. The twists are that Rossi’s attorneys will argue that all the mishandled provisional ballots (in King and Pierce) and all the voter credit discrepancies in King, amount to illegal votes. Furthermore, they are indeed going to argue that King fraudulently certified the election.

The GOP brief is impressive looking, as these things tend to be, but I expect the Democrat’s arguments to be just as persuasive. Keep in mind that the Republicans will be presenting their evidence first, so nobody should get too high or too low based on what comes out of the trial over the next few days. TVW will be providing gavel to gavel coverage, and I plan to watch as much of the tedious proceedings as I can. I’m also hoping to get periodic reports from a couple flies on the wall, and I’ll share interesting tidbits (assuming there are any) as soon as they come in.

Man, I can’t wait for this damned thing to be over so that I can spend my time writing about important things.

The American Psychiatric Association (APA) approved a resolution at its annual meeting, urging legal recognition of same-sex marriage.

The statement supports same-sex marriage “in the interest of maintaining and promoting mental health.”
…
The psychiatric association’s statement was approved by voice vote on the first day of its weeklong annual meeting in Atlanta. It cites the “positive influence of a stable, adult partnership on the health of all family members.”

The resolution recognizes “that gay men and lesbians are full human beings who should be afforded the same human and civil rights,” said Margery Sved, a Raleigh, N.C., psychiatrist and member of the assembly’s committee on gay and lesbian issues.

Thirty years ago, the APA still defined homosexuality as a mental disorder, and if the resolution is approved by its directors in July, it will become the first major medical association to endorse gay marriage.

Stefan over at (un)Sound Politics wants you to cancel your subscription to the The Seattle Times. Why? Because he doesn’t like what they are reporting.

The day before the election contest trial starts in Chelan County Superior Court, the Times leads its front page with the headline, “Toss out felon vote, Gregoire still wins.” The headline is pretty self-explanatory, and not surprising. Analyzing the felons lists from both parties, using the GOP’s own proportional deduction methodology, the Times found that Gov. Gregoire would still hold a 112-vote lead. But their analysis went further.

An analysis of a random sample of names on the GOP list submitted in March found that about 1 in every 9 names was wrongly included

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Thursday the WA state GOP filed a lawsuit in federal District Court seeking to throw out Initiative 872’s “top-two” primary. Both the Democratic and Libertarian parties quickly filed motions to join the suit, establishing this as one of those rare bipartisan issues.

Personally, I hope the parties succeed. As I’ve previously stated, I always thought the old blanket primary sucked, but the Louisiana-style top-two primary is even suckier. The purpose of a primary is for the parties to choose their own nominees, and our state’s penchant for nonpartisan elections is downright delusional.

But as the parties pursue their legal strategies, I thought it might be interesting to point out a curious and little-known quirk about I-872: it didn’t actually, technically, get rid of the Montana style ballot. Take a look at the post-872 RCW:

RCW 29A.36.104
Partisan primary ballots–Formats.

Partisan primaries must be conducted using either:

(1) A consolidated ballot format that includes a major political party identification check-off box that allows a voter to select from a list of the major political parties the major political party with which the voter chooses to affiliate. The consolidated ballot must include all partisan races, nonpartisan races, and ballot measures to be voted on at that primary; or

(2) A physically separate ballot format that includes both party ballots and a nonpartisan ballot. A party ballot must be specific to a particular major political party and may include only the partisan offices to be voted on at that primary and the names of candidates for those partisan offices who designated that same major political party in their declarations of candidacy. The nonpartisan ballot must include all nonpartisan races and ballot measures to be voted on at that primary.

[2004 c 271

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I got another one of those nasty emails yesterday warning me that there will be a price to pay for my “perfidy” (they get extra credit for vocabulary). Well, I hate to put off the inevitable, so as a public service to my self-appointed inquisitors, I thought I’d share my busy schedule for the coming week.

Here’s the weekly sandbox, where off-topic comments are always on-topic.

George W. Bush and his gang of neocon warmongers have destroyed America’s reputation. It is likely to stay destroyed, because at this point the only way to restore America’s reputation would be to impeach and convict President Bush for intentionally deceiving Congress and the American people in order to start a war of aggression against a country that posed no threat to the United States.

America can redeem itself only by holding Bush accountable.

As intent as Republicans were to impeach President Bill Clinton for lying about a sexual affair, they have a blind eye for President Bush’s far more serious lies. Bush’s lies have caused the deaths of tens of thousands of people, injured and maimed tens of thousands more, devastated a country, destroyed America’s reputation, caused 1 billion Muslims to hate America, ruined our alliances with Europe, created a police state at home, and squandered $300 billion dollars and counting.

America’s reputation is so damaged that not even our puppets can stand the heat. Anti-American riots, which have left Afghan cities and towns in flames and hospitals overflowing with casualties, have forced Bush’s Afghan puppet, “President” Hamid Karzai, to assert his independence from his U.S. overlords. In a belated act of sovereignty, Karzai asserted authority over heavy-handed U.S. troops whose brutal and stupid ways sparked the devastating riots. Karzai demanded control of U.S. military activities in Afghanistan and called for the return of the Afghan detainees who are being held at the U.S. prison in Guantanamo Bay in Cuba.

I had to laugh last year when Tim Eyman obliquely referred to the troika of me, activist Steve Zemke, and NW Progressive Institute founder Andrew Villeneuve as his “longtime opponents.” Steve and I had only been nipping at Tim’s heels for about a year; Andrew was the veteran of the group, launching his anti-Eyman website, Permanent Defense, back in February of 2002.

One of the truly gratifying aspects of this blog is the expertise offered by readers, both in the comment threads, and through private email. For example, my analysis of the legal issues surrounding the election contest lawsuit would not be nearly so coherent (or accurate) without the invaluable help of Lawyer X. Likewise, I have been greatly aided in understanding the intricacies of the GOP’s proposed “proportional deduction” by a reader whom I would call Statistician X… if not for the fact that you all know him as DJ, a frequent contributor to the comment threads.