If you read the headlines in the MSM on May 2, you might have thought Dino Rossi scored a major legal victory in his lawsuit seeking to overturn the November 2004 gubernatorial election. But after studying the transcript of Judge Bridges’ rulings, my initial impression hasn’t changed: it wasn’t a very good day for Dino. While the Judge hasn’t entirely shut the door on the election contest, he certainly clarified the enormous burden Rossi must overcome in order to prove his case. The Judge also seems quite conscious of the inevitable appeal to the state Supreme Court, and has carefully attempted to insulate his decisions from being overturned.
The first ruling of the day was the one everybody anticipated the most, and it’s the only one that didn’t go entirely against the Republicans. The Democrats had filed a motion to have evidence of a statistical analysis excluded from the proceedings, claiming that such proportioning would be inconsistent with the standard of proof required to invalidate an election. Judge Bridges denied the motion, concluding that neither the statutes nor the courts had established guidelines in this area, and thus he would consider such evidence, subject to a “Frye hearing.”
The AP immediately broadcast a headline that implied the court had accepted the Republicans “proportional deduction” methodology, ignoring Judge Bridges’ huge caveat:
However — and this is an important however. The denial of this motion should not be interpreted as a pretrial ruling adopting the statistical analysis methodology, so everyone understands that, and that’s the ruling of the Court.
As I had previously mentioned, my fly-on-the-wall reported that the first issue the Judge addressed in conference was scheduling the Frye hearing, at which the Democrats will argue that the GOP’s methodology is bad science, and thus inadmissible — an argument I don’t expect Judge Bridges’ to entirely accept. After all, we can all imagine a situation where some sort of statistical analysis makes perfect sense; for example, if Yakima County’s touch-screen voting machines had somehow randomly erased 10,000 votes, it would be absurd to argue that this error did not cost Rossi the election.
Thus I do not think the Judge will generally rule out the use of proportional deduction per se, but rather decide that the evidence is not “clear and convincing” in this particular case… a shrewd judicial move. If he were to reject proportional deduction as a point of law, it would leave his decision much more vulnerable to being overturned on appeal. But if he rejects its application as part of his evidentiary findings, the decision is virtually appeal-proof.
Clever.
If you are a Rossi supporter, that’s where the good news ends, such as it may be. The rest of the day’s rulings overwhelmingly favored the Democrats.
The next ruling concerned a motion by Democrats that the Republicans must actually prove a felon voted, by finding a signature in a poll book or on an absentee or provisional envelope, rather than simply relying on the voter crediting records. Judge Bridges ruled in favor of the Democrats, stating:
The process of crediting voters with having voted is a post-election administrative exercise that this Court determines does not bear upon the authenticity of election results….
Republicans shrugged off this ruling as little more than a procedural hassle, and indeed it’s likely the vast majority of felons alleged to have voted, probably did cast ballots. (How many were really illegal votes or not, is another question.)
But if Rossi had planned to argue the same case in a court of law as he has in the court of public opinion, then this ruling represents a huge defeat, for it entirely undermines what’s left of the “total mess” theory… that there were hundreds of unexplained “voterless ballots.” This charge was based on the discrepancy between the number of voters credited with voting and the number of ballots cast, but since the court has ruled that voter crediting has no bearing on the authenticity of election results, the so-called “voter credit discrepancy” is entirely meaningless. (And, I should mention, it also totally validates my refutation of the Snark’s OCD-like focus on this issue.)
In launching his contest, Rossi emphasized a number of allegations in support of his contention that the election was a “total mess,” including: that thousands of overseas military voters had been disenfranchised, that King County had illegally enhanced and duplicated tens of thousands of ballots, and that King County tallied hundreds more ballots than voters. It is telling that none of these allegations will be argued in court, their case almost entirely relying upon a statistical analysis of illegal votes by felons, and unverified provisionals.
“Total mess”… my ass.
After a recess the Court addressed two dueling, related motions, that due to some inexplicable bungling on the part of Rossi’s attorneys, resulted in the kind of ruling that legal malpractice cases are made of. The Republican’s motion argued that upon a prima facie showing that a voter is a felon that had not had his rights restored, the Democrats should bear the burden of proving that the vote was not invalid. Meanwhile, the Democrats’ motion asked the Court to exclude all evidence of illegal felon voters unless the R’s could prove six elements, that the voter was 1) convicted of felony, 2) as an adult, 3) had not received a deferred sentence 4) had not had their rights restored, 5) had cast a ballot, and 6) had marked the ballot to indicate a vote for governor.
But before issuing his rulings, Judge Bridges joined Jim West in sharing with us a glimpse of his bedroom fetishes.
As I was lying in bed last night, I had one of the fears that I think attorneys have had often, I’m sure, did I miss something. Am I going to get in court and realize that there is an issue that I just completely overlooked. Mr. Foreman started out his presentation a few minutes ago with the burden of proof argument, that is, is it by a preponderance of the evidence or is it clear, cogent and convincing evidence. And in actuality, I hadn’t anticipated specifically that that argument was before the Court, based on the written materials that the Court had been presented.
Ohmigod… did Rossi’s attorneys really raise the all important issue of burden of proof, without first briefing the Court? Uh-oh….
I’ll make a ruling. If counsel wish, however, to readdress the issue, I invite counsel to do that.
Translation of obtuse legalese: “You fucking morons.”
Up until this point, Judge Bridges rulings had been rather brief, but perhaps spurred on by the GOP’s amateur performance in arguing what, by any measure, was a truly stupid motion to begin with, he started lapsing into schoolmarm mode. In denying the Republican motion he ruled that “a felony conviction, coupled with the absence of a certificate of discharge… does not establish a prima facie case of illegal felon voting.” He then went on to lecture the GOP attorneys on some legal fundamentals, explaining why the burden of proof rests with the contesting party:
The reasons the burden of proof does not shift is grounded in both our case law as well as our statutes, and the Court, of course, as are counsel, we’re all mindful that the courts of this state presume the certified results of an election to be valid unless the contrary is clearly established. And unless an election is clearly invalid, when the people have spoken their verdict should not be disturbed by the courts.
Just to be sure the Republicans got the point, he then went on to cite statute that stated that registration is presumptive evidence of a person’s right to vote, and that when a voter’s right is challenged, the burden rests with the challenger, and must be proved by “clear and convincing evidence.” The same standard, the Judge ruled, should apply when election results are challenged under RCW 29A.68.020.
Inasmuch as voting is a constitutional right, no vote should be held illegal and discounted absent clear proof that the voter was legally disenfranchised.
Any questions? I didn’t think so.
Next the Judge denied the Democrats motion, but after doing so, issued guidelines for establishing that a felon vote was illegal, pretty much along the lines of what they had requested: that the individual was 1) convicted as an adult, 2) of a felony, not a misdemeanor, 3) was not given a deferred sentence, 4) did not have rights restored, 5) cast a ballot, and 6) marked the ballot for governor. Of course, number 6 is impossible, which the Judge duly notes, but says: try anyway.
And then came the killer. (Yes, it gets worse.)
With respect to and responding to Mr. Foreman as to simply what is the burden of proof, I’m going to say it’s clear and convincing.
At this point, while MSM headlines are still proclaiming a big Rossi victory, his attorneys are probably shitting in their pants. “Clear and convincing” is a very high standard, and it doesn’t just apply to illegal votes, but to the entire case. So for those of you still clinging to the fantasy that the legal definition of “appears” is “appears to Stefan,” it’s time to start moving towards the fifth stage of grief.
And it only gets worse, for now the Judge starts to get a little improvisational. Judge Bridges remarks that he’s notices a theme to the Republicans’ arguments — that an election may be invalidated where the number of illegal votes exceed the margin of victory, without proving which party was credited with illegal votes — and he wants to get this issue “out of the way.” Judge Bridges explains that,
Washington’s election contest statutes clearly require the contestant to show illegal votes or misconduct changed the election result based on RCW 29A.68.110 and .070.
He cites the much debated Foulkes v Hayes case, where the court set aside an election based on evidence that ballots were fraudulently altered, without requiring proof that the result had changed. But, Judge Bridges notes, that Foulkes does not mention these specific statutes. Neither, he notes, does Hill v. Howell, where the court also suggested that “such a showing might not be required where fraud, intimidation or a fundamental disregard of the law had occurred.” Indeed, there’s only be one case where the courts did not require “proof of causation,” and that was Foulkes, a case that involved fraud.
But in our case here today, the petitioners have never alleged, to the Court’s knowledge, or even alluded to fraud or voter intimidation.
Hmmm. I’m guessing that may come as a shock to those of you who have gotten all your election contest coverage from talk radio and the right-wing blogs. So if that describes you, you may not want to read the following:
The rule urged by petitioners may be a wise one and a tempting choice for the Court. However, the Washington legislature has, by enacting RCW 29A.68.110 and .070, removed this choice from this Court’s discretion. The statutory command is clear and the Court should not invalidate the election upon proof the number of illegal votes exceeded the margin of victory.
The final issue of the day was a Republican motion to exclude all Democratic evidence of offsetting illegal votes and other irregularities, a gambit that perhaps was not quite the stupidest motion of the day, but certainly vied for the title of “Most Desperate and Futile.” Needless to say, the Judge denied the motion.
Conclusions
Rossi is toast.
It doesn’t take a genius to see which way Judge Bridges is leaning on this one, and “leaning” is a dramatic understatement… he’s virtually horizontal. Furthermore, he’s carefully constructing a decision that will be extremely difficult to appeal. Every motion to exclude evidence on a point of law has been denied; instead, the decision will be made based on his evidentiary findings.
Of course, none of this is a surprise… to me. I never thought Rossi had much of a case. There had been some thoughtful analysis coming from the other side, but most of it was based on a misinterpretation of the Foulkes decision, as I have previously pointed out here and here. And now even Rossi supporters are beginning to admit the inevitable.
Anyway, sorry to get so wordy. Now that all the evidence is in, and the standards of proof settled, I’ll follow up sometime soon with a brief overview.
