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I’ll be on the Kirby Wilbur Show (KVI-570) at 8:30 am, wrapping up our election contest discussion. Say what you want about KVI (four-letter words are often aptly descriptive,) but both Kirby and John have been very gracious in inviting me to air my liberal perspective.

And while we’re on the subject of wrap-ups, Evergreen Politics reminds us that not only did Rossi lose, but that Christine Gregoire won. Lynn Allen has posted a brief interview with our duly elected Governor, in which she talks about her first five months in office, and her plans for the rest of her term.

UPDATE:
For those introduced in abusing me for an embarrassing slip of the tongue, here’s the audio from my somewhat jet-lagged appearance with Kirby this morning.

[NWPT48]Judge Bridges bitch-slapped Dino Rossi.

There’s really no other way to interpret the decision he issued today in the election contest lawsuit. Apart from a few lines at the start, criticizing the “culture” of King County Elections, about the only positive note Republicans can take out of the Judge’s ruling is that he didn’t impose Rule 11 sanctions on the Rossi camp for bringing a frivolous lawsuit. I’m guessing Timothy Borders et al were a bit nervous there for a few moments, waiting for Judge Bridges to order them to reimburse the Dems for legal costs.

“Dismissed with prejudice.”

No… the Democrats didn’t get off on some technicality. The Judge ruled that the Republicans resoundingly failed to prove their case. He ruled that there was no evidence ballots were changed or that ballot boxes were stuffed or that legal votes were removed from one candidate or the other. There was no evidence that Gregoire engaged in wrongdoing, or that election officials committed fraud… no evidence of intentional misconduct, partisan bias or an attempt to manipulate the election… and no evidence to question ballot security, or that reconciliation errors were anything more than just that. There was no evidence presented as to how felons and mishandled provisionals might have voted, or even if they had marked a ballot for governor at all. Indeed: “There is no evidence in this record that Ms. Gregoire received any illegal votes.”

And after rejecting the Republicans’ proposed “proportional deduction” methodology as “unscientific”, Judge Bridges twisted the knife:

“An election such as this should not be overturned because one judge picks a number and applies a proportional deduction analysis. To do so within the context of the facts of this case would constitute the ultimate act of judicial egotism and judicial activism.”

This was an elected judge from a heavily Republican county, speaking directly to Republicans in words he knew they would understand. “Judicial activism” is a phrase that resonates with conservative Republicans, and he made a point of explaining to voters that this was exactly what Rossi’s attorneys had asked him to exercise.

Judge Bridges had clearly laid down in pre-trial rulings the standard of evidence and burden of proof he would require, but for many of their claims, Rossi’s attorneys failed to even try to meet them. Thus no one should be surprised by the overwhelmingly one-sided nature of today’s decision.

No one except perhaps for the Rossi faithful who chose to get their “news” and “analysis” exclusively from right-wing talk radio and blogs like (un)Sound Politics. Oh, I don’t expect conservative Republicans to rely on an unabashedly liberal blog like HA for their election contest coverage (though I think it’s fair to immodestly point out that I was proven absolutely right on almost every single legal point.) But you would have had to have totally dismissed the extensive coverage in the MSM to go into this morning’s ruling with more than the tiniest shred of hope that Rossi might prevail in court. He had no case… and Judge Bridges wasn’t shy about pointing that out.

And that is why it is no surprise that Rossi has decided not to appeal the decision to the state Supreme Court, for to do so would have invited a judicial smack down that would have made Judge Bridges’ legal kick-in-the-groin look like a tap on the tuchus from my 87-year-old bubbie. As I had previously predicted, the cherry-picked judge from conservative Chelan County was careful to structure his ruling to make it virtually appeal proof. He admitted nearly every piece of evidence proffered by either side, and then made his decision by applying established precedent to findings of fact. Appellate courts nearly always accept the lower courts’ evidentiary findings, and by limiting the universe of illegal votes to a number more or less split between the two sides, the Supremes would have been as hamstrung by the evidence as Judge Bridges’ was by the statute.

So Rossi has ended his dishonest contest, not out of some desire to heal the state or personally move on, or even out of grudging respect for the rule of law — he ended his contest because he had no choice. Given the magnitude of his legal loss, and the manner in which the ruling was structured, he not only had no hope of prevailing on appeal, he had no hope of convincing anybody but the most ardently blind true-believer that even he believed he had any hope of prevailing in court.

Shortly before I boarded my plane, I called Andrew at Northwest Progressive Institute, and asked him to post an update to HA if Rossi conceded. The Republicans had always promised to appeal, and I had no advance knowledge to the contrary, but the Rossi folk had always shown a knack for savvy PR moves, and it seemed clear to me that quickly ending this hopeless fight was the savvy move to make in light of their lopsided legal loss. But while I somewhat expected a concession, when I read the quotes from his news conference, I was disappointed.

Rossi said because the “political makeup of the Washington Supreme Court” makes it “almost impossible to overturn this ruling, I am ending this election contest.”

To blame his concession on a partisan court strikes me as both insolent and ungracious, at a time when a true statesman would have been more… well… statesmanlike (think Al Gore’s concession in 2000,) whatever the personal sacrifice and disappointment. I expect some of his faithful supporters to refuse to accept the facts — and perhaps Rossi himself really does believe that this was a stolen election — but a true leader must be bigger than partisan politics or personal ambition… and today, Rossi’s statements made him look very, very small indeed.

I’ve said it before and I’ll say it again: I empathize with the disappointment and frustration and cynicism many Rossi supporters must feel. If the shoe were on the other foot I might have been skeptical myself… although I hope that in the end I would have accepted that the facts of this case simply did not bear out the suspicions. But what really disturbs me about the angry rhetoric that continues to flow from the state GOP and its surrogates, is the complete and utter lack of empathy coming from their ranks.

As a Democrat, I am offended by the assumption that I am somehow less moral, less ethical, less honest and less capable than my Republican counterparts. I resent the oft-repeated notion that Democrats are more likely to cheat, and that we cannot win elections without doing so. I am in fact angry that Republicans would accuse Democrats in a court of law, of “stealing” an election… without even bothering to present any direct evidence to support their claim.

The contest statute is intended to remedy those rare elections where it is clear that the wrong candidate was declared the winner. It is not intended to be used merely as a vehicle for running a six-month PR campaign designed to extract a political price from the opposition for crimes they did not commit.

Yes, the Republicans had every right to pursue an election contest, but in dismissing their claims “with prejudice,” Judge Bridges made it clear that it was a right the Republicans cynically abused. Dino Rossi owes Christine Gregoire, Democratic voters, and the people of Washington an apology.

[NWPT48]Rossi claims “dismissed with prejudice”…! (More coming….)

UPDATE:
Oh my God this could not have gone an worse for Dino Rossi and the Republicans. After knocking down the Republican case, point by point, Judge Bridges gave the ultimate editorial comment:

“An election such as this should not be overturned because one judge picks a number and applies a proportional deduction analysis. To do so within the context of the facts of this case would constitute the ultimate act of judicial egotism and judicial activism.”

That’s right… Republicans were demanding an act of judicial activism.

Judge Bridges rejected “proportional deduction” as “unscientific”, ruling in favor of the Democrats in the Frye hearing. He also rejected the notion that voter crediting could be used as evidence of illegal votes. He said that there was no evidence that Gregoire received any illegal votes, but accepted the Democrats felon testimony giving 4 to Rossi. So at the end of the day, Gregoire expanded her margin from 129 to 133.

Rossi is screwed. The best thing he can do now is figure out a way to back out, and decline to appeal.

[NWPT48]Just a few notes, thoughts and observations this morning, as we await Judge Bridges’ ruling. I’ll update this post as/if things occur to me.

Kirby Wilbur at 8 am
Um… I’ll be on Kirby Wilbur at 8 am, KVI-570. We’ll be sharing cherished family recipes discussing this election contest thing.

Watch/listen to the ruling live on TVW
Tune in to Judge Bridges’s ruling live, streaming on the internet at TVW.org. I’m sure your boss won’t mind.

Am I a liar or fool? (6:23 am)
David Postman in the Seattle Times reprinted this quote from an editorial in the Wenatchee World:

“We do not know how Judge John Bridges will rule Monday,” the paper wrote. “Anyone who says they know is, as they say, a liar or a fool or both.”

Hmm. I’ve made my prediction. If I had to choose between the two, I’d say I’m a fool.

Why am I so foolishly confident? (7:17 am)
Judge Bridges issued three pre-trial rulings that made it exceedingly difficult for Rossi to prevail based on the evidence presented: 1) Rossi needs to prove that he would have won, but for illegal votes and other irregularities, 2) the standard of proof is “clear and convincing,” and 3) voter crediting will not be accepted as evidence of illegal votes.

Unless Judge Bridges reverses himself on the first ruling, he would have to reverse himself on the other two to give Rossi a fighting chance. I saw no indication (and little argument) that he might reverse himself on any of these rulings.

Post-ruling coverage (7:46 am)
FYI, I’m in Philadelphia, heading back to Seattle this afternoon. The Judge is scheduled to give his ruling at 9 am Pacific, and I must leave for the airport by 11 am. Assuming the TVW feed isn’t overloaded, I plan to be listening in, post a news bulletin live, then post a brief, knee jerk analysis before heading out. I’ll post a more in depth piece later tonight, after I’ve had a chance to read the MSM and other blogs.

I’m all a titter (8:55 am)
Five minutes until D-Day (the “D” stands for “Democrat”.) Perhaps I’ll post some comments here, as the Judge delivers his decision, depending how suspenseful he makes it.

Ruling in progress… (9:15 am)
Judge sends a message by saying he will not send a message:

“I have been asked in closing arguments to send a message. I’m going to decline that invitation. This court is not in a position to fix deficiencies in the election process that this court heard about over the past nine days.”

Judge rejecting proportional deduction? (9:22 am)
Says neither side demonstrated felons voted for a gubernatorial candidate.

No evidence that errors were result of bias (9:33 am)
And no evidence of ballot stuffing.

Judge rejects proportional deduction! (9:36 am)
Unscientific. Rossi lost Frye hearing.

[NWPT48]I was planning to post a detailed analysis of the election contest trial in advance of tomorrow’s ruling, but really… why bother? We all know Dino Rossi is going to lose, and we’ll all have plenty of time to hash and rehash the Judge’s written opinion between now and the Supreme Court’s inevitable decision to uphold it. So I just want to focus on a couple of legal points that I believe will play strongly into Judge Bridges’ ruling.

Throughout the proceedings the Republicans have relied heavily on Foulkes v. Hays, a case where an election was tossed out due to altered ballots. I have written extensively on Foulkes (for example, here, here, and here,) so I do not need to readdress it again, except to reiterate that it simply does not apply to this case in the way Rossi’s attorneys wish it would. And even if it did (and Becker v. Pierce County strongly suggests that it does not,) the Republicans have failed to prove that any fraud occurred.

Instead, after offsetting illegal votes and a few hundred mishandled provisional ballots, the Republicans have been forced to settle on their “total mess” theory… that official neglect and other irregularities — mostly in King County — has made the true winner unascertainable. Much of their focus has been on the failure of King and other counties to accurately reconcile the number of ballots cast with the number of voters credited. Republicans argue that King County failed to follow the law in reconciling the election and reporting the results to the canvassing board… and that this alone is reason enough to set aside the election.

But I’m guessing that in addressing this issue, Judge Bridges might cite McCormick v. Okanogan County:

In MURPHY v. SPOKANE, SUPRA at 684, we quoted with approval the statement of the rule found in McCrary on Elections 225:

” “If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits or affects the result of the election, or not.

Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the legislature.

But if, as in most cases, that statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.”

The point is that even if King County Elections failed to follow the law — a point I am not conceding — these technical violations do not amount to grounds for setting aside the election unless it can be proven that they materially contributed to swaying the results. Since these alleged violations all occurred during reconciliation and voter crediting, they could not have directly impacted the vote count.

What Rossi has asked the court to do is set aside an election due to official error or neglect, even though there is no evidence that these errors actually affected the outcome. If he were to succeed it would set a precedent in which all extremely close elections would end up in court… indeed, most would be set aside because the number of errors will almost always exceed the margin of victory.

As I have stated before, implicit in our election statutes is both an acknowledgment that elections are imperfect, and a pragmatic preference of finality over certainty. The recount statute defines an endgame for close elections, and the contest statute makes overturning the final result extremely difficult. This is not only intentional, it is necessary to assuring a stabile government.

Reading through Judge Bridges’ previous rulings it is clear that he understands the legislative intent. There is nothing clear or convincing about Rossi’s claims. And there is no way the Judge can rule in his favor.

Two weeks ago, after Newsweek bowed to pressure and retracted a story that U.S. interrogators at Guantanamo had flushed a copy of the Koran in a toilet, White House press secretary Scott McClellan continued his offensive against the media, demanding that Newsweek attempt to “repair the damage” it caused to the reputation of the United States.

“I think Newsweek can do that by talking about the way they got this wrong, and pointing out what the policies and practices of the United States military are when it comes to the handling of the Holy Koran. The military put in place policies and procedures to make sure that the Koran was handled — or is handled with the utmost care and respect.”

So then I suppose McClellan would encourage Newsweek to accurately explain our military’s “policies and procedures”… by covering a Pentagon report quietly issued late Friday, that documents similar such desecration of the Islamic holy book.

The latest confirmed abuses are contained in a report put together by Brig. Gen. Jay Hood, the commander of the detention center in Cuba.

They include: splashing urine on a prisoner and his Qur’an, stepping on and kicking the Qur’an, throwing water on it, and scratching an obscenity on the inside cover.

Oh. So they didn’t actually desecrate a Koran in the toilet, but they did splash pee and water on it. Well that’s entirely different. Man those moslems are touchy.

Or maybe I’m just taking all this out of context. Better ask McClellan.

On Saturday, a day after the Pentagon described a series of cases of U.S. personnel mishandling the Qur’an, the White House downplayed the issue.

“It is unfortunate that some have chosen to take out of context a few isolated incidents by a few individuals,” presidential spokesman Scott McClellan said in a statement.

Yeah. Um… eat me, Scott. I think former Clinton press secretary Joe Lockhart has you pegged on this one:

“I think on this issue, they fell into a trap,” Lockhart said. “They saw a way to push back on a damaging story by making it look like it was just out-of-control journalists, and now they’ve had to admit that it has happened.”

McClellan’s statements after the Newsweek report left an impression that no desecration at all had occurred at Guantanamo, Lockhart said.

“While the news organization got an example wrong, they got the practice right,” he said. “I think certainly the public is within their right, in this case, to believe they were misled.”

Misled by the White House, that is, not Newsweek.

In response to a request from the St. Petersburg Times, the Florida Department of Children and Families released 70 pages of documents in the Terri Schiavo case, that discredit Gov. Jeb Bush’s attempt to reinsert a feeding tube based on “new” allegations of abuse.

As the day approached in which Terri Schiavo’s feeding tube was to be removed, Gov. Jeb Bush claimed there were new and compelling allegations of abuse or neglect that the state Department of Children and Families had to investigate.

That effort led to a dramatic showdown between the governor and the Pinellas-Pasco circuit judge who ordered Schiavo’s feeding tube removed on March 18. Bush and DCF continued to seek its reinsertion, claiming the 30 or so new complaints had to be probed.

But documents released by DCF Friday reveal few fresh allegations that Schiavo was abused or neglected. Investigators wrote that there were “no indicators” of abuse in any of the cases.

According to documents, the only new complaint involved a nursing assistant “abusing” Schiavo with aromatherapy.

Apparently, Jeb Bush is just as big an unprincipled liar as his brother, and there should be a price to pay for the way he and other Republicans attempted to exploit the Schiavo tragedy for partisan political gain.

After our last joint appearance on the John Carlson Show, our good friend Stefan graciously visited HA and contributed the following comment:

Please do put up the complete clip, David. [assuming you don’t edit out my actual words, as you did in your post]. My disappointment with having you speak on behalf of King County Elections is that you’re not an expert on their procedures and you’re not accountable for simply making stuff up, which you were doing today. I specifically told John that I’d prefer to confront an actual elections official. I only want to pick on someone who’s bigger than I am, not just some insignificant fool who doesn’t know what they’re talking about and just makes stuff up.

Well, I’m always happy to oblige such a polite request, and thanks to Andrew at Northwest Progressive Institute, you can listen to the entire audio clip here. Hmm. Listening to the interview, I’m beginning to think Stefan doesn’t respect me.

“This is frankly one of the problems with having David Goldstein on, because he can say, he can make up all kinds of stuff and is not accountable.”

(I think he may have been attempting to make another one of his puns on my last name, but I can’t really tell from the clip.)

As Stefan helpfully points out, I am not an expert on election procedures or the law. And you know what? Neither is he.

What Stefan really objects to is having an opponent who is actually willing and able to fight back. He’d rather talk to election officials, fearful for their jobs, barred from taking partisan positions, and unschooled in the art of rhetoric, because his arguments simply don’t hold up to vigorous debate.

And quite frankly, I find his protestations rather cowardly. But listen to the clip and decide for yourself.

[NWPT48]Monday morning Judge Bridges will deliver a ruling denying Dino Rossi’s petition to set aside the results of the gubernatorial election. I say this with unwavering confidence, secure in the knowledge that both statute and case law are firmly on Governor Gregoire’s side.

The only real suspense is over the character of the editorial comments in which he will couch his decision. Will he admonish elections officials for sloppy work? Will he scold Rossi’s attorneys for making unsubstantiated claims? Will he defend his ruling by pleading he was handcuffed by the statute, or will he defend the legislative pragmatism, embodied in statute, that prefers finality over certainty?

Or will he merely apply the law to the evidence and leave the editorializing to editorialists like me?

I plan to do a more complete trial wrap-up, but jet-lagged and TVW-feed-addled, I’m afraid those thoughts will have to wait until later this weekend to find their words. In the meanwhile, I’d just like to express the sincere sentiment that whatever the ruling, I can’t wait for the day this goddamn election contest is over and done with. And unfortunately, I’m guessing Monday ain’t it.

Man… I can’t imagine what people might want to talk about. Go at it.

Yesterday was a bad day for Feisty, my petulant little puppy. We awoke at 6 am to empty her young bladder, but on our way to the backdoor she took a shortcut on the living room rug. Later, annoyed with me for paying more attention to Kirby Wilbur than to her, she made every effort to voice her opinion on the air. The difficult behavior continued. She chased the cat. She dug a hole in the backyard, caking herself with mud. And when not chewing on my hands, ankles and feet, she destructively masticated whatever piece of furniture or household object was most convenient.

Finally, at the end of this long, tiring day, I returned Feisty to the family from whom we had adopted her, locked her in the kennel with her last remaining litter mates, got back in the car, and drove off.

Assuming dogs have the ability to reason (and for rhetorical purposes we’ll leave that assumption unchallenged,) one could hardly blame her for having the impression that, angry and exasperated, I had abandoned her. That would be a logical conclusion… at least, for a dog.

Likewise, one can hardly blame ardent Dino Rossi supporters for believing that Democrats stole the gubernatorial election. After twenty years of Democratic governors, it looked like the GOP had finally found their champion. Rossi came out ahead in the first two counts, only to lose a heartbreaker of a hand recount by the tiniest of margins. And in the aftermath of the election it was revealed that there were hundreds of errors and illegal votes statewide, including felons voting, mishandled provisional ballots, uncounted valid ballots, and an inability to entirely reconcile ballots cast with voters credited.

To be honest, if the shoe were on the other foot, I’d be suspicious too. Just like poor, abandoned Feisty.

But what the unhappy puppy doesn’t realize, is that I had long planned to be out of town this weekend to attend my niece Ariel’s Bat Mitzvah, and had arranged to return Feisty for a few days as a condition of the adoption. Tuesday morning she will be back at home, happily peeing on the rug and chewing my limbs and furniture.

I think you all know where I’m going. My dog’s conclusion, however logical, was misguided. Likewise, so is the fervor of Rossi’s dogs of war. Whatever empathy I might have for them, their suspicions have simply not been proven by six months of investigations and two weeks of courtroom non-drama. There were errors. There were illegal votes. But there is absolutely no evidence that any of these advantaged one candidate or the other.

That the margin of victory was too far within the error rate to confidently determine the winner was never in doubt — that is true of all extremely close elections. What is lost in all the rhetoric is that the legal question at stake in this trial was never about whether errors occurred in King County or elsewhere… it is about whether these errors demonstrably changed the outcome. Dino Rossi lost the election by the rules in place… rules that anticipate that no election is perfect. And as in all elections, the winner was determined by the ballots counted, not the ballots cast.

That may strike some as unfair, but that is reality.

My guess is, that whatever her current state of mind (again, assuming she has one,) upon my return Feisty’s understandable suspicions will be quickly forgotten. And that, I’m afraid, is where my admittedly tortured analogy ends.

[NWPT48]Court is back in session, and the Democrats are expected to rest their case by noon. Yeah, I know… I wrote the exact same thing yesterday… but this time I mean it. Really. If you don’t believe me, check out the latest trial update from David Postman in The Seattle Times.

And speaking of Postman
I found this little comment in Postman’s first update of the day, particularly telling:

The courtroom crowd is as sparse as it’s been. No final day surge in attendance, except for a small increase in the press section.

I’m sure a few more people will wander into the courtroom this afternoon for the closing arguments, but the drop in attendance is indicative of the fact that after the Republicans failed to present any evidence of fraud or ballot stuffing, few now expect the trial to produce anything dramatic… you know, like setting aside the election.

Courtroom fireworks! (9:55 am)
Hah-hah… made you look! Actually, all they’re doing right now is admitting evidence. To give you an idea how boring this entire case is, they are up to exhibit number 12,013.

Apparently, when they’re done with this, the Republicans have a couple more rebuttal witnesses. Closing arguments are scheduled for after lunch.

Damn. Postman scoops me (11:42 am)
One of the “rebuttal witnesses” didn’t go so well for Dino Rossi. But since David Postman already reported everything I was going to report, I might as well just blockquote his update:

Deputy state elections director John Pearson, on the stand as a rebuttal witness for Republicans, said that Republican allegations of election fraud and wrongdoing upset members of the “election community” in the state, including himself.

“I certainly shared the frustration and frankly the anger,” Pearson said.

Pearson said specifically that he, as a former military voter, objected to Republican claims that military ballots were not being sent to overseas voters because he knew that was false.

He also cited Republican claims that ballot accounting problems indicated fraud, saying, “We knew there were good reasons why those numbers did not balance.”

‘Nuff said.

Short lunch break (12:15 pm)
Court has recessed until 1:00 pm, half the usual allotted time. Judge Bridges has stated that they would definitely get to closing statements today.

It is interesting to note that contrary to his pattern of the past two weeks, Judge Bridges has routinely sustained Democratic objections during the GOP’s questioning of their rebuttal witnesses. This could be because he’s just getting testy with the Republicans… or it could be that seeing as lenient as he has been, the GOP attorneys have been pushing their luck.

It kind of makes sense for the press to testify (1:27 pm)
Democratic attorney Hamilton has threatened to call David Postman to stand. Man this is getting meta.

Vance, lies and video tape (1:38 pm)
The Democrats just introduced a video of GOPolitburo Chair Chris Vance, in which he vouched for the integrity of elections in King County and Washington state. The tape was from a November 9, 2004 interview on TVW, in which Vance touted his intimate knowledge of KC Elections, having twice served on the canvassing board while a council member. On the subject of election fraud, Vance definitively states:

“I know that there is no fraud going on, nothing nefarious in Washington state. […] I’ve been as close to it as you can be, and there is no truth to it, at least not here.”

This statement of support was made at a time when it looked like Dino Rossi would win by about three thousand votes. Of course, once it became apparent that Christine Gregoire won, his opinion changed.

John Carlson at 3:15 (2:30 pm)
The GOP finished there rebuttal (finally,) and the court has recessed for 10 minutes. When we come back, closing arguments will commence. Of course, I’ll probably miss a chunk of the closing arguments, while I’m arguing with Stefan on the John Carlson Show, KVI-570, at 3:15.

It’s almost over (2:58 pm)
Closing arguments are underway. Republican attorney Harry Korrell sounds much more subdued in his closing than Dale Foreman was in his opener. He expects to go about 30 minutes.

KVI is covering the arguments live, so Stefan and I won’t be coming on the Carlson Show until after they’ve finished… I’m guessing closer to 5 pm.

Republicans close (3:28 pm)
The Republicans have finished their closing arguments.

I know I’m biased (hey… I’ve always been up front about that,) but I found Korrell’s summation to be disappointing in both form, content and delivery. To borrow Stefan’s paraphrasing schtick: “It’s all King County’s fault… it’s unfair to the rest of the state… and if you don’t set this election aside King County will never mend their ways.”

The GOP has always argued that with more errors than the margin of victory, the court is compelled to set aside the election… which I suppose might be a good argument if the Judge hasn’t repeatedly disagreed with them on this point of law. One of the more curious arguments is that surely, the legislature couldn’t have intended to allow an election like this stand… yet they’ve never gone back to the history of the statutes to argue legislative intent. I can only assume that is because the record wouldn’t support their interpretation.

Jenny Durkan is now giving the Democrats closing arguments.

If I need a lawyer, I’m hiring Jenny Durkan (4:13 pm)
She was great in cross-exam, and she’s great in summation. Yes, I’m biased, but she is in the process of tearing apart the Republican case. She makes Harry Korrell look like an amateur.

The most noticeable difference is that Durkan has spent much more time addressing both statute and case law (not to mention logic.) This is because both statute and case law — as well as Judge Bridges’ previous rulings — support the Democrats’ arguments. Korrell on the other hand, spent much of his time rehashing the litany of errors and illegal votes, adding little analysis to the evidence already admitted.

More later…

Secretary of State refuses to take sides (5:18 pm)
Arguing on behalf of the Secretary of State, attorney Thomas Ahearne refused to take sides and recommend a ruling to the court. However, much to the dismay of the Korrell, he did take issue with many of the Republicans’ mischaracterizations of the election, including the issues of military ballots, duplication and enhancement, and ballot security.

You get what you pay for, and the Building Industry Association of Washington (BIAW) certainly bought themselves a nifty gift in Attorney General Rob McKenna. The other day I posted excerpts from a McKenna speech praising the BIAW’s efforts to overturn the gubernatorial election… an episode of partisan ass-licking made even more stunning by the fact that the AG is supposedly charged with defending the Secretary of State from Dino Rossi’s BIAW-backed lawsuit.

Well McKenna is the type of AG who backs up his words with actions… at least when it comes to pandering to his financial and political patrons. The BIAW spent hundreds of thousands of dollars on independent expenditures supporting McKenna’s election, and as partial payback he’s hired BIAW attorney (and former Sound Politics commentator) Tim Ford to a high-level position in the Solicitor General’s office… a position, by the way, for which it is not at all clear he is qualified.

According to the AG’s Communications Director Greg Lane:

The Solicitor General Team was created within the AGO in 1993 to provide the following services:

• Coordinate cases at the appellate levels in both state and federal courts, and conduct appellate assistance and review programs for the Attorney General’s Office;
• Coordinate the office’s involvement with cases in the U. S. Supreme Court;
• Be primarily responsible for the preparation of formal Attorney General Opinions;
• Coordinate the office’s involvement with amicus curiae “Friend of the Court” briefs in all courts;
• Carry out the Attorney General’s duties with respect to the preparation of ballot titles and explanatory statements, and represent the state in litigation involving the powers of initiative and referendum;
• Coordinate legal advice on issues of statewide significance;
• Chair the Ethics Committee, the office’s primary resource on matters of professional responsibility;
• Serve as the office’s liaison to the state bar association; and
• Serve as legal counsel to the Secretary of State, Lieutenant Governor, and the Administrator for the Courts.

Of course it’s the last bullet point that I find particularly troublesome, as McKenna has hired Tim Ford, an attorney for one the major forces behind Rossi’s lawsuit, to join Assistant AG Jeff Evan on the “team” responsible for defending the Secretary of State from the very same lawsuit. This is also the “team” that is charged with conducting cases at the appellate level, and thus will inevitably follow the election contest to the Supreme Court.

Now I doubt even McKenna would be so blatant as to assign Ford to this particular case. And my understanding is that with little or no appellate experience he is not really qualified to handle appellate cases at either the state or federal level, so he’ll probably just end up writing AGO’s and ballot titles. But it is both disturbing and telling that the AG would be so insensitive to the appearance of a conflict of interest, considering the extremely high profile of this election contest.

Make no mistake… McKenna is an unabashedly partisan politician with surprisingly bold ambitions. That he would pay back his patrons by hiring a BIAW attorney and Sound Politics commentator with dubious qualifications, is a clear indication of how he plans to use his office to advance his own political career.

[NWPT48]Court is back in session, and the Democrats are expected to rest their case by noon. Against my better judgment I’ll be tuning in once again, and updating this post with news and observations. As always, I encourage you to check out the latest trial update from David Postman in The Seattle Times.

Thank you, Kirby
I ended up doing an entire hour on The Kirby Wilbur Show (KVI-570) this morning, fielding questions from callers. I don’t particularly like KVI, and I disagree with Kirby on virtually every political issue, but he has been a gracious host, and I appreciate him giving me the opportunity to present opposing viewpoints to his audience.

“We’d love to be perfect” (10:14 am)
So says King County elections operation supervisor Linda Sanchez, who has been on the stand all morning, talking about her efforts to reconcile poll place discrepancies. Of course, this election wasn’t perfect. But then, no election is.

Again, nothing new was learned.

Evidence (11:16 am)
Linda Sanchez has been excused, and the attorneys are now arguing over the admissibility of Democrats evidence. The Republicans have taken the curious position that they don’t object to admitting evidence of ballots that should have been counted, they just object to the evidence being used.

Democrats are now presenting evidence of offsetting felon votes. Apparently the Dems had a team of 20 researchers working for 6 weeks. (No word as to whether the BIAW helped out.)

Court to rule Monday (12:09 pm)
The Republicans just announced that they have four rebuttal witnesses to present, so closing arguments won’t come before tomorrow afternoon. That said, Judge Bridges has announced that he plans to deliver a ruling from the bench on Monday morning.

So… I guess, Monday afternoon we start talking about the Supreme Court appeal.

Me, John & Stefan (2:09 pm)
Stefan and I will be back on the John Carlson Show (KVI-570) at 3:15 pm, talking about the day’s non-events. In fact, the only real news that I can see coming out of today’s proceedings thus far is that Judge Bridges plans to rule on Monday.

Dueling Experts (3:06 pm)
The Democrats last witness, Prof. Handcock, is back on the stand, and he is really destroying the Republicans’ case for proportional analysis. I wish I could listen to more of it, but I’ve got to prepare for Carlson.

Good radio (3:41 pm)
Stefan apparently thinks there’s a “problem” with putting people like me on the air, and we ended up getting into a bit of shouting match. I know he prefers the comfort of (u)SP, where he posts mean spirited suppostion to a chorus of “nice job, Stefan”, but I thought this afternoon’s discussion was good radio.

We’ll get a clip online soon.

When all else fails, be dismissive (4:01 pm)
Unable to refute Prof. Handcock’s deconstruction of Katz and Gil, the Republicans have taken the tact of trying to discredit Handcock as a witness. I know, I know… lawyers are supposed to be assholes in these situations.

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.