Precedents? Precedents? We don’t need no stinkin’ precedents!

In the final segment of what has turned into a three-part series on the legal basis of the election contest, I now turn to the election statute itself.

The GOP petition claims the court has jurisdiction to set aside a gubernatorial election “pursuant to RCW 29A.68.011 et seq., and the court’s plenary powers.” Yesterday I suggested that the irregularities alleged thus far do not constitute the “gross violations” necessary for the court to nullify the election under its general equity jurisdiction. Today I’d like to briefly discuss the statute itself, and how the various allegations might fit into a decision.

The GOP clearly relies on Foulkes v. Hays for precedents, a 1975 case in which an Adams County commissioner’s race was set aside due to ballot tampering. The following excerpt provides the heart of the Rossi camp’s arguments. (Please note that RCW 29.65.010 is now RCW 29A.68.020, and RCW 29.04.030 is now RCW 29A.68.011.)

[2] Here the trial court correctly ruled that RCW 29.65.010 did not apply to respondent Foulkes’ claim. The only subsection of that section which is claimed to be applicable is subsection (5), which allows contests to be brought on the basis of “illegal votes.” But, as the trial court held, the term “illegal votes” has been held to refer not to fraudulently altered ballots, but to votes “cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law.” … Such a limited interpretation of this phrase here is especially appropriate in light of RCW 29.65.090 , which requires a person alleging illegal voting in a statutory election contest to provide the court with the names of those who cast them. In a situation such as the trial court found existed here, it might be impossible to show by whom the ballots were altered, though it is proven that the alteration took place. To impose a requirement that an election contestant produce a “smoking gun” to obtain relief in such circumstances would deprive him of relief despite the clear merits of his claim that the election was invalid. RCW 29.65.010 therefore did not apply, and the trial court correctly proceeded under the alternative authority provided it by RCW 29.04.030 .

Essentially, we have two kinds of allegations: illegal votes, and other irregularities. Illegal votes in this case most likely consist of those cast by felons or on behalf of dead people, and those cast by people who voted twice. The disputed provisional ballots are not illegal; they were “cast in the manner provided by law” but improperly canvassed. None of the other alleged irregularities — enhanced ballots, disenfranchised military voters, voter roll discrepancies — can rightly be considered illegal votes.

As defined in RCW 29A.68.020, illegal votes will be considered under the standard set forth in RCW 29A.68.110:

No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.

Except for the phrase “unless it appears” there is nothing ambiguous about this statute. Contrary to the oft repeated GOP mantra that all they need to do is prove 129 illegal votes, it is clear that they must at least show the appearance that these votes benefited Gregoire over Rossi in numbers sufficient to have changed the outcome. Fat chance. It will be amusing, if the GOP has the balls to issue subpoenas, to see how many felons actually voted for Rossi.

But the bulk of the GOP’s allegations regard the other irregularities. The question remains… what is the standard for evaluating the impact of these irregularities, and what are the available remedies.

Rossi supporters take solace from Foulkes, where the court ruled that the altered ballots were not “illegal” as defined by statute, but rather, fraud that resulted from neglect. Since RCW 29.65.010 could not apply, the Supremes upheld the lower court’s decision to rely on RCW 29.04.030 (now RCW 29A.68.011.) Indeed, Foulkes apparently set aside the election based on this statute. But Foulkes is not the last word in court decisions.

In seeking to prove that the courts have jurisdiction over contests for statewide office, the GOP petition also cites a more recent 1995 case, Becker v. Pierce County. This decision also discusses RCW 29.04.030, and curiously concludes:

Finally, if Becker were limiting her claim for relief to that provided by RCW 29.04.030(4) alone, invalidation of the election, the relief she seeks, is not a possible result. Under that statute, the only relief that a court may afford is to order that the offending person “forthwith correct the error, desist from the wrongful act, or perform the [neglected] duty and to do as the court orders”.

This appears to directly contradict the Foulkes decision.

So, does the contest statute address the types of irregularities alleged by the GOP? Well, if you accept that an error implies “neglect,” and that neglect implies “misconduct,” then RCW 29A.68.070 clearly comes into play:

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 vote.

Read it any way you want, but it seems clear to me that the standard for annulling an election due to “irregularities” is awfully similar to the standard for “illegal votes.” Indeed Foulkes, actually sets a very high standard. The evidentiary findings concluded that failure to properly secure ballots constituted neglect, that this neglect resulted in ballots being fraudulently altered, and that these ballots were altered “such as to procure” the election for the appellant.

I just don’t see how Rossi meets these standards, for while he certainly might prove neglect, there is no evidence that such neglect resulted in fraud or served to procure the election for Gregoire.

Military ballots were sent out on time, and returned and counted in percentages consistent with overall voter turnout. Ballots were enhanced consistent with WAC 434-261-080, and there is no evidence the process favored Gregoire. Provisional ballots were improperly scanned at polling places throughout the state, and the vast majority would have been legally counted anyway. And the “discrepancy” between the voter list and the number of ballots cast is not evidence of fraudulent votes, but at worst, the lack of evidence to the contrary.

Based on the evidence presented thus far, this election and that in Foulkes have very little in common, and thus little if any precedent can be drawn from the prior case. Rossi’s case does not meet the high standards of that in Foulkes, nor those required for setting aside an election under the cited statutes. Furthermore, Rossi’s appeal to the “plenary powers” of the court is undermined by his reliance on a contest statute that clearly anticipates such irregularities as those alleged, and clearly states that annulling an election is not an appropriate remedy unless it can be shown that these irregularities changed the outcome.

But, much to my mother’s chagrin, I’m not an attorney. So what do I know?

Comments

  1. 1

    Richard Pope spews:

    I wouldn’t rely on Becker for much of anything. The facts in Becker are frankly pathetic. Nina Becker ran for State Auditor in 1992 and did no campaigning whatsoever. In spite of that, she finished a close second to Brian Sonntag in the Democrat primary. In fact, Becker outpolled Sonntag outside of Pierce County by several thousand votes.

    Becker sued Sonntag quite some time after the election — in fact over a year after he took office. She argued that Sonntag should be booted out of office because he was Pierce County Auditor and participated in the election canvassing and therefore all of Pierce County’s votes should be thrown out. That would have made her the winner of the Democrat primary

    The state Supreme Court easily rejected these frivolous arguments and threw out Becker’s lawsuit.

  2. 2

    Don spews:

    Goldy, if you spell it “precedents” maybe you can fool ‘em into thinking you’re an attorney.

  3. 3

    HowCanYouBeProudtobeAnASS spews:

    Goldy, if you spell it “precedents” maybe you can fool ‘em into thinking you’re an attorney. -Comment by Don— 1/29/05 @ 7:24 pm

    Don, Don, Don… Goldy already answered your question… with the very last line of his musings here: “So what do I know?” -by Goldy, 1/29/05, 4:41 pm ;-)

  4. 5

    HowCanYouBeProudtobeAnASS spews:

    Oh good grief – you libs need to take the sticks out of your butts and lighten up already – every comment is not an insult, every happening is not a tragedy. Forget your serious pills for a day and get over yourselves already.

  5. 6

    HowCanYouBeProudtobeAnASS spews:

    I am passing this on to you because it could definitely work for you and it appears you all could use more calm in your lives. By following this simple advice of Dr. Phil, you too can finally inner peace.

    Dr. Phil proclaimed the way to achieve inner peace is to finish all the things you have started. So go ahead, look around your house to see all things you started and haven’t finished and, before leaving the house tomorrow morning, finish off that bottle of Merlot, that bottle of White Zinfandel, that bottle of Baileys, that bottle of Kahlua, a package of Oreos, the remainder of both your Prozac and Valium prescriptions, the rest of the cheesecake, some Saltines and a box of chocolates.

    You have no idea how good you’ll feel.

  6. 8

    HowCanYouBeProudtobeAnASS spews:

    ASSPERSON – STILL THINKING A LOT ABOUT LIBERAL ASS I SEE -Comment by bby— 1/29/05 @ 9:59 pm

    Only in regards to the amusement factor when watching them make asses of themselves. You do them proud.

  7. 9

    Don spews:

    ProudtobeAnAss @ 7

    I find it amusing that your choice of screen name leaves you vulnerable to abbreviation. However, since liberals tend to have an underdeveloped sense of humor, it would be most helpful if you put appropriate warning labels on your posts, e.g., “This is not an insult!”

    Republicans pretty much invented the technique of ad hominem attack, so why shouldn’t we amuse with it, too? Are you claiming patent infringement? Are you demanding royalties?

  8. 10

    Goldy spews:

    Don… to tell you the truth, I’ve always wished I had an editor. So I appreciate you pointing out my errors.

    Funny thing is… when I quickly proofed, I had it spelled both ways, and opted for the wrong one.

    Fix made.

  9. 11

    Goldy spews:

    Richard… I agree, Becker is not much of a case. But it does address this statute, and it clearly states that annulling an election is not an available remedy.

    I think this makes sense, as that particular section is intended to fix correctible errors. It doesn’t really make sense that we would have a lesser standard for irregularities than for illegal votes, does it?

  10. 12

    HowCanYouBeProudtobeAnASS spews:

    it would be most helpful if you put appropriate warning labels on your posts, e.g., “This is not an insult!” -Comment by Don— 1/29/05 @ 10:56 pm

    Actually Don, I have a disclaimer which I have used here from time to time:

    Caution: This POST contains concentrated sarcasm, which may cause children to pass out, and strong adults to weep.

    Pretty darn humorless group that needs “insult warnings” and cannot figure out the meaning of a winking smiley. Good grief.

  11. 13

    zip spews:

    “Provisional ballots were improperly scanned at polling places throughout the state, and the vast majority would have been legally counted anyway.”

    Uh, I’m surprised that you know how many would have been legally counted. The “anyway” might sway your audience but the judge may want to see some evidence.

  12. 14

    Richard Pope spews:

    I think this election contest thing is drawing less and less interest the more it is talked about — at least when presented from the Democrat perspective.

    Gregoire is legally Governor — for now at least. It would be far more useful from a pro-Gregoire perspective to talk about how this state is going to be governed. Will there be any real tax reform? How will existing programs be funded? How will proposed new and increased programs be funded? Will Gregoire make any cabinet appointments to speak of in the forseeable future?

    The legalities of the election contest really aren’t all that interesting. Everyone gets overloaded with legalities soon enough, even lawyers. Probably these points of law won’t become interesting again until actual judicial decisions are made concerning them.

    The facts, on the other hand, are interesting. Vance and the state GOP have an interesting news release every couple of days about more felons, dead people, duplicate voters, etc., and these generally get good coverage in the newspapers and broadcast media — not to mention the internet blogs. So long as new facts are discovered, they will always be more interesting than “old” law.

    I am not sure what new or unknown facts can be presented in favor of Gregoire’s position in this election contest matter. Maybe if King County came up with an explanation for the significant surplus of ballots as compared with voters, that might be newsworthy or at least interesting.

    Public opinion polls show that most people in Washington don’t think Gregoire’s victory was legitimate, and most people don’t have a favorable opinion of her either. If Gregoire is booted out due to the election contest, then she is finished politically and the same can be said about the Dems holding a majority in the legislature. However, even if Gregoire wins the election contest, it will take a lot of hard work on her part to win the confidence of the electorate. She is starting off from a much weaker position than Bush in early 2001 in public perceptions.

  13. 15

    HowCanYouBeProudtobeAnASS spews:

    Caution: This POST contains concentrated sarcasm, which may cause children to pass out, and strong adults to weep:

    I am passing this on to you because it definitely could work for you and you all sure seem to need more calm in your lives. By following the simple advice of your uberlib Dr. Phil, you too can finally find inner peace.

    Dr. Phil proclaimed the way to achieve inner peace is to finish all the things you have started. So look around your house to see things you started and haven’t finished and, before leaving the house tomorrow morning finish off that bottle of Merlot, that bottle of White Zinfandel, that bottle of Baileys, that bottle of Kahlua and/or Jim Beam, a package of Oreos, the remainder of both your Proz*c and V*lium prescriptions, the rest of the cheesecake, some Saltines and a box of chocolates.

    You have no idea how good you’ll feel.

    Those of us who actually enjoy life will appreciate your sudden and unexpected lack of SOURPUSSNESS.

  14. 16

    spews:

    Goldy @ 11

    A real attorney should probably weigh in on this question (Don?), but I think the statement with respect to “invalidat[ing] an election” in Becker (paragraph 7) is obiter dicta, i.e. it’s not necessary for the Supreme Court’s decision to affirm the lower courts dismissal.

    The primary issue in that case was whether the prohibition of a county auditor overseeing an election for the office of county auditor when that county auditor is a candidate for that same office. Becker sought to extend this prohibition to any election in which a county auditor is a candidate.

    The Court also held that Becker’s complaint wasn’t filed in a timely fashion, and it was within that context that the Court made the statement with respect to the availability of invalidating an election as a form of relief for an election contest. Since this isn’t related to the primary issue, I’m inclined to think that this is dicta.

    Of course, if a real attorney says that I’m FoS, then I’ll withdraw the idea entirely :-).

    This is, however, an important point, because, if the statement is obiter dicta, then the lower court isn’t bound by it.

    Rick

  15. 17

    Dave spews:

    However, since liberals tend to have an underdeveloped sense of humor

    On the contrary, we have a well developed sense of humor. The joke just has to be funny!

  16. 18

    Chuck spews:

    OK games aside, your problem with a revote, runnoff election or a new election is you know that if it happened, the governor would be male…admit it and I will go on…………

  17. 19

    HowCanYouBeProudtobeAnASS spews:

    As much as it pains me to say it, I believe the court will take a King Solomon approach and cut the baby in half.

    I think they will set aside the election and defer the ‘will of the voters’ until the next appropriate election cycle and we will be calling Brad Owens ‘governor’ till then.

    It’s not the ideal situation. Obviously we’d like to be saying ‘Governor Rossi’, but better to be saying ‘Governor’ to Owens than to Chrissy.

  18. 22

    Richard Pope spews:

    I don’t even think Becker says that as dicta. Nina Becker wanted the election results nullified, both the primary and general election results. Since her beef was with the primary election (Sonntag being nominee and not Becker), she should have filed her contest within a few days of the primary election results being certified by the Secretary of State. Instead, she waited until more than a year after the general election to file her contest.

    Becker tried to call her lawsuit an action to correct error, instead of an election contest. She did this to avoid the very short time limit to file an election contest. The Supreme Court said that the only way to challenge an election was to file an election contest within the very short time limit. They also said if Becker was only seeking to correct an error, instead of challenging the election, then the election could not be overturned.

    To extrapolate from this opinion is ridiculous. The reductio ad absurdum (pardon my Latin argument) seems to be as follows:

    1. Rossi argues that several thousand ballots weren’t cast by voters at all, since the numbers of ballots counted exceed the number of people voting.

    2. These voterless ballots are not illegal votes within the narrow statutory definition, since it can’t be proven exactly which person cast them.

    3. Therefore, voterless ballots are some other kind of error, instead of being illegal votes.

    4. Based on a twisted reading of the language in Becker, elections can only be overturned due to illegal votes, and not because of other kinds of errors.

    5. Therefore, in the event Rossi proves that several thousand ballots were added (mainly in King County) that were not cast by voters actually signing in to vote, then Gregoire’s 129 vote margin cannot be reversed, since elections can only be overturned due to “illegal votes”, and not other kinds of errors.

    Becker’s lawsuit was bogus on the merits, in addition to being far too late. Her argument was that Brian Sonntag was Pierce County Auditor and should not have participated in the canvassing, since he was running for State Auditor. The statute in question only prohibited the county auditor from participating if running for re-election for that office, and not if a candidate for another office. But even in Sonntag had been disqualified, Becker’s proposed remedy of discarding all the Pierce County votes was absurd. There was no evidence that Sonntag had changed even a single vote in Pierce County in his favor or done anything else wrong in Pierce County.

  19. 23

    Don spews:

    Richard Pope @ 14

    Substitute “allegations” for “facts” throughout your post, and you’re halfway there. As for the other half, if you want to know who Gregoire has appointed lately, try looking at the Governor’s web site. Here, I’ll help you find it: http://www.governor.wa.gov/

    I’m not sure what you mean by “tax reform” but since you asked I’ll offer my opinion: Go with the Gates Commission recommendations. The basic problem is that under the existing tax structure, revenue grows slower than what is needed to stay even with population growth and inflation. The solution is clearly indicated by two simple statistics: 1) Business pays 41% of total state taxes in Washington, compared to an average of 30% in other western states; (2) low income households pay about 15% of their income to state and local taxes, compared to 4% for affluent households. It’s clear that if you want to grow the economy and create jobs you have to shift taxes from small businesses to households, and it’s equally clear this shifting can’t occur under the existing tax structure because they would be imposed on households that are already overtaxed and simply don’t have the money. But the high income households that are underpaying have the political clout to stop any effort to shift more taxes to them, such as through a state income tax. So we are permanently stuck in a rut of declining state services (spell: e-d-u-c-a-t-i-o-n) and job-killing taxes on small businesses, it appears. Naturally our conservative friends are going to respond the state should cut spending. Where? Washington, unlike most states, funds K-12 education at the state level; in most places, funding for public schools comes from local property taxes. Education, already strapped, is half the state budget. Most of the other half is for transportation and social services. This state needs to spend more, not less, on transportation and that’s probably going to happen through tolls; our tradition of free “freeways” is going to end very soon. What would you cut in social services? The biggest component of DSHS spending is Medicaid for elderly people in nursing homes; are you going to put them out on the curb? Are you going to cut off more kids from Medicaid so an ever-increasing number of our state’s children have no medical care whatsoever? Are you going to eliminate Child Protective Services or foster homes for abused kids? Where do you cut besides those three spending areas? There’s not enough money anyway else in the state budget. So when folks say “tax reform,” I respond, “you support a state income tax? good, it’s about time.”

  20. 24

    Don spews:

    I’ll get back to you folks later on the question of Becker dicta. Right now my wife is making me do housework.

  21. 25

    Richard Pope spews:

    # 22 Comment by Don— 1/30/05 @ 1:23 pm

    Of course, Gregoire does have all the cabinet positions filled right now — by holdovers from Gary Locke’s administration. With the exception of a couple of people who have resigned and acting secretaries are filling the job.

    As for tax reform, that ain’t going to happen any time soon. People earning over $100,000 are 22% of the population in this state and would pay the lion’s share of any income tax. They voted 63% to 37% for Kerry in this state, while people under $100,000 basically broke even. They are the margin that Democrats rely on to win elections and get campaign money in this state.

    Nationwide, by the way, over $100,000 is 18% of the people, and they vote 58% to 41% for Bush — while those under $100,000 basically broke even. If people over $100,000 in this state voted the same way as the same group does nationwide, the GOP would have an inherent advantage of several percentage points statewide.

    State Republicans seem opposed to the state income tax as a matter of principle, even though that position is contrary to their self interest. State Democrats aren’t going to support a state income tax, because it is contrary to their self interest.

    So there will be no tax reform. And the people won’t stand for increasing the regressive sales tax — even for programs such as education, since that would make matters even worse. The 78% of people earning under $100,000 per year will solidly oppose that. The only people who supported that sales tax increase were wealthy liberals in Seattle and Bellevue.

  22. 26

    zip spews:

    don @ 20

    Should be pretty easy to prove that the provisionals in question were all illegally counted, then. Regardless of Goldy’s continued assertion that “the vast majority would have been legally counted anyway.”

  23. 27

    Richard Pope spews:

    In King County, 348 provisional ballots were improperly put in the scanning machine on election day — and had the empty ballot envelopes submitted to election workers and processed.

    Dean Logan said that 250 of these 348 empty provisional ballot envelopes were from validly registered voters. This means at least 98 of these improperly cast provisional ballots were illegal votes.

    There are at least 1,800 more ballots cast in King County that cannot be attributed to actual voters who signed in to vote, in addition to the 348 provisional ballots improperly placed into the machines on election day.

    Many of these could be provisional ballots placed in the machine, for which the envelopes were never returned to election workers, or for which election workers simply tore up the empty envelopes to cover up this mistake (or for which they didn’t think there would be any use).

    87% of the overall provisional ballots cast in King County were validated as being cast by registered voters. But only 72% of the empty envelope provisional voters were validated. This means that people who knew they weren’t registered were far more likely to simply insert their ballot in the machine, than were provisional voters who believed they were registered.

    And probably provisional voters who put the ballot in the machine on election day — and didn’t bother to return the empty envelope — were much more likely not to be properly registered voters. Of course, the number of people in this category is impossible to separate from the other 1,800 voterless ballots cast in King County.

  24. 28

    HowCanYouBeProudtobeAnASS spews:

    On another subject completely:

    Congratulations Iraq!

    To Kerry, Kennedy, McDermott, NY Times, et al: Please go straight to hell and enjoy your “quagmire” while there.

  25. 29

    spews:

    Richard @ 26

    First, I’m not sure where you get the 87% figure about provisional ballots, and your comment isn’t clear as to whether the provisional ballots other than the ones with the empty envelopes were actually counted. Do you have a source for those numbers?

    Second, the fact that a small percentage of ballots cannot be reconciled with the voter registration database is meaningless for two reasons. 1) That’s not the purpose of the voter registration database, and never has been. Verification in voting is front-loaded, not back-loaded. The purpose of the database is solely to determine who gets a regular ballot and who gets a provisional ballot at the polling place. 2) The errors in the registration database are, by database standards, likely to outnumber the errors in ballot counting process by a minimum factor of 4 to 1. It’s simply inane to use information that’s more error-prone as a check against errors in the counting process itself (which is why verification is done at the front end of the voting process, not the back end).

  26. 31

    spews:

    Richard, that’s 250 out of 348 known provisional ballots, which is where the 72% figure comes from. I’m asking about the 87% figure you gave, and how you arrived at it.

  27. 32

    George spews:

    I’m interested in the so-called “enhanced” ballots. WAC 434-261-080 says: “Ballots shall only be enhanced when such enhancement will not permanently obscure the original marks of voters.” How will the judge determine if this law has been followed? Will the judge and/or assistants make a ballot by ballot examination with a magnifier, a la Florida? If whiteout or a similar product was used, as some have claimed, it may be hard to tell what’s underneath it, or if anything is. Perhaps they will need not only magnification, but small scraping tools as well.

  28. 33

    jpgee spews:

    To ‘half witted ASS’, I agree that congratulations are in order for Iraq. To make things better I think you should voluntier to be the Iqaq National Garbage Collector….becuase basically all you do is spew rubbish lmao@U

  29. 34

    Don spews:

    Richard @ 1, Goldy @ 11, Rick @ 15

    A threshold question is whether the language in Wash. Const. Art. III, Sec. 4, “Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law[,]” gives the Legislature exclusive jurisdiction to decide election contests for statewide offices (including governor), as contended by the Democrats. The superior court is expected to rule on this issue on Feb. 4. There are arguments both ways, and it’s not a slam dunk either way, so I want to skip over this issue.

    If the court’s answer to that issue is “no,” then the election contest statute clearly gives the court authority to void the election. See RCW 29A.68.050.

    In Becker, the court held the statute on which Becker relied did not apply. After noting this was dispositive, it also held that Becker’s lawsuit was an election contest. Even though this second holding was unnecessary, the court addressed this issue because it considered it “significant,” i.e. of broad public importance. As the court clearly calls it a “holding,” it is not dicta, and is precedent. The language “invalidation of the election” is part of the court’s reasoning that supports this holding, so is not dicta. A lawyer would look at the reasoning to determine whether the holding applies to his case, or his case is different enough to be distinguished, in which case the Becker holding would not apply.

    Becker could turn out to be a very important case in the GOP’s contest of the election for governor because of the discussion under headnote (not paragraph) 5. The Republicans, recognizing it likely will be impossible to prove illegal votes changed the outcome, alternatively are urging the court’s inherent or equity powers as a basis to nullify the election. But the Becker court rejected a similar contention in that case, stating that the right to contest an election rests solely on, and is limited by the provisions of, the statute. This means the GOP must satisfy the statute’s grounds and burden of proof, or it loses. Interestingly, the Becker court discussed this point after disposing of the case with its first holding, and did not characterize it as a holding, so this part of the opinion probably is dicta but it is very strong dicta. The court described Becker’s contention that the state constitution created a right to contest the election independent of the statute as “wholly unpersuasive” and any future court to consider the same issue likely will consider this as dispositive and cite to it, just as if it were a holding.

  30. 35

    spews:

    George @ 31

    The “enhanced” ballot question isn’t even at issue in this case, or, at least, shouldn’t be. The time to raise that issue was during the recount process (or shortly after). This case hinges on “illegal” votes.

  31. 36

    George spews:

    Rick @34 The Republicans do list it in their Election Contest Petition of Jan. 10, reproduced on the Secretary of State’s website. It’s listed #11 under part VI, “Grounds and Causes for the Contest.”

  32. 37

    Don spews:

    Richard @ 24

    Gregoire has begun appointing department heads; e.g., the Corrections post was filled last week. This process is still underway; what do you expect only 2 weeks into her administration? She has created an election reform task force and kicked off major policy initiatives. In my opinion, she’s off to a fast, bold start. That’s why I supported her — she’s a visionary willing to tackle big issues and has a track record of getting big things done while lesser politicians dithered (the Hanford agreement and tobacco settlement being the two most famous examples) — a refreshing change from Garylockism.

    I can’t find anything in your analysis of the tax issue to disagree with. Back in the 70s and 80s, the voters defeated a state income tax 3 times. Even popular Gov. Dan Evans couldn’t get anywhere. Ron Sims ran on the issue in last year’s primary and got drubbed. Governors and legislatures will continue to putter around the margins of the problem, avoiding both a state income tax and a sales tax increase, by raising “sin” taxes, miscellaneous fees, and extending taxes to more product/service categories. This only buys some time, and ultimately this state’s voters will have to get serious about tax reform.

    Interestingly, the new Secretary of Corrections was lured from a similar job in Nebraska, and as this position serves at the governor’s pleasure, he carefully sized up Gregoire’s prospects for staying in office — then accepted the job and moved his family to Washington State. Evidently there’s at least one sophisticated bureaucrat out there willing to stake his career and livelihood on Rossi losing in court. Not a good sign for Rossi’s prospects, methinks.

  33. 38

    HowCanYouBeProudtobeAnASS spews:

    To ‘half witted ASS’, I agree that congratulations are in order for Iraq. To make things better I think you should voluntier to be the Iqaq National Garbage Collector….becuase basically all you do is spew rubbish lmao@U -Comment by jpgee— 1/30/05 @ 5:06 pm

    Thanks for the suggestion, but I’m needed here.

    Perhaps you should worry less about attempting to be witty (feebly, I might add) and learn to SPELL.

    And, just to set the record straight, everytime you kiddies attempt to insult me by calling me an ass with some half-witted prefix or suffix (clearly failed attempts to show cleverness)you make me laugh, because I consider it the highest of compliments in that you all hold yourselves as LIBERAL-DEMOCRAT-DONKEY-ASSES in the highest esteem. Thanks!

  34. 39

    Don spews:

    What I love about this board — which I discovered a few days ago — is FREE SPEECH. ProudtobeAnAss doesn’t get deleted even when he’s waaaaaay off topic. By contrast, just try posting anything even slightly left of far-right-wing-armed-militia on Free Republic and see what happens. Now you’re there, now you’re not. This is one of the few boards where debate is possible, and the people here seem intelligent and informed enough that ranters are unlikely to get away with posting b.s. Thanks all — on both sides — for the effort and thought you put into your arguments.

  35. 41

    HowCanYouBeProudtobeAnASS spews:

    Yes Don, I know. Consider me the HA.Orgy’s very own hypocrisy police. Someone has to do it! ;-)

    See? That was a wink – that meant: ‘light hearted teasing’, so all you sourpusses have no need to get your shorts in a knot.

  36. 42

    HowCanYouBeProudtobeAnASS spews:

    PS: I’ve never been to Free Republic, so I’ll have to take your word for it.

    Also, I sure wish I knew what words, besides ‘Soci*list’ were held for “approval” … I posted a GREAT clean joke for you all and it disappeared into HA.Orgy netherworld/cyberspace.

  37. 43

    spews:

    George @ 35

    The Repubicans can list whatever they want in the petition. That doesn’t mean the law provides a basis for that issue as a cause of action, and, in this case, the law doesn’t.

  38. 44

    George spews:

    Rick@42 They are arguing that some of the enhancements constitute “illegal votes,” so it is an issue in this case. They are citing WAC 434-261-080 as the legal basis. Whether their claim has legal merit is something the judge will decide. He has an unenviable task; even in Florida the elections workers didn’t have permission to pull off hanging chads or stuff them back in the holes.

  39. 45

    Goldy spews:

    Don @ 33 (and elsewhere)

    Thanks for your comments on Becker. As I repeatedly point out, I’m not an attorney, but I do my best to muddle through.

    I do want to make it clear thought that I never meant to imply that the election statute does not offer setting aside an election as a remedy to errors… merely that 29A.68.011 on it’s own does not offer this as a remedy (as clearly stated in Becker.)

    My general point is that if the courts have jurisdiction, illegal votes, misconduct, neglect… they all have the same high standard that there must be evidence they changed the outcome. The statute itself clearly does not allow setting aside an election simply because there are a lot of irregularities.

  40. 46

    Goldy spews:

    ProudAss @ 41

    As I have stated before, this site is under constant attack from blog spammers. As part of my defense, I subscribe to a list of keywords that commonly appear in blog spam, and any comment which contains any one of these words or phrases is held for approval. (As is any comment containing more than one link.)

    I do my best to approve comments on a timely basis, but, well… I have a life. Also, I get an enormous number of comments and emails, and occasionally one of these approvals slips by my attention (all approvals are emailed to me.) I apologize when that happens.

    BUT… I have never intentionally removed or edited a legitimate comment, and I have never blocked a commentator, no matter how off-subject and inappropriate their comments might be. (Hence the fact that you, ProudAss, still have posting privileges.)

    I would, however, encourage you to do a better job of staying on topic, and not devolve every single comment thread into tedious name-calling.

  41. 47

    HowCanYouBeProudtobeAnASS spews:

    Sometimes Goldy, as in the historical democracy and freedom blooming in Iraq, it’s necessary to go off topic.

    And other times, the topic has been beaten to death, chewed up, regurgitated and chewed again ad nauseum.

  42. 48

    Mr. Cynical spews:

    Dear HowCan…..
    @47–
    You are referring to the “Elsie the Cow” method that the Leftists are so fond of. What else can you expect of folks who are proud to claim Teddy “Make mine a Double” Kennedy and John “Sore Loser” Kerry.
    These 2 boobs would criticize the sun for rising in the morning and blame Bush for it to boot if they fantasized it would help them “politically”.
    I mean, what kind of Americans would hope for the Iraq Elections to be a disaster????? Kennedy & Kerry===LOSERS!
    I real admire Joe Liebermann. He was on Hannity & Colmes tonight and publicly disgareed with EVERYTHING Kennedy & Kerry said recently.
    I came up with the name Mr. Cynical referring to my complete lack of respect for the Leftist/Socialist crowd. I am 100% distrustful of their motives. Otherwise, I’m a positive, lovable guy! Well, maybe not exactly lovable…….

  43. 49

    Mr. Cynical spews:

    HowCAN@47

    YOU are referring to the Leftist’s pride & joy called the “Elsie the Cow” Method where they mistake motion for action, never accomplish anything worth a darn and spend all the money in “processing” every issue to death (ie KingCo Transportation issues). Enuf said!

  44. 50

    Don spews:

    Ass @ 42

    Maybe you can explain why wingers don’t know the difference between a Democrat and a Socialist, being as you’re from that part of the world. (Hint: They have little or nothing in common.)

  45. 51

    Don spews:

    Ass @ 38

    As a carpal tunnel sufferer I find it palliative to abbreviate your screen name when typing it. Besides, the shortened version fits you better!

  46. 53

    Don spews:

    Ass @ 47

    Iraq will still be a quagmire tomorrow morning.

    Cyn @ 48

    Don’t give up. Even porcupines find love.

  47. 54

    Mark spews:

    Goldy @ 45

    It appears that the word “appears” appears in some of the legal language being cited. The RCW doesn’t say, “unless it is proven that an amount of illegal votes has been given.” It is all part of those wonderful wiggle words that let judges and juries decide instead of bloggers or posters or Chris Vance or Kirstin Brost or even Weeping Paul.

    In a nutshell, it is my personal belief that things were plenty f’ed up in KingCo and elsewhere, that I wouldn’t bet much more that about a $1.50 over who really got the most votes and that we should give the GOP & the Dems their “days in (WA Supreme) Court” and let the chips (or chads) fall where they may. And, hopefully, some truly meaningful election reform will come of this.

  48. 55

    spews:

    Cyn @ 48

    Since you’re having such difficulty controlling yourself to a sufficient level as to stay on topic in the comments threads, might I be so bold as to suggest you start your own blog? It can be done for free either at blogspot.com or spaces.msn.com, and you can blow of whatever steem you care to your heart’s content rather than having to resort to the somewhat lowlife tactic of using someone else’s blog as a receptical for your intellectual diarrhea.

  49. 58

    spews:

    Well, Cyn, having one’s head up one’s backside, while often confused with constipation, happens to be one of the leading causes of intellectual diarrhea.

    I should warn you, though. Clinical studies have proved that those who have exhibit your symptoms of rectal cranitis over a prolonged period of time often exhibit symptoms the most advanced form of the condition: rectal egoitis. The head swells, and it gets stuck.

    Were I a practicing physician, I might be inclined to proscribe liberal doses of large suppositories. No. Make that large doses of liberal suppositories :-).

  50. 59

    Chuck spews:

    I saw the “governor” on channel 23 sidestepping election reform questions…showed me just how people think of her…

  51. 60

    Mark spews:

    Don @ 57

    Your personal belief doesn’t count. Only proof in court counts.

    A.) That is essentially what I said — let the courts decide.

    B.) Your statement above is, in and of itself, merely your opinion (i.e. belief), so what is your point?

  52. 61

    Mr. Cynical spews:

    Rick@58–
    Good one!!

    You ought to be aware of recent evolutionary research which has linked the Leftist “thinking” (oxymoron) all the way back to the prehistoric bird called the “Darkinere”.

    The Darkinere was primarily known for flying around in smaller and smaller circles at an accelerating rate until the inevitable happens….it flies right up it’s own ass!

    Fortunately you can blame Evolution for your plight. Unfortunately for the rest of us, their is no known cure for your condition.

  53. 62

    Darwin spews:

    Mr. Cynical – you’ve disproved my theory, darn it! What God in His right mind would have created you?

  54. 63

    Mr. Cynical spews:

    Darwin–
    The same God that created you!
    And thankfully He gave us a “road map” on seeking Him.
    And at the same time, gave us the “free will” to think for ourselves and make our own decisions.
    Isn’t that wonderful?

    You can spend your whole life trying to prove which Dinosaur testicle you evolved from Darwin….or you can choose FAITH!

  55. 65

    torridjoe spews:

    regarding the provisionals–in speaking to Bobbi Egan, I got the clear impression that the 250 validated votes were not the FINAL total, only what they had verified so far.

    I believe the 87% validation rate for provisionals appears in the press release by Dean Logan on January 7th. Perhaps that date isn’t right, but I saw it coming from KC, and Ms. Egan verified that number for me Friday.

    Anyhow, very nice analysis in the post. I think the two key sections of the RCW have been identified–.070 for electoral worker misconduct; and .110 for illegal ballots. I largely cite the very same passages in my review of Foulkes at

    http://alsoalso.typepad.com/al....._gov_.html

    You’ve nailed the key standards–if there’s misconduct, it has to have been done in order to elevate a particular candidate (rather than simple neglect), and if there are illegal votes, they have to be shown to be illegally cast for the winner in sufficient amounts to suggest that they didn’t actually win. As I’ve begun using as a shorthand litany, where Rossi has ‘illegal’ votes he doesn’t have fraud, and where he has fraud he doesn’t have the votes.

    Preemptive Carla and I are doing some work on the error rates of other counties in WA; the findings are in progress but fairly interesting. Spokane reported to me that they still have 976 more VOTERS than BALLOTS, which is an error rate more than double King’s.

  56. 66

    Goldy spews:

    TorridJoe @ 65

    I look forward to your comparitive review of error rates in other counties. I’ve wanted to do that myself, but haven’t had the time… please be sure to send them my way.

  57. 67

    spews:

    Cyn @ 61

    You may think I’m a liberal, but I’m also an Island Packet owner. So there! Phhhht!

    TorridJoe @ 65

    Take a look at Skagit County as well. The lost 19 votes overall between the machine count and the hand recount, but that includes 47 votes lost from on precinct in Mt. Vernon. It’d be interesting to get an explanation for that one.

  58. 68

    torridjoe spews:

    thanks, Goldy. Carla and I will try to wrap up that section of research sometime this week, so either my place or PreemptiveKarma.com is where you should be checking in.

    Rick–Interesting info from Skagit. What we did was identify 12 counties besides King that represented a good cross-section of the state, in order to see what the error standard was. Our interest is in determining whether King’s errors are unusual, unusually large, or unusually unexplained. So far I’d say no across the board. If these error rates can be defined by comparison as “normal,” then there’s little left beyond outright vote manipulation that can help Rossi, IMO.

  59. 69

    Don spews:

    If I may change the subject a little, if the Pubbies somehow do get a revote, they still have to win the revote! This doesn’t seem to faze them. Why do Rossi fans assume they’d win a revote? The last time, Rossi eked out a near-tie. But they talk like they’ve got a lock on it, if they can just get a revote.

  60. 70

    Mr. Cynical spews:

    Don–
    Rossi will win the re-vote because your darling Ms. Gregoire made the mistake of saying the following:
    “This election is a model for the rest of the nation and the world at large”!!
    Really? A model???
    If this is bad enough to warrant setting aside this election by a Democrat Supreme Court in Washington…well, enuf said!

    Torridjowals–
    What…you are actually doing some elementary research???!!
    Amazing! Ask Sharkansky for a few tips, dude!

  61. 71

    jcricket spews:

    Yes, ask Sharkansky. He of the ever changing statistical spreadsheet that never seems to end up being useful for predicting anything. Stefan wields Excel like a chainsaw.

    Just make sure not to accidentally anger him (i.e. by daring to disagree) or he’ll banish you.

  62. 72

    Mr. Cynical spews:

    It’s my understanding Sharkansky has only banished STALKERS and PERVERTS jcricket?
    Why were you banished?

  63. 73

    Don spews:

    Cyn @ 70

    Yeah right, the latest poll shows 99% of likely voters read the papers every day and can remember everything Gregoire said in the last three months. Sure.

  64. 74

    Mr. Cynical spews:

    Don–
    If there is a revote, the voters will be reminded of her statement over & over again on TV Ads, mailers, newspaper ads, letters etc. USING THE WORDS COMING RIGHT OUT OF HER MOUTH!!!
    Voters do suffer amnesia…I agree. That’s why they are reminded by opponents. NOTHING IS MORE POWERFUL THAN AN AD USING THE EXACT WORDS…IT’S ON TAPE DON. HAVEN’T YOU SEEN IT?
    If you haven’t, trust me, you will be seeing it. Seeing your gal say those words over & over again until you will want to PUKE!!!
    “This Election is a model to the nation and the rest of the world at large” says Queen Chris. How will the voters respond to those words….and the arrogant attitude behind them.

  65. 75

    Don spews:

    Cyn @ 74

    While we’re trashing elections, care to compare this one to Florida 2000 or Ohio 2004?

  66. 76

    Don spews:

    CROOKED SNOHOMISH E-MACHINES FAVORED ROSSI

    Seattle Weekly reported last week that a study of Snohomish County voting in November election showed Gregoire got more absentee votes than Rossi, but strangely Rossi got several thousand more poll votes than Gregoire. Even more strangely, 58 of the county’s 148 paperless electronic voting machines were defective when tested after the election, and had a tendency to change Gregoire votes and undervotes into Rossi votes. Not strangely, the manufacturer has refused to allow a forensic examination of the machines. Wonder if the same thing happened in Yakima County, Washington’s other e-machine county? Wouldn’t be surprised. This not only may be the smoking gun that indicts electronic voting machines, but may also allow the Democrats to show that Rossi received thousands of phantom votes, far more than enough to offset whatever “illegal votes” his camp digs up.

    Seattle Weekly article: http://www.seattleweekly.com/f.....homish.php

    Summary of investigative report with link to complete report: http://www.votersunite.org/tak.....County.htm