TJ over at Also Also has posted a thorough reporting of the transcript of Chelan County Judge John Bridges rulings, and how they might impact Dino Rossi’s prospects of setting aside the gubernatorial election. (Cliff Notes Version: “It don’t look so good for Rossi.”)
TJ split his post between the morning session (Part I) and the afternoon session (Part II). For the sake of dramatic arc, read both. But if you just want to skip to the juicy stuff, go straight to Part II. I won’t post in detail on the entire transcript, because TJ’s fine analysis has sufficiently satisfied my latently wonkish tendencies. Instead, I thought I’d focus on the all important issue of the burden of proof.
While Judge Bridges never explicitly rules on the burden of proof necessary to set aside an election, TJ correctly points out that he drops several huge hints. One of the biggest is when he discusses RCW 29A.68.110‘s apparently high standard for setting aside an election. Judge Bridges explains:
This same requirement was recognized early in our state’s history when in 1912 our Supreme Court in Hill v. Howell held that when there was no evidence to show for whom the elector voted and because both candidates were innocent of wrongdoing, the vote must be treated between the parties as a legitimate vote.
Remember everything I’ve written about how acceptance of uncertainty is implicit in our election statutes? Well this very pragmatic principle is clearly expressed in an excerpt from Hill v. Howell, which TJ courteously provides to his readers:
An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future.
TJ calls this the “Shit Happens” ruling, and while it may offend the sensibilities of Rossi supporters, this is exactly why they will find a court of law to be a much tougher venue than the court of public opinion. They can allege all the felon votes they want, but according to RCW 29A.68.110, unless they can prove these votes likely changed the outcome, well… shit happens.
In moving on from illegal votes to other irregularities, Judge Bridges again signals that he believes the same high burden of proof should apply. He points out that few election contests succeed, and he suggests that there are “some well-recognized presumptions, if not policy reasons, why elections should not be overturned.”
For instance, do we as voters and as constituents of candidates want to engage in what one judge referred to as seasons of discontent commencing the moment after the polls close on election day.
Um… I don’t. But apparently Dino Rossi, Chris Vance, the BIAW and right-wing bloggers and talk-radio hosts have no compunction about trashing the integrity of our electoral process in the interest of a short-term political gain.
If, as the Rossi campaign continues to claim, they need only show that there were more errors or illegal votes than Gregoire’s 129-vote margin, it would be an invitation to contest nearly every close election. How close is too close? If Mark Sidran had challenged Deborah Senn’s victory in the attorney general primary, could the contest ever have been decided in time for the general election?
These are pragmatic considerations, embodied in law, and that’s why (un)Sound Politic’s OCD-like focus on the so-called voter-credit “discrepancy” is a legal red herring. They continue to cry scandal, charging that King County has not proven it actually reconciled the election results… but they have the burden of proof exactly backwards. As Judge Bridges explains:
Our Supreme Court has observed that election officers are presumed to have complied with the duties required of them in an honest and careful manner. That was the Quigley case. And also in Quigley the Court noted that the returns of any election official are entitled to the presumption of regularity…. And in McCormick v. Okanogan County in 1978, the Supreme Court observed that informality of irregularity in an election that does not affect the result is not sufficient to invalidate the election.
King County didn’t properly reconcile election returns? Prove it. Subpoena the binder and the poll books and prove they didn’t do their job. I think the court will agree that “the duties required” of KC Elections do not necessarily include giving Snark everything he wants in .XLS file format.
But let’s forget for a moment what is or is not an “irregularity,” and get back to the burden of proof for such “misconduct.” On this, Judge Bridges could not be clearer:
With respect to misconduct, whether that misconduct falls in 020 or 011, I think the standard is 29A.68.070, and so I want to say that so you folks have some sense of what I think the ultimate standard of proof is and what the petitioners have to show.
Stick a Foulkes in it, this case is done!
For those of you have followed my analysis (“Foolish Foulkes“) based on my correspondence with “Lawyer X”, I’m beginning to look awfully damn smart right about now. Rossi’s attorneys have based their case primarily on Foulkes v. Hays, claiming the court is not constrained by the narrow standards and remedies set out in the contest statute. But as I previously pointed out, Foulkes was decided on a section (now .011) that has since been pulled inside the framework of the contest statute. Rather than considering .011 in isolation, Judge Bridges has clearly stated that its burden of proof is that set forth under .070.
And in perhaps his most devastating ruling of the day (at least, to Rossi), Judge Bridges indicates that, unlike Foulkes, the contest statute constrains available remedies as well.
I would note first that the Foulkes case, which is indeed a case that I relied on heavily today, I’m sure to the consternation of the intervenors, has now been cited again to me by the petitioners, but at this time I’m going to distinguish the Foulkes case from what I have to decide here because in the Foulkes case, our Supreme Court was faced with the prospect of addressing the election of a county commissioner. And here, this Court is faced with a state executive officer and there are certain constitutional provisions that attach to a state executive officer.
The judge then goes on to cite several constitutional and statutory provisions, before concluding that “a statewide special election is not permitted by Washington’s election contest statute” nor the state constitution.
But a new election was exactly the remedy ordered by the court under .011 in the Foulkes decision. In Foulkes, the court reached to its “general equity jurisdiction” to order a new election, but Judge Bridges clearly and concisely concludes his ruling by stating:
The Court doesn’t have that authority under the statute, or the Constitution, and the Court thinks it should not exercise it on the grounds of equity.
If the court doesn’t have the authority to devise its own remedy, then it also doesn’t have the authority to devise its own standards, and thus the burden of proof is that set forth in .070 and .110. It is not enough that disputed ballots may have changed the outcome of the election, it must appear that illegal votes and other irregularities actually did change the outcome. We can argue all we want over the meaning of the word “appear” (the dictionary says “seems likely,”) but in order to prevail, it appears that Rossi must actually provide evidence that he received more legitimate votes than Gregoire.
I have quoted entirely from the afternoon session, but in closing I want to go all the way back to Judge Bridges first ruling of the day, when he narrowly ruled that the court had “subject matter jurisdiction” over the contest, but set the tone for the rest of the day by immediately citing Dumas v. Gagner as a caveat.
Election contests are governed by several general principles. Chief among them is the principle long followed by this Court that the judiciary should exercise restraint in interfering with the elective process which is reserved to the people in the state Constitution. Unless an election is clearly invalid, when the people have spoken, their verdict should not be disturbed by the courts.
That’s a pretty high standard. As it should be.