by Goldy, 02/23/2005, 1:47 PM

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.

“Clearly invalid.”

That’s a pretty high standard. As it should be.

67 Responses to “Stick a Foulkes in it, this case is done!”

1. dan spews:

I believe we need to have some sort of Bet between the “Snark and Goldy” for the results that happen….of course Tar and Feathers is only available in Red States..and Dueling..well Zell can tell you how that works out. I am thinking something on way of a Guest Article on each others Blog….But I am all for the Tar and Feathers if the snark comes clean.

2. torridjoe spews:

You talk the talk…but can you wonk the wonk?
:)

I’ll give lifetime subscriptions to Also Also for anyone who manages to make it through all of both parts!

3. Josef the Dinocrat in Marummy Country spews:

“Clearly invalid”

Good enough for me. BRING. IT. ON.

4. Daniel K spews:

I hear a buzzing soundpolitics out there. What a shame they waste so much energy on their hopeless crusade rather than real election reform. The broad support for election reform is still out there, but it is being squandered.

5. Chuck spews:

But Gregoir said that this election is a model for others to follow…

6. angry voter spews:

Goldy says its over, so I give up. Please.

7. chardonnay spews:

Oh geez, all based on tj’s interpretation, or Don the state attorney? this is funny, so much bloviating on a big nothing. Is this the WA Dems “Big Bang?” If you are so, ontosomething, why aren’t they asking you to assist on the case?
please explain how stuffing provisional ballots in the machine without verification is just a typical election irregularity.
Strangely enough, discovering that felons voted, have anything to do with Hillary introducing her Felons bill?
I guess you had to post something today. Lets hear what Paul Berendt has to say on john carlsons show this afternoon. PB, yet another gift to the Republicans, thank you for re-electing him.

8. Mr. Cynical spews:

TJ–
I appreciate all the work you have done in pulling this together.
Despite all your hard work, it will still come down to a matter of errors, neglect, ommissions and illegal votes….and how the Judge interprets the word APPEARS. When you cut thru all your verbage, you are clearly saying the R’s have to PROVE FRAUD…but that clearly isn’t what the LAW says. While I will admit you have masterfully gleaned a few glimmers of hope for the Dems….I believe this Judge will not just say oh well to clearly illegal votes, errors, ommissions and neglect.

Now TJ, perhaps if you put all of this information in a BIG BINDER it will scare the Republican attorneys away. Goldy puts a lot of faith in those damn BIG BINDERS.

Oh my God, it’s in a BIG BINDER! We are doomed!!

9. torridjoe spews:

Cynical @ 8

You’re wrong about the law not saying they have to prove fraud; Bridges cites 68.070 specifically, which says that misconduct cannot annul the election unless it is intentionally done to procure a particular result. The word “appears” does not “appear” in the fraud standard; you are thinking of the illegal votes standard.

As for just saying “oh well,” he’s cited a Supreme Court case that says he should do just that.

10. GS spews:

All I gots ta say is today was a good day! Yeahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

CG: Don’t get too compfy in that Governor Mansion!

Yeahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

11. torridjoe spews:

GS @ 10
Why was today a good day? What happened?

12. Mark spews:

Goldy: “…do we as voters… 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.”

Then just say it. “Bush won 2000 and 2004 and the Dems should quit harping about Ohio.”

Daniel @ 4: “What a shame they waste so much energy on their hopeless crusade rather than real election reform.”

Sounds like you’re talking about the Dems “efforts” in Olympia. Why don’t they support showing ID at the polling place?

13. Mr. Cynical spews:

tj–
Soooo…why didn’t Judge Bridges simply throw out the case?

14. Mr. Cynical spews:

Why would Bridges continue this case twice if it was so cut & dried? I have a feeling tj you are in for a bit of a rude awakening. Perhaps it will help if you borrow one of Goldy’s BIG BINDERS to hide behind when the shit hits the fan!

15. torridjoe spews:

Cynical @ 13
Did you happen to read the transcript? He explains why, and it’s something Goldy and I have referred to repeatedly: there are DIFFERENT STANDARDS for accepting causes of contest, as opposed to granting relief based on those causes. The standard is low to get your case heard, but high in order to have your case prevail.

16. GS spews:

OK Ok !!!!!

So I have one question for the democrats who post here!

If in the opinions of the democrats attorneys in Washington state, Felons in this state mostly all voted for Rossi. Than why (please explain to me, Please) are both John Kerry and Hillary Clinton pushing to allow felons to vote?

I am awaiting your answers

17. J spews:

Than why (please explain to me, Please) are both John Kerry and Hillary Clinton pushing to allow felons to vote?

Because they’re not hypocits?

18. GS spews:

Ok Ok !!!!!

Don’t want to slow down the board here with an intelligent question! Truely enjoy this board Goldy, as differing opinions and thought ultimately bring people together!

19. John spews:

GS:

Most felons come out of jail broke and if they’re required to pay some sort of compensation to have their rights restored then this tends to work unfairly against minorities. Many of them never get their civil rights back even if they’re good citizens.

Just restore felons rights after they do their time. No fuss with notoriously inaccurate felons lists like in Florida.

In the case of WA, most felons are male and being the sexist types they are would tend to support a male governor.

20. Jpgee spews:

Mr. Cynicalidiot…now I see the light. The Dem’s have your famous ‘big binders’!!! But you and the rest of your troll brigade have the big ‘blinders’, you know, like blinkers on a race horse……just go the direction the jockey (lossi) asks and see nothing, hear nothing, and as always in your life, do nothing

21. angry voter spews:

John are you kidding? It is unfair to pay damages to society or pay victim resitution? And now you can divine the way a felon thinks? (maybe they really dont think and that is why they are a convicted criminal in the first place) Should a convicted ID thief be allowed to vote? How about a child pornographer, perhaps an axe murederer, maybe a meth cook? They didnt lose their rights, their rights are not a set of car keys that can be lost. They gave them up willingly when commiting crimes that imposed upon other rights. Plain and simple. In the world of fact and reason it is easy to comprehend. But, lest I forget you liberals do not live in the world of fact and reason.

22. Daniel K spews:

Mark @ 12

Why don’t [the Dems] support showing ID at the polling place?

I think they should support ID verification. The standard of identification without that is far too low.

23. Daniel K spews:

GS @ 10

All I gots ta say is today was a good day!

Did you win something today GS? Manage not to fall out of bed? Manage your life one little victory at a time.

24. marks spews:

John @ 19

You undermine part of your argument:

“…if they’re required to pay some sort of compensation to have their rights restored then this tends to work unfairly against minorities.
[...] most felons are male and being the sexist types they are would tend to support a male governor.”

Does the second posit minority males? That kind of assumption leads to the conclusion that you are both sexist and racist…

25. John spews:

marks @ 23

That kind of assumption leads to the conclusion that you are both sexist and racist…

Wow, fantastic reasoning there, marks. Conflation city! You have a great future ahead of you as a producer for Faux News, Rush Limbaugh or Michael Savage.

How about asking me about when I stopped beating my wife?

26. marks spews:

John, when did you stop beating your wife?

27. John spews:

Marks, I’ll tell if you’ll tell.

28. Goldy spews:

Mark @12,

And how much coverage have I given Ohio?

Cynical @13

Oops.. TJ answered you first. (But you really knew the answer, didn’t you, and you’re just being an ornery pisser, right?)

GS @16

As the NY Times reported, none other than the American Correctional Association has recently issued a report recommending that felons have their voting rights automatically restored upon release from prison.

These laws serve no correctional purpose – and may actually contribute to recidivism by keeping ex-offenders and their families disengaged from the civic mainstream. This notion is clearly supported by data showing that former offenders who vote are less likely to return to jail. This lesson has long since been absorbed by democracies abroad, some valuing the franchise so much that they take ballot boxes right to the prisons.

My question is… tell me the benefit to society of not letting felons vote, after they have served their time? What is the benefit to WA state of having 25% of otherwise eligible African-American males disenfranchised due to felony convictions?

29. marks spews:

John,

LOL!

Daniel K @ 21

I agree, but I would add that there are many ways that “ID” is interpreted. Would “picture ID” such as a DL or state ID be the minimum acceptable?

What if the individual has limited means? Costs money to get one, right? That runs afoul of federal voting rights laws. There will need to be some real thought given to any reform where new requirements exist, but to not make the effort reforms would be worse, me thinks…

torridjoe -

“it must appear that illegal votes and other irregularities actually did change the outcome.” [...]
“Unless an election is clearly invalid, when the people have spoken, their verdict should not be disturbed by the courts.”

Compelling argument…hmm…I am just not sure which way I would go…

That said, “Unless an election is clearly invalid” can be proven even within the framework you cite. You and I just don’t know which tree it is in our forested view.

Goldy -

None if their parole is finished. Parole is not restoration of all rights. However, if by not repaying court ordered compensation means not regaining suffrage, that is, well, insufferable, and reminiscent of the Poll Tax. IMO…

30. John spews:

AV @ 21

If the punishment fits the crime and they do their time, then why not let them vote for dogcatcher?

As for facts and reason, I’ll give you credit for that. You reason that the more votes you suppress, the easier it is for Republicans to win. That’s why you want to eliminate absentee voting. All your reform proposals amount to is making it harder for people to participate in the system.

31. marks spews:

And Goldy, if you had asked me that a couple of weeks ago, I would have had a different answer…education is not complete when one graduates from school.

32. George spews:

In one passage of the Bridges’ transcript, he responds to the Democratic assertion that the standard for proof is to show the election is “clearly invalid” (p.20):

… First, the Washington State Democratic Central Committee assert that in order to prevail on this election contest, the petitioners must prove that the 2004 election for the office of governor was clearly invalid. In response to that argument, the Court will indicate this, that the Court believes this argument is premature because the petitioners have not yet been put to their proof. Further, as observed by the Court in the Foulkes v. Hays case, a l975 case, our Court discusses preponderance of the evidence in the case of negligence, and clear, cogent and convincing evidence in the case of fraud allegations in an election contest. Today I’m not determining what the burden of proof is. I just wanted to note that at least that discussion has been made.

It’s “clear” that “clearly invalid” has not been accepted as the standard. In fact, in referring to Foulkes, the judge suggests that the standard might be lower: “the preponderance of the evidence,” at least in the case of negligence, though “clear, cogent, and convincing” in the case of fraud allegations . . .

The next to last sentence on page 20 says it, he really hasn’t decided. Last week he cited the difficulty of establishing the standard of proof as one of the reasons why the trial couldn’t begin as early as the R’s asked, April 4th.

33. Goldy spews:

George…

“Clearly invalid” has not been accepted, but neither has it been rejected. Judge Bridges refused to rule on burden of proof. But he did clearly say that the standard for negligence is .070, and that is very different from the Foulkes case, which relied on .011 alone.

The key, as far as I see it, is that he is not relying on .011 in isolation. Thus Mary Lane’s repeated assertion that all they have to do is show a lot of errors, doesn’t hold water. They are going to have to show some evidence that irregularities changed the outcome. And so far, even they claim they can’t do that.

34. GS spews:

Goldy,

I have no problem whatsoever with Felon’s having their voting rights restored after they have fully fulfilled their duties, which may (I do not know) include payments to parties involved in their cases, after they leave jail. Whatever the judgements have laid down. So I cannot say that I agree that they should be resored once they get out of jail, but do agree when they have satisfied the courts rulings on their case then they should have their rights restored. In the case here in washington however, with the current laws, I believe (agree that these are yet to be scrutinized) these individuals have still not recieved a restored right to vote.

35. George spews:

Goldy– I agree that if M.L. said showing a lot of errors is enough, then she should confer with her own lawyers before commenting again.

But, agreeing with TJ, you said the judge drops several “huge hints” that he might be leaning toward the “high standard” of “clearly invalid.” In fact, he just gives the possible standards. Then he says flatly that he isn’t deciding “today.”

It looks like some of your posters got the impression from your post that “clearly invalid” was in, or at least likely.

Actually, the court will be haggling over this for weeks. In reading the transcript I noted that the judge refers to Foulkes several times, sometimes in ways that would seem to raise the standard, but sometimes as on p.20, in ways that would actually lower it.

36. Erik spews:

Nice post of original source material rather than rants and conspiracies.

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.

Yes, and because the error factor in every state election is always at least a thousand votes, no election could ever be resolved.

Contrary to Rossi’s assertions, re-voting wouldn’t change this either if everyone voted the same. The election would continually be within the margin of error and a no one would ever be selected.

Thus, having a re-vote anytime the marigin of error was greater than the margin of victory is an unworkable election policy.

37. angry voter spews:

John@ 30

It apparently isnt too difficult to vote now, even dead people can in Washington, a couple felons, some special folks even got to vote twice. Get a grip, we just want accurate and fair elections, until you can match votes with voters it simply cannot be accurate.

Now before all of you feel good liberals try and tell me the vote count reconcilation is “subjective”,”complicated” or “irrelevant to the outcome” and site other incompetent Democrat Auditors, I say this; smoke and mirrors, red herrings, wild goose chase and snipe hunts. What do they all have in common? -The Washington State Demorat Party political machines tactics. You all should really change mascots from the jackass to the ostrich. Because you certainly have your heads buried somewhere and it isnt a hole in the ground.

38. Jpgee spews:

ANGRY VOTER, by your comments and descriptions…the democrats must be the same as the repugnicans. all your comments fit you and your neopug’s ideals to a TEE

39. chardonnay spews:

Don says contractors and paving companies are lining up at the trough, LOL. Don, the people at the trough are the enviros, #1. Tell me Don Esquire, who gave Boeing a big payroll tax break?
You are so stuck in your 60′s commune way of thinking, scary big evil corporations. The other 60′s I ain’t working for the man! 45 years later you still repeat.
I say again, this election is all about Gregoire and friends holding on for dear life to the pension plan. The New Sheriff, Rossi, IS coming to town. In some form or another. Are you really that secure at the AGO? Really?

40. dan spews:

Chard

Left you a little something on the Previous Blog, similar to the stuff you spew here. actual most of it was for Cyn, because even in his warpped self centered universe, he tends to bring something to the table. But it could be addressed to you as well, because you think that left alone that big corporations would make big paying jobs for everyone and there would be no poor…we tried it in the late 19th century. I am sorry you don’t understand the value that unions still bring to a state, ask the employees of Texas what it is like to have a reverse bid on your job…who will do it cheaper, is the best way for Cynical to make money in the stock market, while the middle class dissapers. with all the poor, let’s get them hooked on gambling with their Social security.

41. Mrs. Cynical spews:

Sigh. . . Mr. Cynical has such a small binder. I’m bored. . . anyone wanna play?

xoxo

42. reggie spews:

Okay let’s say just for a minute that I am a felon voter…

(reggie you are a felon voter)

They drag my ass to court to ask me who I voted for…so if i want Dino to win I tell you that I voted for Chrissy right? And what ya gonna do, give me a lie detector test?

Doncha think that the judge knows this? I’d think that he’d tell the R’s that the case is unprovable unless he had something else in mind. He doesn’t want to waste his time or the time of the people.

43. Goldy spews:

Um, Reggie… the judge just about did tell the R’s the case was unprovable:

Although it may be problematical for petitioners to ultimately prevail based on a theory or cause of illegal votes…

He was simply following .090 in proceeding with the contest. (You know, they’re supposed to decide these things based on the law.)

44. Don spews:

chardonnay @ 7

You have a talent for irrelevancy.

cynical @ 8

You purport to lecture us on the law when you can’t even spell “omissions” and “verbiage”?

GS @ 10

Goldy’s legal analysis is, um, shall we say, more substantive than yours.

Mark @ 12

I agree, Bush won 2000 and 2004 and the Dems should quit harping about Ohio. Happy now? [shrug] I agree, why should we Democrats waste our energy on a lost cause? Let Rossi do it. He seems to enjoy it, and has nothing else to do with his time.

Cyn @ 13

Man you are hopeless. Surviving a motion for summary judgment is a long way from cashing a check.

George @ 32 & 35, Goldy @ 33

The standard of proof applicable to election contests is set forth in RCW 29A.68.050 as follows: “The court shall … determine such contested election by the rules of law and evidence governing the determination of questions of law and fact[.]” In other words, the statute does not establish any special rules for election contests, so the rules of general application apply. The clear, cogent, and convincing standard of proof only applies to fraud, and the GOP isn’t alleging fraud, so look for the judge to go with preponderance.

Chardonnay @ 39

“Don, the people at the trough are the enviros, #1. Tell me Don Esquire, who gave Boeing a big payroll tax break?”

Not the enviros. Tell me what money the enviros are getting from the state? (I know, but want to see if you know.)

45. torridjoe spews:

don @ 44

Are you sure there are no special rules? 68 .070, .090, .100 and .110 all seem like special statutes for contested elections to me. And Bridges refers to them specifically as the applicable contest statutes.

I understand you’re talking about general burden of proof standards, but he’s already set out what statutes he’s going to use to rule on misconduct and illegal votes–neither of which rely on very low standards at all…something Bridges also made clear: the prevailment statutes are high burdens.

46. Don spews:

tj @ 45

Those sections set forth the basis or criteria for setting aside an election, but do not address standard of proof. “Standard of proof” refers to the degree of certainty to which the essential facts must be proved, e.g., preponderance, clear and convincing, beyond a reasonable doubt. A “special rule” is one, established by statute, court rule, or other means, established for the particular class of cases that deviates from the norm. For example, the generally applicable standard of proof in civil cases is preponderance, except in fraud cases it’s clear and convincing (or clear, cogent, and convincing). An election contest is a civil case; to overturn an election on the basis of fraud, you’d have to prove the fraud by clear and convincing evidence; but to overturn an election on a non-fraud basis, such as illegal votes, you only have to prove your case by a preponderance of the evidence. The Legislature could have enacted a “special rule” for election contests stating that elections should only be overturned on clear and convincing evidence, but I don’t see that (or any other statement addressing standard of proof) anywhere in Chapter 29.68A RCW.

Also, don’t get overly ecstatic about a 1912 case. There has been a sea change in American law since then. Common law has been replaced by statutory law, and legal reasoning has given way to statutory interpretation. Judge Bridges may wish he had lived in the time of the great common law judges, but he was born 100 years too late, and he has already acknowledged that dry statutory language, not equity principles or inherent judicial powers, circumscribes what he can do. Like the rest of us, he is handcuffed by the penchant of modern legislative bodies for micromanagement. He isn’t going to rely very heavily on that old case to justify his ultimate ruling, whatever it is. His opinion will be heavily laden with references to sections of the statute and consist largely of an explanation of what the statutory language means.

47. Dan spews:

HA! Tar & feathers? I’ll supply both!

48. Dan spews:

Hey there, Daniel K: We want the neocons wasting their energy… And hopefully their money, too.

49. torridjoe spews:

Don @ 46

Thanks for your explanation. Responses:

I disagree that there is no reference to standard of proof in RCW 68. There may be no explicit reference to the standard types of degree, but .110 lays out very plainly that it must seem likely that a number of votes was cast for a candidate, to the extent that the candidate no longer has the most votes if you take them away. Because ‘some number’ must be positively identified, and you can’t positively identify them without actual proof of who was voted for, that standard goes beyond preponderance. Foulkes did not require that the actual number of ballots added up to a change in the winner, only that a pattern could be established within the subset of votes being examined. The trial judge accepted the evaluations of 46 out of 54 votes reviewed, and extrapolating that proportion to what was known to be a larger group of such ballots, set aside the election. If Rossi can establish a pattern of voting for his felon votes, he may also benefit from extrapolating from a sample of them…but ‘some number’ must initially be supplied to establish that pattern, IMO. Otherwise, there is no definitive way to establish how the ballots in question were voted.

On Hill and other cites as evidence of his leanings: I think it’s a little unusual to suggest that someone’s not going to rely on cases they take the time to refer to repeatedly. Bridges specifically links the interpretive view of Hill, to the statutory requirements of .110. Bridges cites the statute, then says, “This same requirement was recognized early in our state’s history when in 1912…” He can’t be too much clearer, IMO: he lays out the code, then says, “and this is how I read it.” And then goes on to suggest that it may be problematical for petitioners to prevail on the illegal votes cause. Put those three references together, and I don’t think it’s unwarranted to reach some tentative conclusions about Bridges’ perspective on the state of the law in this area.

And certainly nothing has changed in the structure of the law since 1999, when Bridges cites Dumas v Gagner to state the reticence of the courts to overturn elections, as a general principle. “Clearly invalid” suggests a higher burden than preponderance overall, and Bridges is telegraphing that he will apply this general principle to his view. Too, he says elsewhere again that the history of election contests suggests a high standard of general proof (not to be confused with specific standards relating to particular questions).

Finally, your reference to page 20: I agree that no standard was laid out definitively. However, the Foulkes citing referring to preponderance of negligence is a poorly applicable standard for this case on that specific point, IMO. In Foulkes you had a situation where bags were locked, but the key to the lock attached to the bag. That’s child’s play to make a finding of negligence in that case, IMO. What Bridges is doing in that section is refusing to dismiss because a) it’s premature, and b) it can at least be argued that the standards of proof have yet to be addressed, and so to dismiss based on not meeting the standard, is not possible.

I certainly won’t deny that Bridges made no definitive rulings on proof standards and the direct implications of the rules laid out in 68.110. But as I said in the article, he drops several broad hints–and I stick by that.

50. Chee spews:

Plenty of hard truth in the court transcript re Rossi case. Very revealing if you open your eyes to what it says. TJ summed the election gestalt up well, “Shit Happens.” Rightly so. And opinion is one thing, law another. Rossi’s case doesn’t have enough merit to go to hell in a handbasket.

51. Goldy spews:

Don @46, TJ @49,

As a non-lawyer, I guess I was guilty of conflating the “standard of proof” with the criteria for setting aside the election. But I think what is most significant in the transcript is not when Judge Bridges relies on Foulkes, but when he clearly differentiates from it. Remember TJ, that the extrapolation in Foulkes was done entirely under .011 (in isolation from the rest of the contest statute) and the court’s equity jurisidiction. But Bridges has already stated that the “standard of proof” for .011 and .020 is that laid out in .070.

The R’s have always hoped the court would rule based on Foulkes, and not a strict interpretation of the statute. What Bridges appears to have signaled is that he will rely on statute, and not equity. Whether the standard is proponderance or clear and convincing, the R’s will still have to show that Rossi likely received more legitimate votes than Gregoire. It is not enough to just show that it is possible, which is what the Rossi camp is still telling the media.

52. torridjoe spews:

Goldy @ 51

That’s what makes me think Rossi’s got nothing–the fact that in public they’re clearly arguing something no sensible person believes the law allows: that you only need to compile errors greater than the margin of victory. That’s the grounds for contest, not prevailment.

53. Don spews:

TJ @ 49

“If Rossi can establish a pattern of voting for his felon votes, he may also benefit from extrapolating from a sample of them…but ’some number’ must initially be supplied to establish that pattern, IMO. Otherwise, there is no definitive way to establish how the ballots in question were voted.”

I think it’s possible (but uncertain) Judge Bridges may adopt such a methodology based on the statutory term “appears,” but the question still remains what standard of proof must be satisfied to “establish the pattern” so to speak — clear and convincing, preponderance (i.e., more likely than not), or less than preponderance. If I were a Republican lawyer, I would argue that “appears” refers to the standard of proof and sets it at a lower threshold than preponderance — i.e., I would argue for a civil case version of “reasonable suspicion” or not higher than “probable cause.”

“I think it’s a little unusual to suggest that someone’s not going to rely on cases they take the time to refer to repeatedly.”

The difficulty with old cases is that in many instances the legal rules they established have been modified by subsequent legislation. However, sometimes the legislation didn’t change the basic legal rule but rather codified it, fleshed it out, or limited (or expanded) it. To reconcile caselaw with subsequent statutory enactments, a judge has to compare what the judicial opinion says with what the statute says, and decide whether they’re inconsistent or complementary, or a mix of both. Because election contests are few and far between, there isn’t much caselaw to aid in interpreting the statute, so Judge Bridges will look to what there is to glean an understanding of what the Legislature had in mind (i.e., legislative intent), but it is the statute that controls; and to the extent that old caselaw has been overturned or modified by legislation, it will not govern. I don’t think the fact Judge Bridges has cited to what caselaw exists is indicative of how he’ll use it in reaching his decision. It’s still too early in the case; he’ll wait until he hears the lawyers’ arguments.

“And certainly nothing has changed in the structure of the law since 1999, when Bridges cites Dumas v Gagner to state the reticence of the courts to overturn elections, as a general principle. ‘Clearly invalid’ suggests a higher burden than preponderance overall, and Bridges is telegraphing that he will apply this general principle to his view.”

The point of misunderstanding here is what the GOP must show to set aside the election, which is different from the standard of proof that must be met to establish the facts showing it. To understand the context of the Dumas court’s reference to the “general principle” of “clearly invalid,” it is helpful to read the entire passage: “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 . . . .’ In adhering to this principle of judicial restraint, this Court has adopted the rule that an ‘informality or irregularity’ in an election which did not affect the result is not sufficient to invalidate the election.” Dumas v. Gagnon, 137 Wn.2d 268, 283 (1999) [footnotes omitted]. This should make it clear that when the Dumas court talks about “clearly invalid” it is not discussing the standard of proof but rather the legal presumption that elections are valid. The existence of the presumption of validity does not dictate whether facts must be shown by a preponderance, clear and convincing, or other standard of proof but rather goes to what must be shown.

“What Bridges is doing in that section is refusing to dismiss because a) it’s premature, and b) it can at least be argued that the standards of proof have yet to be addressed, and so to dismiss based on not meeting the standard, is not possible.”

I think this is a fair interpretation of the current status of th case, although I might word it slightly differently. By refusing to dismiss, the judge acknowledged that the GOP are entitled to relief if they can prove their allegations. You are correct that he has not yet addressed the standard of proof question.

54. Don spews:

Goldy @ 51

“Whether the standard is proponderance or clear and convincing, the R’s will still have to show that Rossi likely received more legitimate votes than Gregoire.”

You’re on the right track, Goldy, but I don’t like the word “likely” here. I think the R’s have to show that Rossi received more legitimate votes than Gregoire. No adjective or qualifier belongs in front of the word “received.”

“It is not enough to just show that it is possible, which is what the Rossi camp is still telling the media.”

This all revolves around interpretation of the word “appears” in the statute. Here is where our r/w troll friends go astray by falling to the common layman mistake of attaching a vernacular meaning to a legal term of art, which leads them to erroneously conclude the word “appears” is a synonym for the word “seems” and therefore allowsa the presumption of validity to be overcome by evidence that leaves a great deal of uncertainty as to who actually won the election. A legal dictionary defines the term as: “To be in evidence; to be proved” (Black’s Law Dictionary). In other words, it’s not good enough that it “seems” from illegal votes that Rossi won the election; the fact Rossi won must be “in evidence” and “proved.” That’s quite a bit different than the GOP interpretation, isn’t it? This is what Judge Bridges was talking about when he warned the GOP’s attorneys that they faced a high hurdle.

55. JCH spews:

Don: “Guvment Democrat Hack Cheater”…felons, dead voters, double voters, black districts in King County that vote at 115%. Anything to not have to work in the private sector, right, Don??

56. torridjoe spews:

Don @ 53

good stuff! Your comments are helpful.

you say:
To reconcile caselaw with subsequent statutory enactments, a judge has to compare what the judicial opinion says with what the statute says, and decide whether they’re inconsistent or complementary, or a mix of both.

I say:
And that’s very definitely what he’s already done, as I noted. He cited the statute, then IMMEDIATELY equated that statute to the principle cited in Hill, by saying “this same requirement…” Obviously, if he believes they share the same basic requirement, then they are not only complementary but apparently functionally equivalent, IMO.

You say:
If I were a Republican lawyer, I would argue that “appears” refers to the standard of proof and sets it at a lower threshold than preponderance – i.e., I would argue for a civil case version of “reasonable suspicion” or not higher than “probable cause.

I say:
And if I were the opposite counsel, I would note that “appears” may be interpreted as “seems likely,” from the Latin apparere, “to show.” I would personally argue that to be “likely” is in fact a clear and convincing standard rather than the “barely probable” 51% rule of preponderance. I say this because the burden of proof in general is placed squarely upon the petitioner in terms of evidentiary support. King County needn’t prove they did everything right; Rossi needs to prove that certain voters did wrong.

Further, to rely on “more likely than not” in turn would probably have to rely on something akin to proportionality, whereby votes could be allocated based on overall voting patterns. In other words, it would only be “more likely than not” if the voting pattern resulted in a strong likelihood that felon votes would follow the pattern enough to give Rossi the win. Proportional probability isolates the likelihood of a single outcome based on many possible outcomes. That does not, per se, speak to the likelihood of the particular theorized outcome.

Let’s see if I can explain that clearly: the probability that Gregoire would get more felon votes if you ran (eg) 100 elections, does NOT mean that in a given election (ie this one), it is more likely than not that Gregoire got more of the votes. In other words, while Gregoire may be statistically likely to win the vote to varying degrees in 60% of the 100 elections, it does not address whether THIS PARTICULAR ELECTION would be one of the 60, or one of the other 40 outcomes.

So I think the probability pattern of the felon vote would have to be so skewed towards Gregoire, as to make the judge confident that for this election, it is truly more likely than not that she got that proportion of the votes. However, I can accept that Bridges might not go that far–but IMO that only brings the burden down to a minimum preponderance argument, not all the way to “reasonable suspicion.”

I’ll accept your distinction on Dumas, to a point. The context in which Bridges applies it in his ruling is narrower than the entire context in which you place it. And I still believe that a standard of preponderance used to accept findings of votes, results only in a “very possibly invalid” election. I understand what you’re saying about ‘invalid’ as a legal distinction unto itself, but I’ve got extreme cognitive dissonance about evidence tested at a preponderance level, leading to a “clear” finding of invalidation.

Thanks a lot for your comments.

57. torridjoe spews:

Don–is Black’s online?

58. Goldy spews:

Don @54

Thanks for the Black’s Law Dictionary definition of “appears”. I had checked a couple online legal dictionaries, and none defined the word in this context.

Hey… maybe I should start referring to you as “Lawyer D”…?

59. Don spews:

JCH @ 55

Thank you for your thoughtful rebuttal of my comments in #54 above. I have a suggestion: Let’s get the parties to send their lawyers packing and agree to settle this election dispute with a duel of sorts. I’ll file a brief and you’ll file a brief with the court, and may the best argument win. How about it?

60. Don spews:

TJ @ 57

Of course not. The publisher wants you to go to a bookstore and pay $60 for it.

61. Don spews:

Goldy @ 58

I’ve been called worse …

62. JCH spews:

59……Don…..Who will pay your “guvment” salary while you “file a brief”? Answer: taxpayers, who always pay “guvment” hacks like you who can’t make it in the private sector. BTW, Don………LT, USN [76-84]. And I didn’t carry a typewriter like Goldy or you.

63. dan spews:

JCH @ 62

sounds like a Guvment job there,Leuitenant. JCH?? stands for Jesus Christ Hates? (couldn’t find it in the bible, but neither could the first crusaders into the middle east) cause you’re a definetly a hater.
Get lonely on those ships full of seamen Leuitenant? or did you get used to packing those big long guns with those large projectiles. or were you the projectee…hey your right, this is fun, making personal attacks on people while not addressing the comment. the difference is you trash Don who brings reason to the Blog, while you being the former target of rear missles from your captain bring nothing. see ya Cabin Boy.

64. Don spews:

JCH @ 62

No, you got it sdrawkcab ssa. (If you can’t figure out what this means, try reading it from right to left.) It’s the GOP lawyers who are being paid with tax money, to be precise, L & I taxes scarfed up by BIAW. But help is on the way; the Democrats in the Legislature will soon put a stop to that nonsense.

65. Don spews:

dan @ 63

This guy JCH definitely has nothing in common with Jesus C. beyond two initials. No, I think it stands for Jerk-off Creepy Hater.

But hey, I respect your service to our country, JCH, even if you are a low-life slinking Republican. I’m happy for you that you didn’t have to do Nam. I spent a little time on a Navy hospital ship once, and all I can say is Navy food and sleeping between ships beats shit out of eating C’s and sleeping in a hole in the ground getting shot at. I don’t begrudge the soft Navy life to you, man. But I’d rather not have a Navy j.g. in the same foxhole with me when the shit hits the fan, know what I mean. Don’t take that personally, it’s just a survival thing.

66. Don spews:

ooops I meant “sleeping between sheets”

67. Chee spews:

Don. When your talking about or dealing with political issues or topics…”sleeping between the sheets” sounds about right. They say, “politics makes for strange bed partners.” :0