What does it take to set aside an election?

In Sunday’s Seattle Times, David Postman lays out Dino Rossi’s options in challenging the results of the hand recount in the gubernatorial race. [Votes tallied for governor, but what’s next is unclear]

It’s a pretty straightforward discussion, though I do take issue with one very important misstatement. Postman continues to refer to the 735 disputed ballots as “rejected,” but the Supreme Court decision made it clear that these were misfiled ballots that never had their canvassing completed. This is a potentially significant legal distinction.

As to what we can expect from a contest, Postman only cites one example of an election contest that resulted in setting aside the results of an election. This concerned a 1974 Adams County commissioner race, in which the courts determined that a number of ballots had likely been altered between the original count and the recount. I’m not exactly sure if this says anything about our current situation, but I encourage you to read Foulkes v. Hays for yourself before educating me as to your own opinions on the case.

The burden of proof is quite heavy. Rossi would have to find enough errors or fraudulent votes sufficient to change the outcome of the election. 130 errors is not enough — there have to be enough errors to result in a net advantage to Gregoire of 130 votes.

My guess is that if we don’t start hearing soon about some hard evidence of fraud or misconduct, Rossi may skip an election contest, and go straight to federal court. Or, he may just lick his wounds and concede.


  1. 1

    David spews:

    I doubt the Republicans will go to federal court. Postman is correct that Republicans “could claim” differential treatment for King County ballots, alleging that King County (and only King County) got to reconsider rejected ballots. That would, presumably, be the basis for an equal protection violation lawsuit a la Bush v. Gore—but such a claim is likely to go nowhere because the facts don’t support it.

    Postman’s article, although generally good, makes one major mistake. King County did not “reconsider previously rejected ballots.” The State Supreme Court ruled that King County could finish counting/rejecting ballots that had not been considered because of a filing error. Other counties did the same. There wasn’t a different standard for King.

    An equal protection case on those grounds is doomed, and the Republicans’ lawyers surely know it. I can’t imagine they want to set themselves up for an embarrasing loss, so I doubt they’ll make a federal case out of it.

  2. 2

    bby spews:

    In the reporting lull until Reed issues certification, what if reporting is all that is left. This has been the hotest story in the local media for weeks now. All media are riding it with great effort and determination, making many errors.The blogers here write better pieces with respect to corect definitions of terms and what is going on.

    Postman has R’s spinning him. He took the bait, interesting maybe story absent any real news on the topic. Editor off his back.

    Flash!!!! The homless have the right to vote- Flash!!!!!! Washington counties send provisional ballots to Alaska if voted here by Alaskans, been doing it for 25 years. Too logical for some minds- Flash!!! No county kicks people off voting rolls just because some guy in Seattle thinks they should. Procedures and rules for all that, consructed o favot voters rights- Flash!!!!! Aggresively contacting voters after the Lum decision was brilliant on the Dems part. Siting on your butt and complaining that Dem volunteers gave up their weekend to do this critical work was utterly stupid. Maybe cost Rossi the election.

    Brilliant? Think not at all. Insipid and vulgar.

  3. 3

    Josef spews:

    Chris Vance is calling a press conference this morning about the mess in King County…


  4. 4

    motorhomeman spews:

    I agree with you that the R’s should have done more after Lum’s open-ended ruling. However, what you term “aggressively contacting voters” went far beyond that. That is what will surface in due time.
    “Neglect”–Dean Logan’s maintenance of the King County voter registration database.
    “Error”–too many to count.
    “Wrongful Act:–including but not limited to voter fraud (much of it a result of neglect on the part of election officals like Dean Logan.
    Clearly forged signatures, felons voting, voting in more than once (in-state and out-of-state, dead people etc. etc.

    It appears the R’s don’t necessarily need to prove how these 130 required examples of “neglect, error or wrongful act” actually voted. That would be impossible. It is why Logan wanted these votes counted quickly and co-mingled…so specific illegitimate ballots couldn’t be later identified. I agree that voter privacy is an issue. However, co-mingling likely works in the R’s favor. The R’s cannot be expected to prove how any of these examples actually voted. The problem the Court has is no one can prove they didn’t vote Dem. This gets mighty tricky I suspect. The R’s will likely have to come up with 130 slamdunk, irrefutable examples (ie multiple votes, felons, forgeries etc. etc.) and it would be helpful to their case if they could show these wrongful acts were a result of Dem activist fraud OR election official neglect.
    Watching this one play out will be a soap-opera.
    Goldy–I agree you can’t just depose people willy-nilly about how they voted. That’s not the point Goldy. You will see the point in due time.

  5. 5

    jcricket spews:

    motorhomeman – First it was you have iron-clad proof that Larry Phillips had committed some kind of fraud. Then it was the Republicans will bring up their examples of fraud in court. Now it’s “of course they can’t prove fraud because the ballots have been comingled” – so you turn to “you will see the point in due time.” You’ve always got some excuse for why what you said would happen, doesn’t.

  6. 6

    jcricket spews:

    And Josef – Chris Vance has had press conference after press conference. Doesn’t seem to have much effect. Republicans with official positions (Sam Reed, Dean Satterberg, county auditors, judges) always seem to shoot down his arguments because he fails to back them up. I have no doubt that if there was a “smoking gun” of fraud, Vance would have been trotting that out to at least the media, instead of his lame “1990 memo” (remember how that was supposed to prove something?).

    I have no doubt that this is a gambit on the part of the Republicans to continue to allow them to gain political capital out of the phrase “stolen election” or “liberal activist judges”. That’s the only hope that Republicans have at this point (inflaming people enough that they vote R in the next election).

  7. 7

    WesternFlyer spews:

    I thought the Postman article was pretty simplistic/bad. It was good in parts, but missed the boat on the critical points. First, as you point out, Postman missed the point on the 735 ballots that were the suject of the second decision by the Washington Supreme Court this month; they were not rejected. Second, he intimated that in a contest you could just to show mistakes/error. The statute requires that you show quite a bit more than that (that is, bribery by the candidate, illegal votes).

  8. 8

    motorhomeman spews:

    Nice try twisting my comments (as usual)
    I never, ever said Larry Phillips committed voter fraud.
    In fact I said I would be ticked, just like Phillips, if my legitimate vote wasn’t counted.
    The Phillips issue is an example of voter registration database neglect in King Co. His scanned signature “disappeared” from the KingCo database but was in the State database (which received it from the County). PHILLIPS IS AN EXAMPLE OF DISENFRANCHISED…HOWEVER THE SAME NEGLECT THAT FAILED TO COUNT HIS VOTE, COUNTED ILLEGITIMATE VOTES.
    jcricket is a skilled Dem “spinner”. Go ahead & continue to misrepresent my points if it makes you feel good.
    The illegitimate votes must be clear, hard examples for the R’s to get this election set aside. Either they have it or they don’t.
    It is Berendt who brought in the affadavits jcricket. Are they all legitimate??? If the Dem activists who brought them to Berendt are as overzealous as you, I doubt it.

  9. 9

    Josef spews:

    The conference is at 11 AM today, KVI may carry it. Let’s hope the Vaninator lets Mary “Marummy” Lane do the talking…

  10. 10

    motorhomeman spews:

    I don’t expect Vance to be dumb enough to lay out the R’s entire case in a press conference. I expect this will be short and simply let us know they are moving forward. Maybe an example or 2 of the “errors, neglect & wrongful acts” just to give us all something to chew on but not the whole case. Keep in mind, The R’s never were in the position to want the election set aside as long as they were ahead in the count. I mean who would strive to set aside an election that they won??!! Things have obviously changed. It’s put up or shut up within legal timelines…not our timelines folks. Aren’t we all just wiggling & squirming wondering what evidence the R’s have showing 130 “wrongful acts, errors or neglect”?

  11. 11

    jcricket spews:

    My what short memory you have. Republicans already had a chance to present evidence of ballot security problems at the last Supreme Court case. The Supremes pointed out that the Republicans offered only accusations, no evidence. That was “put up or shutup within legal timelines”. The Republicans failed. Miserably.

    When it’s just a press conference, talk radio or a blog, Republicans are good at throwing out accusations, but they haven’t (in this case) ever been able to present real evidence of misdeeds when it actally counts.

  12. 12

    motorhomeman spews:

    I’ll bet you can hardly stand not knowing what the R’s have. As a skilled Dem “blog-spinner”, it’s your job to dig and try to minimize whatever the R’s come up with. It’s frustrating not knowing, isn’t it?? Perhaps a good New Year’s resolution for you jcricket would be PATIENCE. When you try to justify clear wrongful acts on the part of some voters and overzealous Dem. activists, you will only create more support for the R’s. I can’t wait to sit back and watch you spin like that rare bird the “darkinere”. You know, the bird that flies in tighter & tighter circles at an accelerating rate until the inevitable happens and he flies up his own ass.
    jcricket—Head “darkinere”!

  13. 13

    motorhomeman spews:

    And jcricket…you skillfully avoid the issue that the R’s have not had to put up examples of voter fraud yet BECAUSE THEY WERE AHEAD until now. Why in the hell would the R’s build a case to set aside an election they were ahead in?? You are cleverly trying to confuse issues. No sale here dude.

  14. 14

    Goldy spews:

    Keep in mind, The R’s never were in the position to want the election set aside as long as they were ahead in the count.

    Keep in mind that both parties had advanced information of how the vote counting was going in Snohomish, Pierce, Spokane and King, and thus the R’s have known they were likely going to lose, regardless of the 735, for almost two weeks.

    I’m telling you, the R’s PR campaign is nearly as transparent as the decisions of the KC canvassing board. (Meaning, “very.”)

  15. 15

    Josef spews:

    Well, I expect today’s press conference to be the beginning of the dossier of the case for a clean new election… or the beginning of the end.

  16. 16

    motorhomeman spews:

    You don’t seem to want to understand the issue here. It’s not about the R’s “knowing they were likely going to lose”. That is ludicrous. Why would you try to set aside an election based on “likely to “?? Goldy, a lawyer you aren’t!! Me either, but I know that the height of stupidity would be to successfully set aside an election and then have it turn out that “likely” didn’t happen and you actually set aside an election you won.
    Again, there are now legal timelines for action that need to be followed and the R’s must put up or shut up. Let’s leave it at that!

  17. 17

    Richard Pope spews:

    Rossi’s best bet is to show discrepancies between the list of names of everyone who voted in a given precinct, and the number of ballots counted in that precinct. By “everyone who voted”, I mean those people whose ballots were accepted and supposedly tabulated. This mean the people who signed the precinct polling books, and the absentee and provisional voters whose envelopes were opened and ballots taken out for tabulation.

    If there are more ballots tabulated in a precinct (or in a given category — broken down by poll, absentee and provisional) than actual people whose votes were accepted, that means that an illegal ballot was cast in some manner by someone other than a lawful voter who actually voted and had their vote accepted.

    On the other hand, if there are fewer ballots tabulated in a precinct (or in a given category — broken down by poll, absentee and provisional) than actual people whose votes were accepted, that means that a legal ballot, cast by a lawful voter who actually voted and had their vote accepted, was discarded in some manner.

    Next, you take the database of registered voters — which is on computerized format for every county, and a public record, and run a program comparing it with the Social Security Administration death database, also a public record. That way, you find out which registered voters are actually dead. Even though the RCW says that death certificates go to the county auditor and SOS to remove dead people, some counties — especially King — still have a lot of dead people on the voter rolls. Once these dead voters are identified, you check to see how many of them voted. Obviously, such a vote is an illegal vote, since it was not actually cast by the person registered.

    Next, you do the same thing with the Department of Corrections list of known felons, which would also be a public record. You see how many convicted felons are on the voter registration rolls, and identify those who voted. You must also check the superior court criminal conviction file, to see if voting rights were restored by court order. Even though those rights can be restored automatically one to three years after release from prison, it requires payment of all financial obligations — which often never happens. Once again, if you get a match, you have an illegal vote cast by someone who is not qualified.

    You can also obtain convicted felon databases from other states that you figure people are likely to move from that live here — like California, Oregon and Idaho. Or maybe call your good friends at the Florida Secretary of State — which does a very aggressive felon removal program, and probably has a good national database already. tabulated in a precinct (or in a given category — broken down by poll, absentee and provisional) than actual people whose votes were accepted, that means that an illegal ballot was cast in some manner by someone other than a lawful voter who actually voted and had their vote accepted. Many other states do not have procedures in their laws to automatically restore felon voter rights by court order — i.e. Florida requires the Governor to do something, while Louisiana and Massachusetts have no restoral procedures since felons there are denied their rights only during incarceration. While felons with convictions in these states could, in theory, petition a Washington court to allow them to vote in Washington, odds are they have not done so. Again, a large source of potential illegal voters. Just remember that convicted felons are at least as mobile between the states as the rest of us are.

    If the GOP wants to pull a few strings, get the U.S. Attorney General and Dept. of Homeland Security to run the voter registration database against (1) the list of legal resident aliens, (2) the list of known nonresident aliens, and (3) the social security list of SSN holders — which includes practically every U.S. citizen (not all, of course, if someone was born here to foreign parents, moved abroad, and has never worked or paid taxes here — they are still entitled to vote in the state of last residence). None of these databases are public records. However, the federal government has a legitimate interest in finding aliens who break federal law by voting. Running the database comparison would not require any sort of search warrant or even probable cause. The results could be then be publicly disclosed, either by filing federal criminal charges, or as a matter of legitimate public concern. Again, a source of illegal votes.

    None of these matters requires proving how any of these wrongful acts and errors affected the election. You don’t have to prove that the illegal vote was cast for Gregoire, or that the missing ballot was cast for Rossi. Nor do you have to prove that Gregoire or her supporters had anything to do with the error or wrongful act.

    All Rossi has to do is prove 131 of these kinds or errors or wrongful acts, and the election results must be set aside. This must happen under our state election contest laws. It would also happen in federal courts under federal constitutional law, since the counting of unlawful ballots or the discarding of lawful ballots violate both due process of law and equal protection.

    Had Rossi been ahead in the third count, Gregoire would have been able to do exactly the same thing that I have pointed out, and also have the election set aside.

    In either case, Rossi would probably win a new election handily, regardless of whether his “victory” or Gregoire’s “victory” was set aside. While the courts cannot say which candidate benefited by these sorts of errors or wrongful acts, the general public would tend to believe Gregoire benefited the most. It would be held against Gregoire, even though there would be absolutely no proof of her own personal responsibility. The voters have also increased their opinion of Rossi since the election, and decreased their opinion of Gregoire.

  18. 18

    motorhomeman spews:

    You are pretty much right on Richard. I’ll bet these Leftists are scrambling now to figure out how to spin all this!

  19. 19

    motorhomeman spews:

    Oh and Richard..I believe they only need 130 hard examples to set this aside. Immaterial because there will be many more than that, don’t you think?

  20. 20

    TJB spews:

    Goldy – I agree the KC canvassing board was extremely transparent. Didn’t everyone see them on TV holding up ballots to lights in order to determine voter intent? You can’t be anymore transparent than that about what the board is trying to get away with. I know I felt better about how things were being run by the KC canvassing board after seeing that…NOT!

  21. 21

    jcricket spews:

    TJB – did you read the quotes from Dan Satterberg, the Republican member of the KC canvassing board? He states that less than 1600 votes re-counted were contested, and less than 20 of those had a non-unanimous canvassing board decision.

    Dan’s got every reason to accuse KC of fraud, and is in the perfect position to see it. The Republican observers (standing behind the people holding the ballots up to the light) have ever reason to accuse KC of fraud, and are in the perfect position to see it.

    The fact remains that no one in an actual position to see the fraud occur has offered any proof. In fact, the Republicans most in the know ((Satterberg and the observers) have actually indicated the opposite – that the recount is very accurate, non-partisan and fraud-free.

    Besides, you do know that the other counties did exactly the same thing during the recount, right? If a ballot is lightly marked, they hold it up to make sure they are seeing the right thing. Someone looking closely at a ballot equals election fraud only in the mind of the Republicans.

  22. 22

    jcricket spews:

    I forgot to mention – the counties that use punch-cards and have “chad” issues (remember Florida) are decidely Republican. I guarantee the Republican canvassing boards in those counties dealt with issues like handing chads, depressed chads, number of corners punched out, etc.

    But I don’t see Republicans complaining about the decisions of those boards.

  23. 23

    Goldy spews:

    You don’t seem to want to understand the issue here.

    Motor… no, you don’t want to understand the issue. I’m talking about PR. The R’s have been fighting this election in the court of public opinion since day one, and they’ve never stopped. The moment they relealized they were likely going to lose the manual recount, their message started to focus on fraud and corruption. If they had evidence to support that — even shoddy evidence — they would have presented it to the public.

    This isn’t just about winning the election. It’s about undermining Gregoire if she wins.

    All Rossi has to do is prove 131 of these kinds or errors or wrongful acts, and the election results must be set aside.

    Richard… no, that is not true. Else every close election would be set aside, as no vote counting system is perfect. It is not enought o prove that enough errors occurred that they may have changed the outcome. They have to prove that enough errors occurred that it likely did change the outcome.

    And the burden of proof is on the R’s.

  24. 24

    TJB spews:

    jcricket – Unlike you, I don’t think any of the counties(GOP or DEMO) should have counted ballots in this fashion.

    If you can’t follow directions and completely fill in the oval when you vote then it should be tossed out. It shouldn’t be up to a partisan canvassing board to determine my vote or your for that matter.

    As a result of people not being able to follow instructions you end up with the mess we are in right now. People from both sides pointing fingers at each crying foul. I’ll concede most of the finger pointing is coming from the GOP, but plenty was coming from the Democrats early before CG took the vote lead.

    In my opinion, it’s much easier and removes any question of voter intent if you throw out ballots that weren’t properly filled out, inlcuding mine if that were to be the case. It’s a lot easier to explain to the voters of this state why their vote wasn’t counted in a case like this than it is to tell those who voted correctly in close election that a partisan canvassing board (it doesn’t matter which county) observing the count played a big role in determining the outcome of the election.

    Why print voter rules on the ballots if you don’t need to follow them in order to get your vote counted?

  25. 25

    bby spews:

    TJB – If he mark on the ballot was faint, holding it up to see better would be a good technique. And, just pernaps, honey, the lighing was better at that level.

    You are seeing what you want with your shrouded thinking process. Seeing evil where there is none.

    Get in the light honey. Ther was a Senior Deputy Prosecuter sitting there, working, one by one, voting as part of each and every decision – known for a tough kick butt style in court aginst murderers.

    NOW, are you accusing him, a stuach Republicn from the office of an even better known Republican Norm Maeling – WERE YOU saying he sat there during all this fraud and strange behavior? Willing participant- OR just too stupid, out foxed by the wiley Dems?

    Also the Blond Lady standing right behind the counting board all the time, was Dian Tebelius, yes, dear, Dear Dian. Republican Candidate for Congress this year, skilled attorney….and Dear Dian just stood there observing fraud and tricks and said NOTHING….I even saw her laugh at some little joke, my how strange, standing in the pit of voter tricks and fraud. LAUGHING, silly boobie, Dian.

    Get in the light, dear. Thinking a bit will help turn it on. No fraud, hard work, well done by the counters.

  26. 26

    Goldy spews:

    You’re wasting your time arguing divination of votes. That will not be part of any contested election. (Or if it is, man will the R’s have a laughable case.)

    A contest will focus on votes improperly disallowed, and fraudulent votes that shouldn’t have been counted.

  27. 27

    bj-too spews:

    Hey folks:

    Anyone know where I can find a list of all the people
    whose votes weren’t counted? Is there such a list?

    I’ve found, at the seattle times site a list of
    uncounted ballots or King, and at “The Olympian” a
    list of Thurston counties uncounted votes (nicely
    indexed by the reason). Do such things exist for the
    other counties?


  28. 28

    TJB spews:

    bby – Where did I say fraud was involved? Read my post again. All I said was that people should have to follow instructions in order to vote. I guess you have a problem with that?

    Apparently you must have been one of the voters who didn’t know how to fill out your ballot properly. Good news for you. It got counted anyway…congrats!

  29. 29

    jcricket spews:

    Actually, TJB, the law has a problem with that. Nearly every state in this country has provisions ensuring that votes are counted if the intent is clear. The “fill out your ballot properly” charge won’t get you anywhere (Republican or Democrat).

  30. 30

    Richard Pope spews:

    Goldy, you can never prove who a dead person “voted” for. Since the alleged voter is dead, you can’t take his or her deposition or call them to testify in court. Nor can you know who voted on behalf of the dead person, since they signed the dead person’s name, and not their own.

    If there are 132 polling place ballots counted, but only 130 people signed the polling place registered, you can never prove whose name was written on the two added ballots that were “stuffed”, to use the old term.

    Likewise, if absentee ballots were accepted from 253 people, who signed envelopes that were canvassed, opened, and added to the ballot pile, but only 251 ballots were counted, you can never prove who was voted for on the two myseteriously disappearing ballots.

    If a convicted felon without voting rights restored votes, or a non-US citizen votes, or somehow who is registered twice votes twice, it would be possible to serve them with a subpoena and make them testify. Or maybe not, if you can’t find them. True enough, since their vote was not valid, it would not be secret, and they could be forced (unlike you or me) to testify about who they voted for. But the law recognizes there would be little incentive for them to tell the truth. If a non-citizen prefers Rossi, and is called to testify, it is likely they would say they voted for Gregoire, since taking one vote away from Gregoire would help Rossi, who they actually voted for. And vice versa.

    So all that is required is to prove 130 errors or wrongful acts regarding voting or ballots, and they have to nullify the election, and have a new election.

    Of course, if it could be proven with reasonable certainly that at least 131 more fraudulent votes were cast for Gregoire (as opposed for someone) than could have possibly been cast for Rossi, in that unlikely event, not only would Gregoire’s victory be nullified, but Rossi would be declared elected, without holding a new election.

    For example, if only 200 illegal votes were cast, and it could be proven that 180 of them were cast for Gregoire, and the other 20 could not be ascertained as to candidate, then that would be at least 160 net illegal votes for Gregoire, and Rossi would be declared the winner.

    However, if 500 illegal voters were cast, and only 250 could be proven to be cast for Gregoire, then the election result would be nullified — since it is always possible the other 250 illegal votes were cast for Rossi — and a new election would have to be held.

    As I said before, it is highly unlikely that it can be proven for whom any of the illegal votes were cast.

    Otherwise, elections could easily be stolen, and there would be no effective remedy. For example, Rob McKenna beat Deborah Senn for Attorney General by nearly 260,000 votes. Hypothetically, this election could be stolen by adding 300,000 new ballots in King County, all of them marked for Deborah Senn. It would be awfully suspicious than 1.2 million people voted in King County, when only 1.08 million were registered, and only about 899,000 (or so) of them actually signed polling registers and ballot envelopes. The 300,000 obviously added votes would be more than seven times Senn’s apparent victory margin of just under 40,000 votes. But, under your theory, unless it could be proven with certainty that the 300,000 added ballots were cast for Deborah Senn, the stolen election would have to stand.

    In reality (?), Senn beat McKenna by 421,843 to 383,397 in King County. If 300,000 ballots were added, then she would have beaten him by 721,843 to 383,397, and won statewide. But since the fake vote total of 721,843 was still less than the 899,000 or so people in King County whose ballots were accepted, it could not be proven with certainty that a single one of the 300,000 extra ballots were cast for Senn.

    I disagree that such errors could result in reversing every close election. Most elections are not nearly this close. Some people say that Slade Gorton could have challenged Maria Cantwell’s 2200 vote victory on these grounds. But probably, there were several hundred errors statewide in 2000, but not anything close to 2200. There have been a couple of U.S. Senate and House races lost by Republicans — Woody Jenkins in 1996 in Louisiana and Bob Dornan in California in 1998, where the GOP was able to prove a lot of illegal voters. But they weren’t enough to overcome the margins of victory by the Democrats.

    And sometimes there are practical reasons for not contesting. Gorton in 2000 was a bit over 70, and may not have minded being retired. Also, Cantwell had the momentum, and might have easily defeated him in a rematch. Had Rossi come out on top, Gregoire might have chosen not to contest, given that opinion polls a month after the election were showing that Rossi would beat her by at least 10 points in a rematch.

  31. 31

    bby spews:

    TJB – your classist and silly remarks tell us all we need to know about your shriveled Republican soul……really, I am a Poli Sci student for life. Fill out my ballot, honey, like a textbook.

    Every law in he USA says we should encourage voting and I guess that means VOTERS. The old shakey ones, the ones who fill in circles lightly because, well they are just light writers. And the ones with kids who dribbled food on the absentees- And those voters who circle the name because they think, how so stupid of them, that is a better way to declare their intent.

    Get gong on a poll tax, big one. Charge 500.00 to vote for president. Will keep the riff raff out of your world— but, suprise, a lot of us Dems have many $$$. How can you win? Too messy to bother……hope you never get M.S or bad neuropathy…..bad shakes, makes voting messy

  32. 32

    DP spews:

    I for one am not at all comfortable with someone else discerning my vote if I don’t fill out my ballot correctly. What if they discern WRONG – aren’t I then disenfranchised? I don’t want anyone to white-out or pen on my ballot. I can’t be the only voter who fells this way.

  33. 34

    bby spews:

    DP – that is the law. That is the role of the county canvassing board, use their condiderable powers of observation, smarts and work to enfranchise voters.. The Dems did not invent the slogan about counting every vote. It is enshrined in the current election law of Washinton and most other states.

  34. 35

    jcricket spews:

    DP – The unfortunate reality is that short of everyone having a computer print out their ballot (which I actually think is a good idea), you can’t guarantee perfectly filled out ballots. Another scenario to consider is that your ballot is perfectly filled out, but the paper gets a little shredded, and it can’t be read through the machine. In both cases you need to “discern” the intent by hand. There’s nothing dirty, secretive or inherently error-prone about discerning voter intent. There are well written laws to help election workers ensure voters aren’t disenfranchised for procedural, technical or machine snafus.

    Two election workers separately check each ballot, observed by partisans from each party, and anything that’s disputed goes to a multi-member canvassing board. As Dan Satterberg (Republican member of the King County canvassing board) pointed out, less than 1600 votes even went to the canvassing board, and less than 20 of those 1600 were decided less than unanimously. The evidence shows that they (election workers) don’t get it wrong in the hand recount.

    However, I will grant you that it’s possible they got a ballot or two wrong, because no vote counting system is perfect. It’s possible that one voter meant to vote for Ruth Bennet, but marked two ovals, so her vote is rejected as an over-vote. Her intent was clear to her, but it’s not possible to discern it given the ballot. There are systems that help prevent over and under-votes, but nothing is perfect. As we’ve seen in even the two machine counts, it’s possible that even machines can disenfranchise people if it’s fed incorrectly or it can mangle ballots.

    I’ll expand that – there isn’t a system in the world that’s perfect, machine or human, voting, banking, medical or otherwise. Nothing is bug-free and perfectly fraud-proof. The best you can do is engineer for a high level of quality and fraud-proofing, and then provide “safety valves” in the form of “audit points” to double-check things are going ok. A hand-recount is a safety valve for the problems with vote counting machines. An ATM receipt or external audit is the same for your bank.

  35. 36

    DP spews:

    What a great idea. We’ve had ATM machines everywhere for years. Could we somehow convert them for voting purposes – seems like a relatively cheap way to get a receipted ballot. By the same token, I wouldn’t want a bank employee whiting out or penning my intent on a banking transaction.

  36. 37

    jcricket spews:

    Bank employees do the same all the time. They see a duplicate transactio n for $1,000 and can sometimes identify that the second one was invalid, even if you didn’t make it. So they “white it out”, crediting the money back to your account.

    The difference between that and the current voting systems, is that you can tell it’s been done and that your transactions weren’t just recorded, but recorded appropriately. Current electronic vote counting systems (even optical scanners) could be hacked or programmes so that they record things differently than the voter intended, even without humans holding the ballot “up to the light”.

    So just as the humans in the bank exist as “checks and balances” for the programmed computers, the humans in the election hand-recount serve the same purpose.

  37. 38

    jcricket spews:

    (“even if you didn’t make it” should read “even without contacting you” – not sure what I was trying to write there)

  38. 39

    Richard Pope spews:

    Comment by jcricket— 12/27/04 @ 1:03 pm

    Unfortunately, they didn’t have those safeguards in place for the original count or machine recount. Instead, they simply had teams of election workers — some permanent, some temporary, and all of them members of the Teamsters Union (which endorsed Gregoire and Kerry) processing ballots the first two times.

    The most outrageous practice is ballot enhancement, where a ballot with light marks, stray marks (or possibly no marks) is altered, by either whiting out existing marks or adding new marks, so the it can be read by the machine. While the WAC says ballot enhancement shall not permanently obscure the original markings, obviously that can never be the case. An enhanced ballot is permanently altered, and you can no longer tell what the original markings were.

    Almost every other state simply uses ballot duplication. The original ballot, with its light marks, stray marks, or unusual markings (Gregoire circled, R underlined, Bennett written in, etc.) is not changed at all, but assigned a unique serial number, and stored separately from the other ballots. A duplicate ballot is prepared with the same serial number, and placed in another separate pile, to be fed into the machine recount. If a manual recount is required, then the original ballots are taken out of storage and manually counted, instead of the duplicated ballots.

    I would have a lot more confidence in the King County (and other county’s processes) if ballot enhancement were completely eliminated, and only ballot duplication were used. Also, all counting teams, from the very beginning, should be composed of representatives of each major party. Any decisions as to which ballots to duplicate, and how to duplicate them, should be unanimous, and initialled by each party representative. If there is a dispute, it is referred to the county canvassing board.

  39. 40

    jcricket spews:

    Richard – Your proposal doesn’t sound unreasonable. I just want to point out that those same standards were in place across the state before this election (i.e. the rules didn’t change). And those are the standards that were used, without comment, by other counties during the initial count and machine recount (which in Republican minds are argued as somehow definitive tallies).

  40. 41

    bby spews:


    The party filed a public records request Monday in Seattle. It seeks a list of all voters in the county plus e-mail, policies and documents about how ballots were handled.

    Republican also submitted statements from three G.O.P. observers who say they witnesses irregularities in vote tabulation.

    State Republican Party Chairman Chris Vance says hundreds of ballots were permanently altered in a way that makes it impossible to go back and see voter intent. In some cases workers filled in circles completely and in other cases marks were whited-out.

    The hand recount in King County tipped the race to Democrat Christine Gregoire who defeated Republican Dino Rossi by 130 votes. He won the first count by 261 votes and the machine recount by 42.

    Republicans have until Jan. 20 to contest the election.

    WOW, stunning proof of massive interntional Gregoire induced fraud……they are still fishing, how many weeks later…..seem to me shallow, weak and -how very desperate

  41. 42

    jcricket spews:

    From the PI article:

    “We want to know who voted in the election, and it’s hard to know where we go from here (with a possible court challenge) before we get some answers,” Vance said in an interview.

    We’re mostly posing questions. King County is where we saw the votes changing. King County is the one county that was allowed to take ballots that were declared dead in November and bring them back to life in December.”

    He stopped short of committing to a court challenge of the election results.

    (emphasis mine)

    Hard to know where we go from here?… We’re mostly posing questions? — Sounds to me is that Vance was forced to back off his previous allegations of fraud and/or his commitment to contest the election when it became clear his accusations wouldn’t meet the burden of proof. Looks like he didn’t have any evidence to support any of his previous charges after all.

    Now Republicans have to go on a giant fishing expedition to figure out if fraud has even happened. I see Vance’s case and Rossi’s chances of pulling this out are rapidly shrinking.


  42. 43

    jcricket spews:

    Oh, and “declared dead” – nice new phrase Vance is trying to introduce. When “rejected” didn’t work, he has to invent something new to try and disguise the fact that the Supreme’s clearly ruled KC acted well within its discretion to finish canvassing votes where a final determination was never made.

  43. 44

    bby spews:

    Just for curious value — KIRO TV site has posted names of all the 533 voters counted in King under the approval of the Supremes, scanned list for friends, those Damn Johnson clan folk are unlucky voters…..Send the list to Chris Vance to start his 3 year project

  44. 45

    Richard Pope spews:

    Comment by jcricket— 12/27/04 @ 2:07 pm

    Actually, counties following different procedures, since the WAC regulations allow different options. Under the WAC, poorly filled out ballots can be either duplicated or enhanced. Some counties duplicated, and other counties enhanced. The decision to duplicate or enhance can be made by either the canvassing board itself, or delegated to a two person team who is looking at the ballots. In some counties, all enhancements or duplications were referred to the canvassing board. In King County, such reference was made only if the two person team did not agree. In some counties, the auditor hired a Dem and GOP team for counting, while in others (like King) the two person team was chosen from the regular county employee pool (including the temporary election worker pool). So, unfortunately, it was not the same standard.

    Believe it or not, Sam Reed has never adopted any WAC regulations regarding recounts. Nor are there any WAC regulations concerning the standards for interpreting voter intent (except for two or more corners on a chad must be counted), and every other situation is left up to the county.

    Most county auditors, on the manual recount, including King County, used two person teams, with one person approved by the D’s and the other approved by the R’s. This was good, and improved fairness, public confidence, and openness — at least at this final stage. But there were no WAC regulations or RCW’s mandating the practice.

  45. 46

    Jim King spews:

    Goldy- Elsewhere in the Matrices, there seems to be a lot of energy being spent arguing over improper voter registration. Now, I may be dense, but reading RCW 29A.68.020(5)(b) I note- “Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.”

    Now, just what is said in RCW 29A.08.810 and 820? They read:

    RCW 29A.08.810
    “Registration of a person as a voter is presumptive evidence of his or her right to vote at any primary or election, general or special. A person’s right to vote may be challenged at the polls only by a precinct judge or inspector. A challenge may be made only upon the belief or knowledge of the challenging officer that the voter is unqualified. The challenge must be supported by evidence or testimony given to the county canvassing board under RCW 29A.08.820 and may not be based on unsupported allegations or allegations by anonymous third parties. The identity of the challenger, and any third person involved in the challenge, shall be public record and shall be announced at the time the challenge is made.

    Challenges initiated by a registered voter must be filed not later than the day before any primary or election, general or special, at the office of the appropriate county auditor. A challenged voter may properly transfer or reregister until three days before the primary or election, general or special, by applying personally to the county auditor. Challenges may also be initiated by the office of the county prosecuting attorney and must be filed in the same manner as challenges initiated by a registered voter.”

    RCW 29A.08.820
    “When the right of a person has been challenged under RCW 29A.08.810 or 29A.08.830(2), the challenged person shall be permitted to vote a ballot which shall be placed in a sealed envelope separate from other voted ballots. In precincts where voting machines are used, any person whose right to vote is challenged under RCW 29A.08.810 or 29A.08.830(2) shall be furnished a paper ballot, which shall be placed in a sealed envelope after being marked. Included with the challenged ballot shall be (1) an affidavit filed under RCW 29A.08.830 challenging the person’s right to vote or (2) an affidavit signed by the precinct election officer and any third party involved in the officer’s challenge and stating the reasons the voter is being challenged. The sealed ballots of challenged voters shall be transmitted at the close of the election to the canvassing board or other authority charged by law with canvassing the returns of the particular primary or election. The county auditor shall notify the challenger and the challenged voter, by certified mail, of the time and place at which the county canvassing board will meet to rule on challenged ballots. If the challenge is made by a precinct election officer under RCW 29A.08.810, the officer must appear in person before the board unless he or she has received written authorization from the canvassing board to submit an affidavit supporting the challenge. If the challenging officer has based his or her challenge upon evidence provided by a third party, that third party must appear with the challenging officer before the canvassing board, unless he or she has received written authorization from the canvassing board to submit an affidavit supporting the challenge. If the challenge is filed under RCW 29A.08.830, the challenger must either appear in person before the board or submit an affidavit supporting the challenge. The challenging party must prove to the canvassing board by clear and convincing evidence that the challenged voter’s registration is improper. If the challenging party fails to meet this burden, the challenged ballot shall be accepted as valid and counted. The canvassing board shall give the challenged voter the opportunity to present testimony, either in person or by affidavit, and evidence to the canvassing board before making their determination. All challenged ballots must be determined no later than the time of canvassing for the particular primary or election. The decision of the canvassing board or other authority charged by law with canvassing the returns shall be final. Challenges of absentee ballots shall be determined according to RCW 29A.40.140.”

    Now, it seems to me that all of the above, boiled down, says that if you didn’t challenge an improperly registered vote prior to that vote being cast at the polls, that vote CANNOT be considered an illegal vote.

    So, the Snark is barking down the wrong trail, after having been asleep at the switch.

  46. 47

    Richard Pope spews:

    Comment by Jim King— 12/27/04 @ 2:45 pm

    You have to read statutes as a whole, and also look at definitions. To be an “improperly registered voter”, you have to be qualified as a voter in the first place. Look at RCW 29A.04.145, which defines registered voter by reference to elector. Then look at RCW 29A.04.061, which defines elector by reference to being qualified under Article VI of the state constitution — 18 years old, U.S. citizen, resident of Washington, not disqualified by felony conviction or adjudication of mental incompetency.

    An “improperly registered voter” would therefore be someone who would otherwise be entitled to vote in Washington, but was not properly registered. For example, if the person had never signed their voter registration. Or if they were registered in the wrong precinct. Presumably, the hundreds of people in King County that use mailbox services and storage facilities as their residence for voting are not properly registered, since the law requires you to register at your residence, and they obviously don’t live there. But they would otherwise be qualified electors, if 18, U.S. citizen, state resident, etc.

    Even if my reading of “improperly registered voter” is not correct, any ballots supposedly cast by a dead person would have to be the basis for an election contest. The dead person would be “improperly registered”, of course, since they should have been removed from the rolls when they died. But the ballot actually cast would not be cast by the dead person, who is dead and obviously can’t vote. If the dead person was somehow resurrected, and came back to life, then they would be qualified to vote (and required to re-register, if their name had been removed when they originally died). So even though the resurrected dead person was techinically “improperly registered”, they would still be a qualified elector, and in such an unlikely event, their actual vote would not be the basis for an election contest.

    If there are more ballots in a precinct than people who voted, these are obviously illegal votes, since they were not cast by a registered voter (of any sort) who signed up to vote, but simply got added. Likewise, if there are fewer ballots than people who voted, this missing ballot would not be an illegal vote, but this sort of error would also be a basis for challenge.

  47. 48

    Jim King spews:

    Richard- The major point is that some of the problems (I would say MOST of the problems) being brayed about by the Snark should have been challenged no later than Election Day. A dead person votes, and we only find out about it now? Why wasn’t the imitator of dead person challenged at the polls… Oh, the GOP wasn’t set up to watch for fraud, despite everything that was known about the problems in King County Elections?

    Checking actual returns against precinct lists should have been being done sometime ago, but I would not argue against it now- it is one valid strategy, as is examining the actual impacts of the problems with the overseas military vote. But braying about registration fraud is both untimely, and a loser…

  48. 49

    Jim King spews:

    And Richard- as for residence- you should know how nebulous a concept our courts have made that concept. We have more than one legislator who physically reside outside of their districts, and have for years, but unless you are dumb enough to openly move to Kona, no one can touch you. If they can get away with such things, how are you gonna touch the snowbird using a mail drop address (and most storage places WILL accept mail, if arrangements have been made).

    Or did anyone stop and think of the snowbirds…

  49. 50

    Richard Pope spews:

    Comment by Jim King— 12/27/04 @ 3:15 pm

    Q: “Why wasn’t the imitator of dead person challenged at the polls…”

    A. Well, in Washington, there is no requirement that a purported voter prove their identity when showing up at the polls. Nor is their any right or ability for anyone to challenge that person’s identity at the polls. We need to change our law, so just like in Florida and Ohio, people have to prove their identity, and parties can also have challengers to challenge it at the polls. However, a vote by an imitator of a dead person is still an illegal vote …

    Q. Checking actual returns against precinct lists should have been being done sometime ago …

    A. Yes, King County should have done this before certifying the count for the first time on November 17. All counties should be required to do this. As far as getting copies of the precinct lists, the BIAW put in a public records request on 12/03/2004, and still hasn’t gotten them. King County claims they are still “compiling them”. Interesting, isn’t it?

    I will grant you the point on residence addresses. Unless it turns out that someone is not only registered at two different addresses (in this state or elsewhere), but also voting twice as well. In which case, I will be indignant.

  50. 51

    bby spews:

    STUPID R’S —Many, many “storage units” are little business operations – every type and array, starting years ago. Of course they get mail there. We have a mobile and moving population.

    This address might be the permanent address of people who work on the road, construction crew, sales.

    Singles often move every other month. WHY, no clue. Have such a friend, he uses POBox he has had for 20 years. In the mean, he has lived at least 20 places including a few months with me, and some time in his van. He makes 40.00/ hr. as a finish remodeling carpender. Nomad at heart.- spends a lot of money traveling in the winter. Bogus voter, OF COURSE NOT. Air Force Acadamy Graduate.!!! To boot. Citizen activist extrordinare.

    .As the French woudl say to Vance et al –Tres Grande Fucking Deal – get a life and Concede. Period.

  51. 52

    bby spews:

    Richard – you seem half way intelligent. Why with a good brain are you a player in the drama of the conspiracy? Too much soap opera in youth, or Bible belt college?

    Good god man. King County just finished counting votes on last Wed. – some Christmans time, they sure deserve a break, and here we are. Why do you not think it takes some time?

    And, by the way – smoke on this. If there is voter fraud it is most likely from Rossi et al. His folks should have seen the close election coming better than Gregoire who was so far ahead in the polls just weeks out. She was blind sided, don’t we all agree..

    WHO,Oh WHO, might has said, gee whiz…. looking very tight…. The bitch is fading, might be close, lets stuff 400 in the rube counties….need a little margin….just WHO?

    That is the theory of a friend with a high genius IQ. Yet, not a single person has ever even insinuated this possibility.

    Richard, it is over, many mistakes all over the state, three counts, last one pickey as hell for sure… system worked with a limp, but worked.

    Your horse is out of the race. Get over it. Concede.

  52. 53

    HowCanYouBeProudtobeAnASS spews:

    Poor bby – I guess Governor-Elect Rossi missed your memo mantra that he was supposed to concede today.

  53. 54

    Jim King spews:

    Richard- our law DOES provide for challenging ANY voter at the polls, even if it does not require that a voter prove identity. If a voter is challenged, they vote a provisional ballot…