WA Gov: Day Five--GOP Rests, Dems Forced to Respond

[next in a series covering the Washington State 2004 gubernatorial election contest trial, being conducted in Wenatchee, Chelan County Superior Court , before Judge John Bridges. Previous postings in the series:

Day Four Wrapup
Day Three Wrapup
Day Three Morning Session
Day Two Wrapup
Day Two Morning Session
Day One Wrapup
Day One Morning Session]

The fifth morning began with whatever it is that's opposite to a bang (ponder that one for a while). Almost the entire morning was taken up with argument over a series of exhibits being introduced by Korrell and the Rossi team, covering a variety of issues. Counsel Hamilton predictably objected to all of them, often noting that they were new disclosures well after the cutoff for submitting them. In each case, Bridges' response was roughly the same: I tend to agree with you, but I'll allow the exhibits anyway. Specifically in one case regarding six multi-voting individuals, Bridges noted that Hamilton raised valid objections, but that he would admit the records, partially due to the delay with which King complied with requests for information.

This went on for a good hour and a half, at which point Bridges noted, "Time flies when you're arguing exhibits." Maybe for him. In any case, the court recessed and when they returned, Korrell and the Rossi team rested at 11:35AM. At that time counsel Hamilton moved to dismiss, a motion that almost no one in the courtroom, including Hamilton, expected to see upheld. It served as a likely preview of King and the Democrats' arguments, should they have to make them.  A sampling of his litany for dismissal:

• Rossi claimed inaccuracies in numeric tallies, but shows no evidence to support it
• Missing absentee ballot claims are based on crediting process, which Bridges has already ruled out as a counting tool
• All absentees were verified by signature match
• No testifying by voters occurred, no ballots produced to verify illegal votes.
• Rossi could have found some of them--provisionals, for example, because they are physically creased.
• Rossi's admitted some illegal votes with unknown precincts were randomly assigned within the same polling place, for the purpose of proportional reduction. Obviously, that's a problem.

Hamilton concluded with the assertion, "This dispute has run its course."

Then, in what I consider quite a curious statement, counsel Ahearne stood to represent the Secretary of State against the contest petition--and argued AGAINST dismissal. Now, I understand the legal argument he made--that since everyone knows the case will be appealed, it's best to have a full trial record for them to review--but having knowledge of a good legal argument does not mean it's proper to make it, if it doesn't help your client. As I perceive it, Ahearne's job is to protect the state against suit and liability, and a dismissal is an obvious goal in that light. In short, WTF? I contacted Trova Heffernan, spokesperson for the Secy's office, to get comment. She refused, given the case's status in litigation, and referred me to Ahearne himself. (Neither Ahearne nor his secretary have answered phone messages at press time). I asked one further question of Heffernan--does the Secretary wish to see the election upheld or set aside? Again she refused to comment, on the same basis as before. I explained that while Ahearne could fairly be asked about his actions as an attorney, the opinions of the Secretary should come from him. She refused again, and that was that.

Korrell argued his case again briefly, also foreshadowing his closing statement. As I did with Hamilton, here are most of his points in bullet format:

• Directly asserted fraud in the election
• No accountability for the election
• "No confidence that we've reached the right result"
• Nobody knows who got the most votes
• "Closest goobernatorial election in our nation's history"
• Foulkes v Hays does apply here, contrary to Bridges' earlier statements
• The contest statute doesn't have anything in it about providing names for illegal votes

Hamilton replies briefly that the precedent in Hill v Howell addresses most of Korrell's points, giving as examples that illegal votes are presumed legitimate without identification as to who received the vote, and that Washington law presumes regularity in an election, absent evidence otherwise. Finally, he noted that there's no evidence to suggest that the supposed bias claimed by Rossi in the 11 precincts with the highest mail ballot discrepancies, is the result of non-random error. In fact, Hamilton noted, neither Korrell nor his witness Clark Bensen, are experts in order to say. I might add that if either of the actual expert witnessed testified on the randomness of those results, I missed it. Perhaps Gill did yesterday; if you have info on that, please comment below.

At this stage Bridges was ready to rule on the motion. First however, he ruled on the sufficiency of the so-called 'CFR's' for determining whether the 'felon' voters presented by Rossi were in fact convicted of a felony. In short, he found that if the severity of the charge was noted on the CFR, that would be sufficient; otherwise, not.

"The next item is serious," Bridges noted--Mr. Hamilton wants to dismiss this case right now.  He continued to say that the case most pointedly involves Rossi and Gregoire's desire to be governor, and almost as important is the desire of their constituents to have them BE governor. But almost as important as that, is what the citizens of Washington expect and deserve when a contest is filed. "I cannot imagine the ladies and gentlemen of the Legislature contemplated the situation we find ourselves in here today," he said. Referring to Ahearne's argument for continuing the trial, he found, "The Secretary of State has argued consistently that the court should allow and perhaps demand that there be a full and complete trial record." And moments later: "I agree again," saying while it may be a disservice to Hamilton's clients, in his judgement it would also be a disservice to the petitioners to cut the trial short--"evidence is still at issue." "The facts in this case will remain disputed next week," and only "by that sifting process using the law as it is written," would the case be resolved. And then Bridges quipped, "I was going to say 'fair and balanced,' but I'd better not."

And then the anticlimatic moment: MOTION DENIED.

And it was lunch.

After the break, King will begin their defense, starting with testimony from several other county Auditors. First up will be Mr. Kimsey of Clark County.

--TJ

Comments

[ASwayne]

I'm sure you meant "but shows no evidence to support it."

[Torrid]

did I make a typo? I can't find it in a quick scan; can you be more specific?

[Torrid]

nevermind. :)