At press time the court is in a lunch recess, so it's a good opportunity to review the opening statements made by most of the principals. Also Also, let me note up top some of the other outlets trying to cover the trial as it happens: David Postman is doing periodic dispatches here, about once every half hour. Daily Kos diarist (and NPI staffer) "archerhouse" is setting up live blog diaries with comments; the morning session is blogged here, with a new one for the afternoon forthcoming. For anyone who wants to follow the trial the video and audio feeds are available here, but be warned that the feed is not exactly robust. Perhaps it's just my corner of the Internets that is having trouble, but the video feed looks more like a slide show, and the audio feed craps out regularly.
The start of the trial naturally began with opening statements. The GOP's Dale Foreman went first, and launched into a fusillade of complaints, some of which were new arguments before the court. The first point made was to quote Dean Logan and a "Democratic expert" in admitting their inability to declare an accurate count within 129 votes. He goes on to cite Secy of State Sam Reed as saying essentially the same thing, that the outcome is not 100% known. Foreman's implication is clear here, but he doesn't really state his point, that absent 100% surety, you must throw out the entire election.
He doesn't spend too much time on that claim, before moving on to brandish the sharp charge of explicit fraud. "The facts are sinister," he said, and reflect a "case of election fraud by upper management." What's interesting is what he uses to substantiate the claim, at least in his opening statement. Foreman raises the specter of 875 more absentee ballots than voters, apparently deciding that a discrepancy means fraud has occured. He then moves on to the hot topic for SoundPoliticians, the deposition from an elections worker who admits creating a ballot verification form without the benefit of all the necessary information to complete it. Foreman says it was done "knowing it was a fraud--knowing it was a lie," but offers no evidence yet that the intent was fraudulent rather than omissive due to lack of data. Foreman further alleges that KC official Bill Huennekens knew of the fraud, and drops his Stefan-like bomb: "This elections was stolen by the voters of this state, through a bizarre combination of bumbling elections officials and intentional misconduct." That's a near-verbatim quote BTW, although in between "bumbling" and "intentional" I lost the feed.
Having laid out the charge of fraud, Foreman then asserts that fraud isn't even necessary to win their case, relying on Foulkes v Hays to buttress his point. Foreman cites the established neglect involved in leaving ballot bags unsecured, then attempts to tie that to problems in this election...such as provisional ballots inserted before validation. He cites a sampling of problems with provisionals at several precincts--a couple here, a couple there--as a way of announcing 1,155 total "illegal provisionals" for King. He notes that pollworker Linda Sanchez originally tried to reconcile provisionals and came up with the 1,155 figure Foreman cites, but then he notes that pollworker Collen Kwan did a subsequent attempt and got King's publicized figure of 785. Foreman says King still can't reconcile that difference; it's unclear what that means, given King's profferring of 785 as their total, rather than an admission of irreconcilability.
Time and Judge Bridges will tell if the ballot insecurity comparison holds up, but I doubt it. Bridges made a point at the last hearing to note that using Foulkes to make Rossi's case easier viz illegal ballots won't work, because of the verified neglect in that election--and that to date, Rossi hadn't alleged any fraud. Now to come anew with fraud charges and cite Foulkes...wow.
Foreman goes on to detail other different types of ballots they consider illegal--dead people (using the great example cadaver name 'Jazzy Blue,') and multi-time voters. He concludes by claiming from one of their own witnesses, that "evidence does not show random error, but partisan bias." How does Foreman intend to show partisan bias? Apparently by whining about how hard it is to prove. He says, "We're not able to bring before the court the people who stuffed the ballot boxes, but we don't have to," and "we believe the circumstantial evidence will be stronger than any direct evidence." An example? According to Foreman, the top two Gregoire precincts both had more ballots than voters (I assume based on voter credits), while two of the top three Rossi precincts had ballots "disappear,"--assumedly in reference to voter totals exceeding ballot counts.
Why does Foreman think it's OK just to present that information and substantially allege fraud? According to him, it's just too hard to prove because the evildoers are too crafty: "it's hard to prove, because they don't want to be caught." I'll remember that line of argument for the next murder trial--"we can't prove he killed her, because he did such a good job of it." He uses a similar argument for identifying the chosen candidate on felon votes, saying "if we had to prove it, it would be impossible, so the bar can't be that high." He also remarks on "a lot of effort" it required to assemble their info on felons, as if that were grounds for setting aside the requirement. Finally on felons, Foreman attempts to use the notification by prosecutors and King County to individual felons, that their rights were either being challenged or summarily cancelled. His phrase is "no better proof" exists than those notices. Speaking editorially, the idea that a) prosecutors only charge those who are definitely guilty, and b) King is a county that can't handle an election properly, but can be counted on not to make any mistakes in their registration cancellation process, is a pretty specious/oxymoronic one.
Foreman then presents a wonderfully circular argument on as-yet unopened ballots from King and Pierce counties. He doesn't say they should be opened, but opines that if King were doing their job, those ballots would have been counted. This is the "election mess due to errors above zero" argument--that any error discovered automatically suggests that the election itself cannot be trusted. This argument has about 0% chance of succeeding on merit.
Foreman turned the floor over to the Democrats, represented at this time by (first name needed) Hamilton. His statements amount to, in short, "where's the beef?" Hamilton notes that felon voting occurred statewide, not just in King. Even under the "ecological inference" model, it's the Democrats' claim that Gregoire still prevails--and according to Hamilton, it's that truth that causes Rossi to NOW begin alleging fraud as a cause of contest.
Hamilton expands upon the rationales for rejecting the claims made by Foreman:
--Rossi cannot, even acknowledging official errors, tie violations to illegal votes.
--the standards for setting aside the election are daunting not by happenstance, but to reflect the championing of stability and finality.
--election errors are recognized as a fact of life. Thus, this is not a case over imperfections, nor does it assume that errors or irregularities all benefitted the winner.
--the claims of fraud are serious, and demand serious proof.
--no evidence is entered for intentional falsification of mail ballots
--precinct disparaties (presumably regarding provisional ballots) do not represent de facto "ballot stuffing." No depositions or interviews of pollworkers or observers on this point will be presented at trial.
--regarding ballots counted exceeding voters credited, Hamilton notes that Rossi COULD prove his claims, by going to the physical ballot envelopes and counting them--but that was not done.
--Rossi will not be attributing any illegal votes to either candidate, directly
--no direct evidence will be provided that illegal votes were cast specifically for governor
--no count of ballots vs envelopes, as regards absentees.
Hamilton goes into some detail on the different types of illegal votes, and lectures the court on the standards, and how Rossi's team fails to meet them. Interestingly, he makes the case that it is incumbent upon the petitioner to present ALL known illegal votes, not just those that help the petitioning candidate. I'm curious as to how that claim will be met by Bridges; if he agrees, the reality that Democrats have found hundreds of felons not on Rossi's list will necessarily suggest that Rossi manipulated his count of felon voters.
Specifically regarding felons, Hamilton notes that the petitioner must follow the six standards for acceptance. He alleges that Foreman admits he can't show direct evidence of the candidate selected, and avers those votes should be dismissed from consideration on this point alone. He then moves on to attack proportional reduction, by claiming that the method proposed is outdated according to the scientific community, and uses a principle--"ecological inference"--that is deemed inappropriate to answer the question at hand. And of course, Hamilton notes that their analysis will show Gregoire won anyway. He also brings up an example felon from a Gregoire precinct, suggesting that Rossi's team assumes him to be a Gregoire voter. However, in the example, Hamilton provides documentation of GOP party membership and campaign contributions to Rossi. It's an interesting example, but of course as anecdotal evidence it only serves to perhaps call Rossi's assumptions into question.
[more coming as I get it typed up...finishing Hamilton's comments and touching on the statement from the Secretary of State's office...]
[Hamilton opening statement, cont'd]
Hamilton finishes up his rebuttal regarding illegal votes by asking Rossi to "prove it" with respect to provisional voters theoretically voting by absentee as well, receiving credit for both. He further notes that pollsite crediting is not enough as proof; pollbook info must be shown, and in his mind Rossi's team will show none. Similarly, the allegation of fraud resulting from a discrepancy between absentees and voters, apparently based on voter crediting, is also insufficient: "It proves nothing of the sort. It is an automated process prone to error," and rejects a host of different types of ballots, such as military, witness protections, etc. Further, he notes that KC will be shown to have erroneously removed voter credits, while trying to work the bugs out of their new computer systems. And of course, once again the identities of those ballots are unknown and no information on details of those votes will be supplied by Rossi--so they cannot be considered as part of the body of illegal votes.
Hamilton then turns to allegations of official error, starting out by declaring that Rossi is limited to the contest claims made in the original petition, and that fraud does not appear--"yet some arguments were made this morning, appearing nowhere" in that petition. Hamilton cites two examples given by the Rossi team for official error: first, the existence of votes cast on behalf of dead people; second, the discrepancy in voter crediting. As to the first, he declares that no evidence exists that county officials had knowledge of the death of a registered voter, and so can't be held responsible for not striking that registration before the election. Even so, Hamilton alleges no evidence will be provided to indicate the candidate preference, and that proportional reduction is useless in this case. As to voter crediting, Hamilton notes that the court decision dismissing voter credits as part of the counting function of the election makes moot the idea that voter credit discrepancies have an impact on official error.
Hamilton finishes by laying out the counter case for Democrats:
-illegal votes amounting to more than 700+ felons
--1,800 provisional ballots in 14 counties, where policy was not followed (signatures were not checked against registration cards).
--ballots exist that should be newly considered. One example regards the "Phillips ballots," erroneously rejected for having no signature on file. Hamilton alleges that using driver's license signatures as a comparison, 47 of those matched and should be counted. In another example, he cites provisionals that were erroneously excluded, but which now can be validated and should be accepted.
Next to the podium was Jeffrey Even, speaking for Secretary of State Sam Reed. His points, in brief (since his own statement was brief):
- the SoS adduces no fraud or partisan misconduct
- a successful contest should provide an actual vote total with the ruling. The reason given for this is that initiatives and referendums require a total vote for governor, in order to set the standard for signatures required to place them on the ballot.
- contrary to Mr. Foreman's claims, the SoS did not charge King County to "clean up the process," only that they should follow laws and procedures in conducting the election.
- until proven otherwise, the last count is the true count, and evidence suggesting otherwise must be clear and convincing.
While Reed's office will take no official position on the contest, you can see from Even's comments that their beliefs fairly closely track those of Gregoire's attorneys, at least as concerns the detail of irregularities, the presumption of normality and legality, and the standard of proof for Rossi to prevail.
The last speaker was attorney Calico, representing the Klickitat County Auditor's office. The two relevant points made in this very brief statement before lunch: as far as they're concerned, auditors across the state did "the best they could," and the RCW requires that official error or negligence must be "such as to PROCURE" a different result--the obvious inference being that no evidence of procurement is forthcoming.
At this point Bridges ruled for a lunch break, and agreed to consider attorney Durkan's motion regarding the standard for accepting illegal votes, and especially the 'new' charges of fraud raised during the morning session.
As I've mentioned, AP has been nearly useless in adding anything to the body of knowledge, but they do get in a good typo in this morning's recap:
“The judge decided to move the trial from his small courtroom in eastern Washington appeal country” [emph me]
If it isn’t appeal country now, as soon as Bridges releases his decision it will be!