Chelan County Transcripts, Part Two

[Part One, below, begins here.]

As court resumed after lunch, the newswires had all been fed with reports and reaction and spin, and most of them have put out "Dems Lose Two"-headed stories.  I would have headed them "Dems Miraculously Spared Imminent or Partisan Legislative Battle," but that's just me.  So while I was not physically there, and the cable feed didn't come back on after lunch until Bridges began ruling again, I'm sure the GOP suits were burping contentedly on their pad thai and yerba mate'.  And then the judge opens this way:

All right. The Court will address this particular motion now and I have found this motion exceedingly difficult. And part of the difficulty, admittedly, is the amount of time that we all have had to deal with this subject. Dealing with the law is one things, but in this case we're also dealing with some allegations that are set out either in the petition, or more specifically, set out in petitioners' affidavits in support of the election petition.  And I would certainly like to have had more time to digest some of that, but I haven't had it and I don't have it. You folks don't have it because you need to move on to the next step here, which I think is the Supreme Court, and so I'm going to make a ruling.

Motion exceedingly difficult? That had to loosen their thai. Did...did the judge just say he found it exceedingly difficult to decide, whether or not to dismiss our case by calling our allegations of illegal votes and misconduct insufficient for trial? The victories of venue and jurisdiction don't sound quite as sweet if you're arguing nonexistent causes in your chosen venue.

I definitely remember the comments Bridges continued to make in reference to the motion on suffciency of causes (ie, whether Rossi had enough dirt to go forward with), but without the first ominous warning, what he was implying didn't click together for me. But I'm sure the GOP counsel were starting to pale a little bit.

Bridges went on to detail the causes raised by Rossi's team: dead voters, felon voters, provisional screwups, large voter-credit shortfalls, absentee fraud, equal protection violations and ineligible out of state voters--and then launched into the arguments made by the Democrats:  first, that to prevail the petitioners must show clear and convincing evidence that the election was invalid. Not so says Bridges, citing Foulkes--and here GOP counsel exhales. "Thank God, he's using Foulkes again."

Foulkes continued to grace the GOP table, as Bridges went on to take apart the Democrats' argument that the Code predecessor to RCW 29A 68.020 was the only section that provided for causes of contest.  Not so, says Bridges again, giving Rossi life via the predecessor to the adjacent 68.011, which has a more oblique "election errors and fraud" reference. Foulkes' validation of what qualifies as a screwup was good enough for the judge, and so now one imagines the smiles and color returning to one side of the room.

Bridges dispenses one more fanny whack on the Democratic counsel, swatting the notion that all challenges to illegal votes had to have occured on or before Nov 2. There is Code representation for some of those ideas, and it's not a bad argument, but there seems to be a strong current of common sense dominant in the judge's rationale.  Notice from the morning session the almost blithe dismissal of the motion to remove the Rossi campaign, since everyone else was in the game anyway. Here too, it seemed absurd to Bridges to require knowledge of wrongdoing to be limited in use, to that which you knew about on or before Election Day. So despite some supportive language, the motion to dismiss on timing again fails. I guess it wasn't such a tough decision after all.

The dismissal ruling barely gets out of his mouth, though.  The sentence isn't even finished before Bridges brings up the standards for prevailment, rather than contest. Until this point, the judge has ruled strictly on whether enough evidence existed to hold a trial. Obviously without that ruling, the Rossi campaign is dead in the water, so they had every reason in the world to be happy about how things had gone so far. But they didn't even get to enjoy the period of the sentence, before the judge shifted rhetorical gears. 

Out come sections 68.100 and 68.110, both of which deal specifically with illegal votes.  Section 100 specifies that all illegal votes must be made into discovery, names of voters attached, three days before trial. But it's 110 that seems to be the entire case in a single, ridiculously tortured sentence: the election can't be set aside unless some number of votes for a candidate exist that can be shown aren't legitimately for that person, to the extent that the person is no longer the winner. (My sentence is a serious shortcut, and even that's incomprehensible).  It now appears clear that Bridges will hold a pre-trial hearing on predominantly this section, and whether the Rossi team has to identify votes for Gregoire, actually and in numbers to overturn the count.

And Bridges will have Hill v Howell at the ready, and counsel know he will because he read it to them.  The 1912 judicial contest review determined that, failing identification of illegal ballots for a candidate, such ballots must be treated as legitimate.  (Hill v Howell's laissez faire tenor extends broadly to the entire election process, in a ruling that may spontaneously raise hair on the scruff of Chris Vance:

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.

Ladies and Gentlemen, the "Shit Happens" Supreme Court ruling. But after scaring the crap out of the GOP by using the phrase "Although it may be problematical for the petitioner to prevail..." he goes back to the Code with 68.090, which deals strictly with the requirements for contest rather than prevailment--and once again denies the motion to dismiss. Dino's still alive, but you can tell that he's living on a knife edge of credibility, made possible by looser contest provisions than prevailment provisions.

At this point I have to wonder if Bridges is toying with people. The next motion concerns the cause of official misconduct. Once again, the judge builds the case for how difficult it is to overturn based on the conduct of officials.  He cites Quigley in much the same way he uses Hill, to show presumption of innocence among officials in the same way as for ballots.  But I'm sure the counsel have figured out Bridges' suspenseful nature, and are not surprised when ultimately the dismissal motion for misconduct is also denied. And at this the GOP must be smiling broadly: they know the case will continue, and they will get to argue illegal votes and scurrilous or ignorant poll workers.

But the roller coaster ride isn't over yet, no no. A litany of Democratic attempts to dismiss are handled rapid fire, and "victory" comes on the first one--denial of equal protection violations. That's an important one to have, because without a federally relevant cause of aggrievement,  there may be an exceedingly difficult time in getting the US Supreme Court to involve itself.  But that's certainly a minor setback, because Rossi plans to win at the trial level. And as the list of denied motions to dismiss builds, he's got to be thinking of that revote already. And that's the last one on the list, the motion to dismiss the revote as a remedy. Surely it's far too premature to address that one, especially since he won't even address the validity of the votes without knowing who they're for. Now the case can be taken to the public to drum up a revote before the trial even begins. Yaaaaay, revote!

Not so fast:

First of all, our Washington State Constitution contains mandatory requirements for the manner in which the governor will be elected and that's Article I, Section 29. That particular section instructs that the provisions of the Constitution are mandatory, unless by express words they are declared to be otherwise. And Article III, Section I of our Constitution provides that the executive department -- that's the governor here -- shall be severally chosen at the same time and place of voting as for members of the legislature. The Constitution requires that the election for governor be on the first Tuesday after the first Monday in November, unless otherwise changed by law.
    And Article III, Section 10 outlines the procedure for succession to governor if the governor is removed and the requirement that the election for a new governor to be at a general election. And RCW 29A 04.321 subsection (1) sets the dates and the times for general elections and provides that the office of governor is specific -- and I note that the office of governor is specifically omitted from the statewide general elections during odd-numbered years.
    The Court concludes that the petitioners' request for -- to order, if they're successful, a statewide special election is not permitted by Washington's election contest statute, 29A 68.050, which happens to be up on the easel, and more particularly, not permitted by the Washington State Constitution.

Some interesting points here: the judge refers to the Constitution more than I remembered, including one significant passage that until now I had not included in any analysis of when the next vote might occur. Article III clearly lays out that the governor is to be elected with the legislature. Bridges also refers to Section 10 of the same article, but passes right over the phrase "next general election" at the bottom of a long list of  succession procedures, noting simply that it calls for the succession to happen pending "a" general election.

And just as smoothly, he refers to the statute on timing of general elections, in Code 04.321.  Primarily, he notes that the governor cannot be elected in odd-numbered years. At least in my interpretation of the transcript, there's no way in Bridges' mind that he can see any kind of election for governor happening in November 2005. 

I have waged an epic rhetorical tussle with reader Micajah on this subject, and he has leaned hard on Article III Section 10, as well as portions of RCW 42.12, that talk about "the next general election."  Because Constitutional language is seen to trump legislative language when the two conflict, it could be read that A3S10 indeed trumps 04.321 for the purposes of special elections. But with the aid of the transcript, there is in fact specific language in the Constitution on the timing of goobernatorial elections, and it is that they are to occur with the legislature's. And given Bridges' notation of the mandatory nature of the Constitution unless expressly worded otherwise, I find the language supplied to be dispostive--November 2006 is the earliest a new governor can be hired in Washington.

So there it is. The upshot? The Democrats lost an awful lot of battles, but came very close to winning the war. As you read the transcript, Bridges is awfully clear about the higher standard for prevailment, and is only slightly subtler when it comes to his opinions about the ability of the Rossi team to meet them. Obviously he's not prejudicing himself before discovery, but I think he's given fair warning to the petitioners that they'd better come correct.

Bridges said the pre-trial motions he envisioned hearing on the burdens of proof will take about three weeks. It's not sure if he meant three weeks from now they'll be done, or he'll set it for three weeks from now, or once he sets it it should take three weeks to hear. But for now, we can bone up on our Quigley and our Hill and our Foulkes and hope for a better video feed next time.

--TJ

Comments

[north clark county]

You may find it suprising, but I have no big argument with your conclusions, especially "...I think he's given fair warning to the petitioners that they'd better come correct."

We've been around and around about 2005 or 2006. I'm not restarting that debate, other than to say that if (BIG IF) Rossi wins the contest, I don't think Bridges will attempt to define that portion of the remedy. I think he'll leave the timing and form of any new election to the SoS and the legislature (although the SCOWS may step up on this issue).

Now some nits with your post. I wonder if Bridges will see the contradictory nature of the Hill v Howell decision, where it speaks of questioning whether there is any value in trying to determine for whom a voter cast his ballot, and then proceeds with that very same questionable activity. There's also the question of whether the fact that Hill v Howell was not an election contest is relevant, although two dissenting justices believed it was (in which case, the SCOWS wouldn't have jurisdiction under the laws then in effect).

About the equal protection dismissal, if someone pursued a federal equal protection claim, wouldn't that be reviewed de novo, even if it was an appeal of a ruling by a state court? What effect would Bridges ruling have then?

Finally, in regard to "It now appears clear that Bridges will hold a pre-trial hearing on predominantly this section...", I don't know if you're referring to the next scheduled hearing or a later unscheduled one. I believe that the next hearing will be on burden of proof, whether it is preponderence of the evidence or clear and convincing evidence. I think it will be the latter, due to the high bar that must be achieved to have a court throw out an election.

As far as any hearing on "...whether the Rossi team has to identify votes for Gregoire, actually and in numbers to overturn the count.", I think I remember that Bridges asked for briefs on that issue, but have we seen any yet? It doesn't seem to be an issue he has addressed or scheduled yet.

[recallreed]

BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION OF IN RE:
THE RECALL OF SAM REED NO. 05-00222-8 MEMORANDUM OPINION

[text deleted; please find a link--ed]