Newsbreak: Chelan Co., WA Judge Rules, DENIES REVOTE

(reference to headline is near the bottom of this post, reflecting chronological entry)

I'm following the election contest hearing going on now, televised live here:

At this point, Judge Bridges has denied two Democratic Party procedural motions: to dismiss based on improper venue (ie,  the contest should be decided by the Legislature instead); and also to move the venue from Chelan County, presumably to the state Supreme Court.

Therefore, at least at the trial court level, the case will be heard by Bridges. Right now, he is hearing the case being made by multiple counties, that the evidence presented by the Rossi people is insufficient by law to trigger the contest. I'll update this as more concrete rulings develop, and Preemptive Carla and I will have more information soon on the variance rates and provisional ballot experience of other counties in Washington.

UPDATE 12:32--
Bridges has issued some more rulings. First, the Rossi campaign is not a proper litigant, but that neither are the Democrats or Libertarians, so he is allowing all of them to continue. Not sure I understand the logic there, but that's the ruling.  Secondly, he has denied the counties' motions to dismiss based on timeliness; that is, that the petitions to contest were not properly filed in time based on certification. The argument used by the counties that petitions had to be filed in a county when the COUNTY certified, was not accepted--the date that the Legislature certified, January 10, is to be considered the date of certification.

Third, ALL counties and their auditors may be dismissed as parties to the case. Those that wish to stay in may, but they must express their intent. Otherwise, the individual counties are off the hook. Finally, in a partial ruling that Bridges said he would discuss further during his ruling on the Democrats' motions to dismiss, the affadavits submitted to the court as evidence for contest are indeed sufficient to continue.

That last one seems like the most important; it would appear to indicate (if I understand his point in delaying a broad discussion until the main motion of dismissal is heard after lunch) that the affadavits culled by the Rossi campaign are enough to go on to prevent dismissal and hear the contest case.  I think that's probably reasonable;  the Washington statutes do seem to say that you only need to exceed the margin of victory in terms of questionable ballots, in order to gain a full hearing. The standard for remedy is much higher, but if I were to predict, I'd say base
ed on this that Bridges intends to hear the full case.

UPDATE 4pm--the feed for the hearing went down for a number of hours, but luckily came back up just as Bridges began ruling. Here is what I got: there are two main causes submitted for dismissal. One regards illegal votes, the other regards misconduct.

• On illegal votes--the Democrats say Rossi must prove the votes were invalid. Bridges ruled it was premature to make that discovery.  On using statute 68 .020 from the RCW as the sole basis for what is contestable, Bridges ruled that while they (Rossi) fail on .020, .11 CAN and does apply. On the issue that challenges must be done on or before the day of the election AND attributable to a particular candidate, Bridges acknowledged that the statutes make prevailing in a contest difficult. However, 68 .090 allows Rossi to claim that the errors gound are enough to open the question of whether the election was legitimate. Thus, the motion to dismiss based on the cause of illegal votes is DENIED.

• On misconduct--Bridges noted that more contests have been rejected than successful, and there are reasons for that: do we want "seasons of discontent" every time a close election finishes? Also, court rulings have found that election officials and returns have a presumption of regularity--in other words, they are assumed to be honest and normal. However, once again to decide on this case at the hearing stage is premature. Bridges cited 68 .050, using the standard of "which, if proven" in that statute, as the key basis. In other words, the question for contest is left open to subsequent proof once the contest is being considered at trial, and dismissing now is premature.

Bridges then gave other reasons provided by the Democrats to dismiss on the misconduct cause, and rules on them individually. On the idea that invalid votes must be attributable to a candidate, or misconduct to election officials, he once again cites the applicability of 68 .11, which sets forth a general standard of wrongful acts, errors or neglectful duties. Bridges specifically affirmed Foulkes here, to stress that Rossi is not limited to causes in 68.020, but can and does avail himself to the general causes for contest in 68 .11.  Similarly as with illegal votes, Bridges also found the claim that dead voters must be challenged no later than the time of casting, unpersuasive. On that basis, this motion is also DENIED. I think it's clear by his reference to the tension between .020 and .11 several times, and those sections being pursuant to contest procedure rather than the standards to set aside an election, that he is not applying .11 as an annulment standard in his opinion. It's too early for that.

• Bridges also addresses the motion to dismiss Equal Protection claims, and summarily GRANTS that motion. This would seem to be fairly important in a larger sense, since it makes raising the claim in federal court nearly impossible, as only federal Equal Protection as an argument is likely enough to override the natural supremacy of state courts when deciding their conduct of elections.

The Democrats are now arguing their final motion, that the judge is able to set aside the election as a remedy. I will update that ruling if I am able, but I will be away from a PC for a while and may miss hearing it from the horse's mouth.

UPDATE 4:30pm--
Well, I'm glad I stuck around. The bombshell was saved for last. The final motion was the question of whether courts can order a revote. Bridges' ruling:

• provisions of the Constitution are mandatory unless otherwise stated elsewhere
• pursuant to the above, the governor must be elected in concert with all other races in the applicable general election, and held on the same day each time--the first Tuesday after the first Monday of November.
• finally, new elections for Governor must occur during a general election, and 29A 04.321 specifically omits elections for Governor in odd-numbered years.

Based on this set of facts, Bridges granted the Democrats motion. In other words, he DENIED Rossi the opportunity to receive a revote as a remedy for his contest petition.

Now, what this likely means is that the courts could rule the election invalid, but it would then be up to the Legislature to decide what to do. It's anybody's guess what would happen then, IMO. On the face it would seem like a massive victory for the Democrats, owing to their domination of the Legislature. However, it also opens up the doors for public comment to swing the Legislature, making the decision to rule in partisan fashion a risky one if it is seen as such.

I must say I did not expect this ruling at all. I figured the case would go forward, mostly for the reasons the judge cited--it's too early to dismiss without a full discovery of whatever facts Rossi can bring to bear. And I expected that if the court ruled that it had jurisdiction, it would generally reserve the right to do whatever it could to remedy to situation. That did not turn out to be the case, and ironically, it may have been Rossi's reliance on Foulkes in this case that led him astray. All day Bridges cited Foulkes, always using it to dismiss the motions to dismiss. But because the precedent Rossi cited concerned a local race rather than that for Governor, which has entirely different rules enumerated in the law, Bridges felt it could not apply.

Wow. Certainly not the last chapter, but after a string of losses, it would appear to me that the Democrats got a huge victory in the end.

Update 7pm--
I want to flesh out a bit what it appears this latest ruling implies. The judge always had three options, once the trial was set to go forward: set aside the election, uphold the election (thus leaving Gregoire as goobernor), or declare Rossi the winner.  You would think that the last option would be the golden one, but unfortunately (although perhaps commendably so) he himself has ruled out that option, according to the Seattle Times:

Bridges said that if Republicans did prove their case, he would not order a new election for governor as they want him to do. Rossi has said that was the only remedy he would accept.

So that leaves upholding Gregoire, or vacating the results entirely based on an inability to trust them.  The Times notes something I did not happen to catch during the hearing--Bridges indicated that  to be declared the winner Rossi will need to come up with 130 more illegal votes for Gregoire, than Democrats might find for him. This is a high standard, but one I've maintained all along was the necessary height of the bar, based on RCW 29A 68 .110. At this stage, it does not appear that Rossi has those votes in hand, or knows how to find them. That's substantiated by the fact that in his pleadings, Rossi maintains only that errors abounded such that no one could know who really won, not that he was the rightful winner.

Which leaves a vacated election, and nobody home at the Goobernor's Mansion. Which means that Lt. Gooobernor Brad Owen is probably going to bed tonight wondering if he's eventually going to end up sleeping there himself, since by law he would take over until the next general election. There's some question about whether that means 2006 or 2008, but Bridges ruled out 2005 and 2007 as possible years, based on the state constitution that informed this part of the ruling.  While he was in office, it would be plausible that the Legislature could themselves rewrite the law to allow a special election--but it would seemingly take amendment to that constitution, rather than a simple change of code. (Update: or not? The way I heard Bridges phrase it, it sounded like he was quoting the Constitution there. And he was in part, but the timing of elections is at 04 .321, which I do recall him citing.) And then there's the little problem that the WA statehouse is controlled by Democrats.

So for now--pending all manner of possible appeals, be they after Bridges hears the case or during--Rossi finds himself trapped in another irony: the remedy he wants, he can't have, and the remedy he can have, he's said he doesn't want.

*Sense of the blogosphere dept: it seems others are wondering if the Times' statement about the judge calling for illegal Gregoire votes as the standard is legit. I do confess I did not hear that, and neither did others...but at least one commenter someplace has said they did in fact hear him. Take that for what it's worth. So far the MSM line is that he did say it, I guess. Anyone who gets a clarification from the author, let me know or I may ask my own self.

--TJ

Comments

[Erik]

Nice neutral summation of the decision TJ.

If the contest is allowed to go forward as is, I think we may see an interlocutory appeal to the WA Supreme Court. Otherwise, everyone could waste their time if Supreme Court decides later the contest is in the wrong forum.

[Torridjoe]

Thanks, Erik. So you're saying that the intervenors will attempt to gain an immediate appeal on the venue ruling, so that if that's overturned, the case won't have to be fully re-heard at the Supreme level? Interesting.

[Carla]

Interlocutory...does that mean something like a "provisional" appeal?

[Frank]

Thanks for posting this stuff!

[Lahdee]

Tremendous work. Very clear and concise. All hail Judge Bridges. No revote and the spector of Federal court for equal rights protections is lessened. It ain't over, but the republics are going to take it on the chin in the PR department. No revote, that's what Mr/Ms/Mrs Washington will remember.

[JeanneB]

It sounds to me like the legislature would have no choice but to order a new election in November. Note the last two lines:

SECTION 10 VACANCY IN OFFICE OF GOVERNOR In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor; and in case of a vacancy in both the offices of governor and lieutenant governor, the duties of the governor shall devolve upon the secretary of state. In addition to the line of succession to the office and duties of governor as hereinabove indicated, if the necessity shall arise, in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor and in the order named, viz.: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant governor, who shall act as governor until the disability be removed, or a governor be elected; and in case of the death, disability, failure or refusal of both the governor and the lieutenant governor elect to qualify, the duties of the governor shall devolve upon the secretary of state; and in addition to the line of succession to the office and duties of governor as hereinabove indicated, if there shall be the failure or refusal of any officer named above to qualify, and if the necessity shall arise by reason thereof, then in that event in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor in the order named, viz: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. Any person succeeding to the office of governor as in this Section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term. [AMENDMENT 6, 1909 p 642 Section 1. Approved November, 1910.]

[Torrid]

thanks for the comment, JeanneB. Please note that Bridges specifically ruled out 2005, because it's not a general election where the governor is elected. The constitution says odd-number years are not when they can occur. So the earliest would be 2006.

[scottd]

Nice post, TJ. The problem for the GOP is that this contest is costing a lot, both in $$ and in distraction from other issues. Now it's becoming apparent that the judge is going to set a very high standard for awarding the election to Rossi -- a standard the GOP almost certainly cannot meet. Getting the election set aside may be easier, but all they get out of that is a Democratic Lt. Gov. and another election almost two years from now. Is that really going to be enough to make it worth keeping this issue alive?

I'm guessing they will fold sometime in the next two weeks -- maybe a little longer if they decide to take a side trip to the state Supreme Court. We'll hear a brave statement on how they are sure Rossi would have prevailed, but for the good of the state they will concentrate on needed election reforms and fielding strong candidates in upcoming elections. This will be far more preferable than burning their treasury on a protracted series of defeats.

[Erik]

Thanks, Erik. So you're saying that the intervenors will attempt to gain an immediate appeal on the venue ruling, so that if that's overturned
---

torridjoe, I made this comment before the striking ruling against Rossi. The GOP is the most likely now of the parties to make an appeal to the Washington Supreme Court as they lost big today.

The GOP's problem is that the judge struck a "remedy" of the GOP's contest petition. Stange at this stage. The Washington State Supreme Court may not want to hear the GOP's appeal now because it is not "ripe," in that they still don't know the trial court's ruling on the substantive issues are yet.

The republicans supporters don't seem to realize how badly they lost today. Yes, the remaining petition goes forward. But the standard the judge set is very high to overturn the election and the judge is demanding that the GOP show how Rossi would have won. I have seen absolutely zero evidence that the dead and felon voters favored Gregoire.

The judge rejected the GOP's assertion that they only needed to find 140 felon votes for a re-vote. Unless something comes up from whole clothw from the GOP in this area, Rossi doesn't stand a chance in the contest.

[Erik]

Thanks, Erik. So you're saying that the intervenors will attempt to gain an immediate appeal on the venue ruling, so that if that's overturned

I wished I shared your optimism scott, but I don't. Rossi is going to mess around with this thing until the supreme court rules against him on the substantive issues after the trial.

[chew2]

Thanks for posting your summary TJ.

I'm quite worried by your statement that the judge seemed to accept the Republican argument that Foulkes applies and that the Republicans can seek independent relief under the broad errors and misconduct standards of RCW29A.68.011, and are not limited to the grounds listed under the the election contest statute 29A.68.020.

I think this is a terrible ruling, and blame the Democrat lawyers, who did not even attemtp to discuss and distinguish Foulkes, from what I've read of their memoranda. There were many good arguments for why Foulkes shouldn't apply in this case.

If the court, claims broad equitable powers under the Foulkes standard there is no telling where the judge could wind up. In particular, all the provisional votes and alleged overvotes might be found to be error and misconduct, but since they might not meet the definition of illegal votes, the Republicans wouldn't be required to show that they were cast for Gregoire over Rossi. The judge might then attempt to overturn the election on that ground.

[scottd]

Erik (?): It's really not optimism on my part, because that would imply that I have a strong preference for the court to rule in CG's favor. I don't. I've frequently stated that I'm satisfied to see the case go to court and have the evidence examined under the rule of law. I can live with just about any outcome that develops under these conditions.

My post was based on the exercise of asking what I would do if I ran the WSRP. Clearly, in that case I would want to see Rossi prevail, but I would also have other considerations including cost, likely benefit to the party (not just Rossi), and the need to deal with other business. The uncertain possibility of winning another election in Nov. 2006 just doesn't seem worth the cost. In the cold light of reality, I would start to think about cutting my losses. Done quickly enough, this would still provide the option of playing the martyr card and maybe winning some political points that could be redeemed at the next election. Drag it out too long, and the WSRP may just end up looking like losers while expending considerable capital.

[George Bakan]

It is over for the R's....little noticed, letting the counties out. The R's were setting the stage for accusations in 5 or 6 couties of massive problems, mistakes, and who knows what else. All that PR went south.

Now it is facts. The judge said, let's have a trial with facts, and remember this is hard to prove and I will be narrow in any effort to overturn this election. No revote remedy on the table, period. He said very deliberately not in the law, or constitution and I will not use equity powers for that remedy. Dead.

The house of cards just tumbled. Rossi looks foolish, Chris Vance is a clown and the Dems are going to have a good session in Olympia.

[north clark county]

hey tj, nice to hear from you. It's been a while. As you know, I'm a Rossi supporter, but not a flamethrower in this discussion.

Here's my responses to what I see above.

Lahdee--
I was listening and the judge did not order "no revote". He said "I cannot order a special election."
And yes, the spectre of a federal equal protections claim is lessened.

torridjoe--
I did not hear the judge make any comment about ruling out 2005. All he did was read the constitutional and statutory provisions regarding gubenatorial elections, including the statute that indicates not in odd years. Whether that statute would hold up to the constitutional language may have to be decided before it's over.

scottd--
I responded to your point of the Rs folding elsewhere, but I don't think so.

Erik--
While I agree the judge set a high standard, I didn't hear him say that they have to show how Rossi won. The reason you haven't seen any evidence is because the trial hasn't started for evidence to be introduced.

George--
Letting the counties out doesn't in any way preclude calling them as witnesses or showing that they messed up. All that he said was they didn't need to send their lawyers to each hearing if they don't want to. You are correct on the PR point, the trial and remedy. But Rossi cards have not tumbled. If he meets the burden of proof, the election can be set aside and the former attorney general would no longer be governor. Brad Owen would be acting governor until a new election, either in 2005 or 2006. I would bet on 2005 due to the constitutional language in Art 3, Sec. 10 that JeanneB posted above.

[Erik]

Other than barring anyone but Brad Owen from the governor's mansion for the next two years, here is the big bad news for Rossi from the judge (Seattle Times)

---
But the judge cited a 1912 state Supreme Court case often mentioned by Democrats. In that case, the court found that if it is unknown which candidate received an illegal vote, "it must be treated as a legitimate vote."

Bridges also said it "may be problematical for petitioners to ultimately prevail on a theory or a cause of illegal votes."
---

I watched as the judge read portion of this case and the statute. He let the petition proceed as the GOP had plead enough, but the judge is going to require a nexus between illegal votes and the candidates.

The GOP has suggested extrapolating from the precincts. I don't see how that will do it. How should the votes be generalized? By gender? (pro-Rossi), by county (pro-Gregoire), by the portion of the county (either candidate), by age (pro-Rossi).

Seems too speculative and unlikely since the courts have specifically refused to engage in this exercise in the past.

[north clark county]

Erik--
I agree with you that the court will likely not speculate how illegal votes would be distributed. Bridges doesn't appear to be the type to engage in divination to guess how people might have voted. If they are truely illegal votes, how can a trier of fact conclude that illegal activity conforms to legal activity. It's almost by definition that it doesn't.

That being said, it appears to be left to the showing of the nexus. This doesn't mean that their has to be a definite showing of precise outcome, but a positive linkage between two events. It will be interesting to see what the judge will require for that.

[Torrid]

North Clark--thanks for your comments. I'm not allowed to post at SP anymore, so that's why I haven't been around.

Regarding 2005: I can't see where there's any wiggle room here. Bridges' point was that the language was entirely dispositive--you can only elect a governor during a general election, which only occurs in even numbered years. As for the section JeanneB cites, I think it actually says much the same thing:

[begin]
Any person succeeding to the office of governor as in this Section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term.

[end]

"if a vacancy occur more than thirty days before the next GENERAL ELECTION"...what constitutes a general election is clearly laid out. It's the ones in even years, when the legislature is also elected. Also also note that they talk about filling the office "for the remainder of the unexpired term." In other words, the person holding the office may hold it until the next general election, whereby they have to stand as a candidate to serve the remaining two terms.

Based on this, I think I'm ready to conclude that 2006 and not 2008 is the defined date for the next election for governor. Succession handles any vacancies in between, which is why we're talking about a potential "Governor Owens."

[north clark county]

I wondered. I enjoyed the good debates. I think it's healthy for people with deeply held convictions to have to support them without resorting to flaming. Writing them down is more difficult than spouting off verbally.

First, general elections occur each year.
"A statewide general election shall be held on the first Tuesday after the first Monday of November of each year." RCW 29A.04.321
See also, SoS elections calendar on his web site. It lists a general election this year. I comment below on the limitations.

I see Art. 3, Sec. 10 somewhat differently. It says that if the governor's office is vacant, the lt. gov. is acting governor until the next general election. It says nothing about the election filling a vacancy being an even year election, only that it can't be the third-year election. The person elected would serve the remainder of the term. Yes, there might be an apparent conflict with Art. 3, Sec. 1 providing that the governor be elected "at the same time and place of voting for members of the legislature", there it also creates an apparent conflict with Art. 3, Sec. 2 which says that the governor "shall hold his office for a term of four years." It seems that the filling of a vacancy is a special circumstance that does not necessarily have to conform to Sec. 1 and 2. Interestingly, the original language held that the lt. gov. would succeed to office with no provision for a new election.

The limitations in RCW 29A.04.321 on what can be presented at odd-year general elections cannot be inconsistent with the constitutional provisions for filling a vacancy. The legislature has made mistakes in trying to implement constitutional provisions, such as where they say in RCW 42.12.040 that say if the vacancy occurs on or after the sixth Tuesday prior to the general election, the election of the successor shall occur at the next succeeding general election. In the case of the governor, while the statute indicates six weeks, the constitution clearly says thirty days.

And I think the correct title will be "Acting Governor Owens."

[north clark county]

Oh BTW tj, when we first debated, I believe I mentioned that I was much more interested in the case I had before the SCOWS than in the governor's contest. They ruled on Thursday and my side won our appeal. It was the estate tax litigation. So I'm now ready for the election contest to go full speed ahead to the SCOWS.

[Erik]

North Clark--thanks for your comments. I'm not allowed to post at SP anymore, so that's why I haven't been around.

________

Why? Did you flame? Did you use all caps? Did you troll? Did you use logic? All of the above?

I have been their desigated troll for some time but have never ben banned. Maybe your arguments were more logical and compelling than mine.

[George Bakan]

Some weeks ago - there was a post about how Rossi was putting out the big mess case theory. And, when interviewed recently he used that term.

Big mess is not hard evidence. And with all the moeny and help over weeks, what do the have? A few hundred felons and less dead voters.....stunted case....will they proceed for long....I don't think so. Even Vance understand the concept of political self immolation.

This was quite a hearing - all the immediate rulings from the bench is like too much oxygen. Refreshing style.

[Ron]

I've been following the issue at hand myself and think there should be a revote. If the people of Washington can't have a 'revote' then maybe a new vote. Well, with what I'm now reading here I guess it dosn't seem like either is an option.
Either way, I don't see how either party comes out of all this without making elections in Washington look like the Special Olympics where it dosn't matter who wins, the winner is still retarded!
It's the people of Washington that's the real loosers in the end. With all said and done how can anyone have any trust in the election process as it is.
To end, one word I haven't heard yet but am sure I'll be hearing a lot more of in the comming weeks. Impeachment!