WA Gov: Excell Interview, Part Two

In Part One Mr. Excell and I went over his background, the base duties of the Secretary of State's office, his own role as Assistant or Chief of Staff, and specifically the process of review after an election. I think it was important to get that framework from which to phrase further questions, but he and I knew eventually I'd get around to asking about King County.  And so I did, in Part Two...

One of the first things I wanted to do was confirm what I had been overpromised by the Office's Communications Director--that King County had met all legal requirements. There seems yet to  be confusion on this point among some of the punditry, as if someone with a website had used Mr. Excell's words to imply that King was not complying. Excell provided confirmation however, and extended it to all 39 counties. As far as the Secretary of State is concerned,  all statutory requirements were fulfilled by all counties, and all required materials were received. Given the poor results so far on the recall effort of Reed, beefs to the contrary that may appear in Rossi's petition cannot be expected to hold much sway there, either.

I asked for a little more detail about what counties provided to the office, and in what steps. The first submission was the certified report of ballots cast, which was accepted and transmitted to the Legislature. The extent of this affirmation appears to be that the total number of votes equaled the sum of votes for all candidates.  (We agreed that this duty of the Secretary was "ministerial" rather than authoritative.) The second step would have been the fulfillment of the requirements in the WAC, including the emergency amendments of August 2004, which covered (among other things) pollnight reconciling and compiling of the by-precinct reconciliation forms and explanations that populate The Binder. These are not submitted to the SoS, but are held by the counties themselves. That they should be the focus of any reconciliation analysis is not in dispute, but the SoS does not have them--nor have they asked for them. 

What have they asked for? Clearly in Stefan Sharkansky's interview, there was something they'd asked for, that they'd only gotten in "dribs and drabs," and that they "didn't have a complete file yet." The last part is simple: on March 31st, counties are expected to provide a by-precinct abstract of the election. So if King hasn't provided a complete file, it's because no one has.

And here again, Excell reflected a sense that the contest process would significantly drive the discovery process for the SoS. After describing the additional info coming at the end of the month, he noted "we'll wait until the contested case is over, to get the final story."  This sounded suspiciously like a note of grace for the counties as they continue to serve the litigants. The state Republicans have not given their final allegations (this was before the release of the "naughty voters" list on Thursday), and it appears the Office is content to wait for those allegations to be placed into discovery, and learn along with the rest of us. One way some folks can get a jump on what happened,  Excell hinted, would be to check the canvassing board meeting minutes--for the boards handled many of the by-precinct discrepancy review discussions, and would give a taste of the discrepancies being seen out in the field.

So maybe King and the other counties are getting a break on their abstracts, but what else is the SoS looking for? I was never fully able to join the comments Sharkansky attributed to Excell, with the things that Excell explained to me that they were requesting from King--more formal reports on "their situation"--some kind of summary evaluation, apparently at a more technical level than the for-mass-consumption report given by Dean Logan last month. 

Excell was careful to say that King was not obligated to provide these things, but that "it would be helpful," and that it would "happen anyway; it's just a matter of time"--again underlining the lack of urgency, the dearth of fear about a cover-up, the normalistic way in which the SoS's office was proceeding with the aftermath of the election.  The interest would seem to be primarily on a public relations level, rather than an auditing level. And he also surmised that things had slowed down greatly in the last month or two, that he didn't expect any more bombshell-style revelations or further allegations about the mistakes that had been made.

This reference to past quotations Excell did stand behind, albeit in a revealing way: in his view and that of the Office, King County did make serious mistakes in their running of the election. He pointed to the usual examples--the 22 unsecured ballots, the 348 misfed provisionals, the 723 poorly matched signature absentees. ("A-HA," I can hear some of you saying. "Spin that!") When I asked why he considered them serious, he said "they're serious because there's an impact on the bottom line." I asked, so the level of seriousness is not based on the severity of the transgression in your mind, but on the fact that the race turned out so close and every mistake was highlighted? Yes, was the answer.

This seemed to me the most damning thing Excell said about Rossi's chances in the contest (he didn't offer a prediction, and I didn't ask).  Without clear official fraud--which I imagine Excell would have found serious even if the vote were not close--Rossi's best hope is to promulgate the image of an election gone awry, one seriously out of whack and irregularly irregular.  The WSRP and Rossi are trying to build a litany of error,  in hopes that the accumulated imperfections will undermine the platform of the governorship.  How does he make that case, if the errors he points to are not prima facie evidence of truly poor conduct? Any legal appeal that relies on the closeness of the result instead of the severity of the error on its own merits, to me is an appeal that will not persuade. Judges want to be convinced the process was out of whack before they declare the results just so.

We finished with some odds and ends:

• I asked for the hundredth confirmation that military ballots indeed went out on time. I got it, quote: "They did get out on time." We discussed briefly the ability of servicepeople abroad to fill out federal write-ins, even to the point of allowing simple straight-ticket instructions.  He also made the point that, for many Washingtonian military abroad, they were not receiving any mail, ballots or other kind.

• On HB 2158, the suggestion that all voters be de-registered in order to refresh the rolls and verify people as they re-up: Bzzzzt. Excell began to discuss conflicts with the Help America Vote Act (HAVA) provisions, but then I mentioned that this alternative might seek simply to inactivate the voter status, and request that registrants re-activate them. Quote, "That doesn't cut it, either." There are no Washington statutory grounds for inactivating a voter, except for non-participation in elections. Beyond the legal impossibility, Excell described it as a logistical nightmare, and a wide open door to fraud--"Imagine us trying to verify 3 million registrations all at once!"

• I asked if there were media outlets they had problems with in terms of their reporting, and he specifically pointed out the Evergreen Freedom Foundation (whose ponderous allegation sheet on the elections was released last week). Of particular ire were the claims about aliens voting (of which the Office has received no complaints to date), and the allegation that counties did not affix county seals to their certification materials (some simply didn't show up in the copies). According to Excell, neither reporting error has been fixed at EFF's site.

• I finished with a set of references to Sharkansky's claim that Excell declared SoundPolitics to be "pretty accurate," and that he (Stefan) seemed to have taken that to the bank, in a SoS-Approved, Good Housekeeping stamp kind of way. Since Sound Politics had been given the "pretty accurate" bill of health, I wanted to make sure Excell knew he was giving broad approval to.  I asked if it would be accurate to say that King County's compliance with federal guidelines on issuing military ballots was "still in doubt." That would not be accurate, he said. I asked if it would be accurate to say that Dean Logan's voter credit explanation was "a confession of massive incompetence, or worse." It would not be, he said. And I asked if it would be accurate to call Gregoire's election a "coup de tat by fraudulent voting and bureaucratic incompetence...a disgusting trashing of our democracy."  Amazingly, Excell said in his opinion that would not be accurate, either.

One thing I did not ask Excell about, was the inability of King to adequately account for a discrepancy of 1,860 between voters credited and ballots cast. I assumed that he was as clear as the rest of the county and state officials in understanding that the voter credit process was not a ballot reconciliation process. I leave it to others to ponder the continued vigor with which some continue to pursue such a thankless (and here laughably meaningless) task. I do admire the ability to make nice tables within text, however. In my single recent attempt to do such a thing, I failed early and often, and ended up linking to it instead.

I asked for 30 minutes from Mr. Excell; he gave me 55. If the Secretary of State feels like he's under siege, he's sending out his deputy to appear cool as a cucumber.

--TJ

Comments

[John]

Fantastic work, TJ.

The EFF report is so laughable. Tons of references to Sharkansky's scribblings and the "findings" of the BIAW.

[Torridjoe]

Thanks John. Regarding the EFF, I just edit-posted a cite found in the comments at SP, on what EFF really is and where they get the majority of their funding.

[Micajah]

Torridjoe,

Take a look at RCW 29A.60.230(2), which appears to be the March 31st report to which you refer.

http://www.leg.wa.gov/RCW/index.cfm?section=29A.60.230&fuseaction=section

Do you see which kind of ballot is the subject of the report that is due no later than March 31st?

Do you recall which kind of ballot is the subject of the reconciliation reports in the "big binder" at King County?

Now, read RCW 29A.60.230(1). See when the abstract that reports the county's election returns is due?

Did you perhaps misunderstand Mr. Excell, or is there some report other than the one in paragraph (2) that is due to be sent to the SecState by March 31st?

[Torridjoe]

No, I don't believe I misunderstood him. The phrase "precinct abstract" comes from him. It would appear that paragraph (1) is what is expected to be received on March 31st, combined with the parts in paragraph (2).

[Micajah]

Paragraph (1) says its report is to be sent "immediately" after the official returns are certified by the canvassing board -- not several months later at the end of March.

Paragraph (2) is a strange requirement for a report about absentee ballots -- if the information wasn't already put into the report required to be submitted "immediately" in accordance with paragraph (1). (I say "strange requirement" because I cannot think of a reason why anyone would have singled out absentee ballots for some kind of months-later report to the SecState. I don't know what purpose it was thought to serve, much less why only absentee ballots would be the subject of the report.)

At any rate, while there may be some other report being requested by the SecState, the "big binder" has zilch to do with the absentee ballot report required by paragraph (2).

So, if there is another report, what RCW or WAC requires it? I found nothing -- that's why I asked if you perhaps misunderstood what Excell said.

[Torrid]

I agree it doesn't quite add up according to the RCW/WAC. But I've just checked my notes, and they are in order--ballot count verification for certification, then WAC compliance (the emergency order) to be held by the county, and then the "precinct abstract" on March 31st. Para (2) refers to the abstract, and para (1) seems to be about the abstract.

I'll see if I can have Excell clarify.

[Micajah]

Since Excell apparently did say that King County wasn't obigated to provide the requested info, maybe the SecState is just sort of reviewing what happened without getting into the details while the court discovery process is ongoing. You had also said:

Excell was careful to say that King was not obligated to provide these things, but that "it would be helpful," and that it would "happen anyway; it's just a matter of time"--again underlining the lack of urgency...

I'm thinking that the discovery process must be expected to conclude by the end of March, and that's why King County is not promising to make the "big binder" available until then to people who submit public records requests. Excell and the SecState's office may simply not be pressing King County for the same reason -- letting the discovery process be the method by which the parties get their info for the trial.

[Torrid]

It may not have been clear, but there are two separate issues we talked about re King: the required submissions, and any extralegal requests. The "not obligated" part refers to the latter, the "no hurry" part to the former, was my sense.

I notified Excell of the posting of both, and called for him to offer clarifications if necessary; at this point none has come, and I interpret that at this time as assent to what I published. But I will contact him and ask him to clarify a) what they expect 3/31, and b) how it relates to the RCW sections you cited. I think that will be helpful--thanks for commenting.

[Torrid]

That should read "posting of both parts"--as in, of the interview...