Week One: Election trial dispatches

POSTED 6:30 PM Friday
Day 5 ends; trial resumes Tuesday

The trial has recessed for the three-day weekend. The afternoon was filled with county auditors and election officials testifying to problems in their counties that are similar to those in King County. Republicans grilled King County officials about their problems earlier in the week.

Republicans did little cross-examining of the witnesses. But they did ask several auditors if they would have given their canvassing boards a report they thought was wrong, which Republicans say King County officials did.

Democrats will resume their case Tuesday at 9:30 a.m.

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POSTED 4:00 PM Friday
Spokane found uncounted absentees, too

Spokane County Auditor Vicky Dalton is on the stand being questioned by Democratic attorney David Burman. Democrats are going through the same set of questions with each of the auditors and election officials they've called.

As with the others, Dalton was asked about discrepancies in ballot reconciliation as Democrats try to show that the types of problems King County has had are common around the state.

Spokane found eight uncounted valid absentee ballots recently. King County discovered as many as 96. Republican Party attorney Mark Braden, in one of his few questions so far for Democratic witnesses, asked if those ballots would have been counted if they were found on election day.

Dalton said they would have been counted as long as they had been found before the vote was certified, and told Braden, "Yes, I do consider this to be an internal office error."

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POSTED 3:08 PM Friday
Clark County auditor: Logan well respected

Clark County Auditor Greg Kimsey testified that his county, like King County, had discrepancies in reconciling ballots after the election.

Under questioning from Democratic attorney Jenny Durkan, Kimsey said the county did not perfectly balance either poll votes or mail-in ballots.

Republicans have made much of King County's reconciliation problems, saying that discrepancies in the absentee ballot report opened the door to fraud.

In Clark County there were 57 more absentee ballots counted than people recorded as having voted by absentee.

For poll votes, there were 32 more votes than voters.

Durkan: "Is the fact that you were able to reconcile the polling places within 32 an indication to you, as the auditor, that there was any kind of fraud in Clark County?"

Kimsey: "No."

Durkan also asked Kimsey about King County elections director Dean Logan. Kimsey said Logan is a well respected auditor in the state with deep knowledge of state and national election law.

Republican attorney Mark Braden is now cross-examining Kimsey.

Braden asked few questions of Kimsey and abruptly cut off questioning when the witness said he couldn't answer a question and "would have to plead ignorance."

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POSTED 3:00 PM Friday
Clark County auditor takes the stand

Court is back in session and Democrats have called their first witness as they begin to put on their case.

The witness is Clark County Auditor Greg Kimsey, a Republican, from a county that voted for Dino Rossi in the governor's election.

He is being questioned by Democratic Party attorney Jenny Durkan, who is asking about Clark County's implementation last year of a new computer system called DIMS. It is the same system used by King County's elections office.

Kimsey is the first of several auditors Democrats will call to the witness stand as they try to show that errors are normal in elections and that they happened around the state in November, not just in King County.

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POSTED 1:32 PM Friday
Judge: It would be a disservice to dismiss case now

Judge John Bridges, in denying Democrats' motion to dismiss the case, said he knew Democratic attorneys would think his ruling was a disservice to their clients.

"I think it would also be a disservice to the petitioners (Republicans) to cut this case off now without requiring both sides to represent to this court everything they have in support of and opposition to the respective theories that have been advanced by both parties in this case," he said. Both sides, he said, also deserve "a full and complete analysis, not only of the court's finding of facts but as to the court's conclusions of law."

The judge also commented on what he said were the extraordinary circumstances surrounding the election contest statute.

"I cannot imagine that our ladies and gentlemen of the state Legislature ever contemplated the situation we find ourselves involved with today," he said,"where the parties and their attorneys have spent not less than six months trying to figure out what happened here and trying to collect evidence to support their various theories."

Court is now recessed until 2:15 p.m.

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POSTED 1:21 PM Friday
Judge refuses to dismiss case

Judge John Bridges denied the Democrats' motion to dismiss the case. He has kept all claims alive.

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POSTED 1:05 PM Friday
GOP re-argues a point, despite earlier ruling

Harry Korrell, the Republican attorney, is re-arguing a decision Judge Bridges has already made and clarified in pre-trial hearings. Republicans contend the judge is wrong when he says they have to show that Dino Rossi is the true winner of the election and not just that errors and illegal votes make it impossible to know who really won.

Korrell said state a Supreme Court case, Foulkes v. Hays, means all that Republicans have to show is an inability to determine the true winner.

"With all due respect to your honor and this court, the Foulkes case compels rather than precludes you setting aside this election," Korrell said. "It is for the Supreme Court to decide that Foulkes and its interpretation of the contest statute should be changed."

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POSTED 12:30 PM Friday
Republican attorney defends case

Attorney Harry Korrell is speaking for the Republicans on the Democratic motion to dismiss the case. He is defending the Republican case, saying the party has identified 789 illegal votes, from felons, double-voters and ballots cast in the names of dead people.

"We've had a semantic debate about whether fraud is in this case," said Korrell, who said voting under the name of someone else is voter fraud.

He said King County's errors in handling provisional ballots also resulted in illegal votes and should not be allowed.

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POSTED 12:15 PM Friday
Secretary of State's attorney opposes dismissing case

Democratic attorney Kevin Hamilton has completed his argument. Thomas Ahearne, representing the secretary of state, is now telling Judge John Bridges he opposes the Democrats' motion to dismiss.

Republicans will then get a chance to respond.

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POSTED 11:48 AM Friday
Republicans rest their case

Republican attorney Harry Korrell just told the judge: "Your honor, on behalf of the petitioners we rest our case."

The Democrats' Kevin Hamilton then moved to have the case dismissed. He is continuing his argument.

"They have failed to meet their burden of proof in the case," Hamilton said.

Hamilton said much of the Republicans' case has already been settled by the judge in pre-trial decisions or during the week of trial so far.

"It's settled that petitioners must show more than just errors, more than just frustration with a new computer system, more than just rumor and innuendo," Hamilton said. "Could have is not sufficient. One can always speculate."

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POSTED 11:28 AM Friday
Republicans close to resting their case

Judge John Bridges has recessed court for 15 minutes so Republican attorneys can huddle and decide whether they are now ready to rest their case.

As the attorneys stumbled a bit in trying to sort out misprinted depositions and find a complete copy for Bridges, the judge looked down at the 10 attorneys at three tables and said flatly, "I've had this constant headache for six months."

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POSTED 11:00 AM Friday
Polling-place inspectors' remarks allowed as evidence

More debate about evidence before Republicans rest their case.

Judge Bridges says he'll allow Republicans to introduce King County ballot "accountability sheets."

These are one-page reports with tallies prepared by polling place workers on election day. Each sheet has a comment section where the polling place inspector is asked to explain discrepancies in ballot counts.

One inspector's response: "Are you kidding? With 858 ballots handed out, a book falling apart and continuous voters from 7 a.m. to 8:45 p.m., never a break except for lunch - I don't know!"

Democratic Party attorney Jenny Durkan objected to admission of the evidence. She said that if Republicans wanted to know what happened in polling places they should have subpoenaed the workers themselves because the reports "are rife with opinions and conclusions about what may or may not have happened in the 570 polling places and over 1,000 precincts," she said.

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POSTED 10:30 AM Friday
Arguing over Post-it Notes

Judge Bridges said he'd allow Republicans to submit evidence of additional alleged double voters - people accused of voting twice but who didn't appear on a list submitted by an April 15 deadline.

Now both sides are arguing about evidence Republicans want to introduce relating to two voters in Lewis County who say their absentee ballots were stolen, forged, and returned to the county for counting in the November election.

Bridges said he wasn't sure what evidence there was "other than the Post-it sticker that says 'these are forgeries.' That's what concerns me."

Attorneys for the secretary of state and the Democratic Party want the Post-it Notes excluded. "That's not my Post-it, your honor," said Republican Party attorney Harry Korrell.

Bridges wants the attorneys to redact information that's on the Post-it Notes before he will allow the documents to be admitted.

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POSTED 10:02 AM Friday
Republicans cite double voters as Day Five opens

The fifth day of the governor's election lawsuit is underway. Soon Democrats are expected to move to have the case dismissed.

But before they get to that, Republicans have a bit more evidence they want introduced. That includes the names of six people accused of voting twice. Democratic attorney Kevin Hamilton asked the judge to exclude it because the names were not included on the Republicans' final list of alleged illegal voters, submitted April 15.

Republican attorney Harry Korrell said that partial information for some of the people was included on the April 15 list.

"They were disclosed as much as could be disclosed at the time," Korrell said.

Bridges last night took home reams of depositions to read which were to serve as the Republican's final testimony.

Now Republicans say they need to put one more witness on the stand to testify about the new spreadsheet of double voters they want to submit.

Bridges said he's having a hard time understanding exactly what the two sides are fighting about. "I stayed up too late last night," he said.

Dan Brady, an attorney who worked with the Rossi legal team compiling records, is on the stand for what should be a brief appearance.

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POSTED 4:45 PM Thursday
Tomorrow: Democrats expected to move for dismissal

Tomorrow's session will start at 9:30 a.m. to give Judge John Bridges time to read depositions being submitted tonight.

Then Democrats are expected to move for dismissal of the case, even though Republicans will not officially have rested their case.

The Republicans will be able to introduce other exhibits later, Bridges said.

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POSTED 4:05 PM Thursday
Experts get to the heart of their analysis

Once Judge John Bridges ruled that he would allow the testimony of Republicans' expert witnesses, both took the stand and explained the methodology they used to conclude that Republican Dino Rossi would have won the governor's race if illegal votes were subtracted from the candidates' totals.

Professor Jonathan Katz said the Democrats' proposed method of using polling or surveys to analyze illegal votes would not necessarily be any more accurate than his model of "proportional deduction" based on geography.

He said it would be difficult to reach the illegal voters to survey them and that the longer the time between an election and a survey the more likely someone is to say they voted for the winner, even if they didn't.

Under questioning from Democratic attorney David Burman, Katz said his model is the best that could be done given the data available to him.

"The general rule of statistics is that more information is better than less," Katz said, but said there wasn't anything better available.

Anthony Gill, an associate professor of political science at the University of Washington, is on the stand now. It is the first time he has ever testified in a trial, and he said he has been an active King County Republican.

He said he uses the same method Katz used with the same underlying logic.

"Would it be correct for me to say that you two gentlemen came to very similar if not exact conclusions as the best way to approach this totally independently," he was asked by Republican party attorney Mark Braden.

Gill: "Yes, independently."

The Republican experts' reports were prepared before Democrats submitted a list of hundreds of felons from other parts of the state that voted more heavily for Rossi. The Republicans' list of alleged illegal voters included mostly felons from King County, which went heavily for Democrat Christine Gregoire.

During the earlier hearing, Burman asked the experts a lot of questions about how the reports would be different if the set of alleged felons and other illegal voters changed. He did not ask any direct questions, though, about specifically what the Democratic list would do to the analysis.

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POSTED 2:30 PM Thursday
Judge allows statistical analysis - for now

Judge John Bridges said he would reserve judgment on whether the Republican expert testimony meets state standards.

He said he would allow the evidence for now.

"I have some concerns based on the testimony I've heard," he said. "But I'm going to reserve ruling on this and I'm going to ask counsel to go ahead and put on their cases."

The judge heard a half day of testimony on the scientific value of the proposed testimony. The special hearing was for the judge to decide whether the Republicans' proposed plan for apportioning illegal votes is based on established scientific methodology and a valid technique to implement the theory.

But Bridges said he isn't ready to rule on that. He told the attorneys that he has tried to err on the side of allowing testimony and evidence because he knows the case will be appealed to the state Supreme Court and he wants the high court to have the most complete record possible.

Bridges said he will decide later whether the evidence meets the standards for expert testimony, then whether it is admissible under rules of evidence, and thirdly whether the election contest can be decided on the basis of proportional deduction.

"I think it is the only practical way we can proceed," he said.

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POSTED 2:30 PM Thursday
Secretary of state's attorney: "Cherry picking" OK

All sides are summing up their arguments about the Republican theory of proportional deduction -- that felon and other illegal votes should be apportioned by the same percentage as the total vote in any given precinct.

"There is huge room for error when you deduce or infer something about individual behavior from aggregate behavior," said Democratic attorney David Burman.

"You cannot simply assume individuals are like the place they live or will behave in the same way as some smaller unit."

Republican attorney Mark Braden countered Burman's argument that allowing the expert testimony would open the door for many more election contests in the future.

"This is the closest election for governor in American history," Braden said. "I think possibly having a successful contest action once every 200 years is not going to overburden the judiciary."

Thomas Ahearne, representing the secretary of state's office, said Democrats are wrong when they argue that the Republican theory is flawed because the GOP looked for illegal votes only in Gregoire precincts - "cherry picking," they've called it. Ahearne said there is nothing in the law that requires Republicans to submit a list of all illegal votes.

Ahearne said the Republican expert testimony should be allowed.

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POSTED 1:55 PM Thursday
Expert on illegal votes defends his method

Court is back in session. Judge John Bridges is continuing to hear testimony about the Republicans' expert witnesses. Jonathan Katz is back on the witness stand and is being questioned by Republican attorney Mark Braden.

Katz said there is nothing novel about the methods he used to analyze illegal votes, that the analysis would be generally accepted among social scientists. Those are key standards the judge will look at in deciding whether the expert testimony meets state standards.

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POSTED 12:18 PM Thursday
Lunch time, but first an argument over illegal votes

The court has recessed for lunch until 1:30 p.m.

Democrats' expert witnesses have criticized the Republican theory of "proportional deduction" in part because the sample of illegal votes the GOP is using was hand -selected by Republicans; that is, it doesn't necessarily reflect the entire universe of illegal votes.

So Republican attorney Mark Braden asked UW professor Mark Handcock, a Democratic Party expert, to assume that the judge rules later on what the universe of total illegal votes would be, and whether that would nullify the criticism.

After much back and forth, Handcock agreed.

But that led Democratic attorney David Burman to jump up.

"I'm not sure they mean the same thing [by] 'universe,'" he said.

Overhead from a spectator: "They're arguing about the meaning of the universe."

Before the lunch break Burman asked Handcock about the one election case he has written about. It turns out that the Pennsylvania case involved proportional deduction, and Handcock said it had included a survey of voters and testimony from a number of the alleged illegal voters.

Braden finished up with questions to show that Handcock has never before been an expert witness in a court case.

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POSTED 12:10 PM Thursday
Flipping a coin in the witness box

Republican attorney Mark Braden is focusing his cross-examination again on credentials. He asked UW professor Mark Handcock, a Democratic Party expert, about how much of his books, articles, awards and memberships in professional societies, relate to elections.

"One of the cases in one of the books deals with election data," Handcock said.

He is a professor of statistics, not political science.

At one point during Handcock's testimony, he flipped a coin in the witness box as he explained probability.

Judge Bridges watched intently.

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POSTED 12:10 PM Thursday
GOP attorney: National study says felons vote Democratic

Republican attorney Mark Braden asked Christopher Adolph, the Democrats' expert, about a national study of felon voting. The study said that if felons currently ineligible to vote had been allowed to vote in elections that they would have voted strongly Democratic, and would have meant a Democratic victory in the 2000 presidential campaign, also tipping control of the Senate to Democrats.

Adolph did not dispute the findings that were published, but he said he didn't agree with the assumptions made in the study and questioned whether it would be useful in the trial.

Braden also asked about demographic information about felons, showing that they tend to be racial minorities with lower education levels, groups that tend to support Democrats.

Adolph is now done and Democrats are calling their second witness to refute the Republicans' expert testimony. That witness, Mark Handcock, is another University of Washington professor.

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POSTED 11:15 AM Thursday
Democratic expert: Just ask the felons

The Democrats' expert witness says that instead of using proportional deduction to determine how felons voted, he would ask them directly.

Republican attorney Mark Braden is questioning the expert, UW professor Christopher Adolph. Adolph has attacked the Republicans' proposal to use precinct voting results to determine how illegal votes affected the election.

Braden said that under Adolph's view, it'd be hopeless to determine how felons voted. "I would recommend simply asking them," Adolph said.

Braden: "You believe individuals would be likely to answer a question that is likely to be admitting to a crime?"

Adolph: "I think it's worth a try."

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POSTED 11:15 AM Thursday
Democrats' expert attacks the work of his former boss

The method Republicans want to use to subtract alleged illegal votes by felons and others has been referred to as proportional deduction. Social scientists call it "ecological inference," which means an assumption of an individual's behavior based on the behavior of a larger group.

UW professor Christopher Adolph, the Democratic Party's expert witness, said that since 1950 scientists have been cautioned about "aggregation bias" and "ecological fallacy" that could skew results when using ecological inference.

He said one example is that the Republican theory assumes that the sample of alleged felons are exactly the same as the total group of voters in a given precinct. But, he said, the list of felons has a much higher percentage of males than the wider population.

The Republican method "is very badly flawed," Adolph said, because it "commits the ecological fallacy and assumes felons are just like everyone else."

Republican attorney Mark Braden is now cross-examining Adolph. He's starting with Adolph's background, making the point that he is a recent hire at UW, is not yet tenured and has never before been an expert witness.

Adolph was also a graduate assistant to Jonathan Katz, the Republican expert whose work he is now trying to discredit.

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POSTED 10:45 AM Thursday
Felon-voter testimony contentious

Democrats have called their own expert to help discredit the Republicans' expert on proportional deduction.

Christopher Adolph is an assistant professor of political science and part of the Center for Statistics and the Social Sciences at the University of Washington.

Adolph takes the stand following a contentious session with the Republican expert, Jonathan Katz, a professor of political science at the California Institute of Technology.

Democratic attorney David Burman was aggressive with the witness and at one point barked at Katz when the professor looked at the Republican attorneys.

"Please stop looking at them. Look at me and answer my questions," Burman said.

Republican attorney Mark Braden objected, and said he thought Burman's attack was outrageous. Judge John Bridges told Burman to refrain from those sort of remarks.

Adolph is saying that the Republican studies on proportional deduction are scientifically flawed.

"One thing that struck me as remarkable, they make no effort to vouch for the provenance or properties of the data," Adolph said under questioning from Burman.

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POSTED 10:00 AM Thursday
How did felons vote? A debate over analyzing illegal votes

Democrats are trying to exclude testimony from one of the Republicans' expert witnesses. Judge John Bridges is hearing Democrats grill Jonathan Katz, a professor of political science at the California Institute of Technology.

Democratic attorney David Burman is not challenging Katz' credentials or experience. Instead, he is asking about the science used in Katz's "proportional deduction" analysis.

Burman has asked a series of questions about what additional information could be used to determine how felons voted other than the geographic analysis Republicans want to use.

Democrats say it'd be more accurate to use age, gender, occupation or other demographic information to predict how felons might have voted in the election. Republicans want to analyze illegal votes based on the overall vote in precincts where the illegal votes were cast.

Katz said "given the nature of the secret ballot" that it's a "difficult statistical problem" to say with certainty how a subset of voters voted.

He said proportional deduction based on geography is the best available method.

Katz: "It gives an estimate, my best estimate of that."

Burman: "There are ways to get information about individuals other than forcing them at gunpoint to tell how they voted, isn't that right?"

Katz said he didn't know enough about Washington law to know what other information might have been available.

Under questioning from Burman, Katz said Republican lawyers did not ask him to develop a scientifically designed sample to analyze felon voters, but gave him the data necessary for the geographic analysis.

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POSTED 9:50 AM Thursday
Judge Bridges to witness: Prepare to be worked over

Clark Bensen, the Republican data analyst, is done on the stand for now. Unlike most other witnesses, he has been asked to remain available.

Republican attorney Mark Braden is now questioning Jonathan Katz, a professor of political science at the California Institute of Technology. He is one of the Republicans' experts who they hope will testify about how to apportion illegal felon votes.

Republicans want illegal votes subtracted from the candidates' totals, precinct by precinct, in the same percentage as the overall vote in those precincts.

Katz's testimony will lead to what is known as a Frye hearing, where Democrats will challenge the methodology and the analysis he has done.

That's a procedure in state court. Katz asked Bridges what the hearing would entail.

"In summary, I think Mr. Burman is going to work you over," Bridges joked.

Burman said he didn't know if he'd live up to that. But he said he would challenge the validity of the underlying assumptions Katz used as well as the methodology.

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POSTED 9:10 AM Thursday
A Democratic punch, then an objection sustained

In his cross-examination of Clark Bensen, the GOP data analyst, Democratic attorney David Burman asked a series of questions about the accuracy of the information Bensen collected on vote returns from the November election.

He had Bensen agree that there is some uncertainty to the data. And then he got to the point.

"You'd be really offended," Burman said to Bensen, "if I accused you of a fraud because you are not absolutely certain of the accuracy" of the records.

That's what Democrats say Republicans have done with King County election officials -- take uncertainty and errors and call it fraud.

Burman was stopped from continuing that line of questioning when Judge John Bridges sustained a Republican objection.

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POSTED 8:54 AM Thursday
Day Four: Democrats cross-examine data analyst

Court is in session for the fourth day of the governor's election trial. Democrats will now cross-examine Clark Bensen, the Republican data analyst. Democrats objected to much of his testimony yesterday, though Judge John Bridges allowed most of it.

Bensen is not an expert witness but a fact, or lay, witness. Bridges has said he will make sure Bensen doesn't drift into expert territory, offering any opinions about the numbers he presents.

The cross is being done by David Burman, a partner at Perkins Coie. He represented Democrats in the state Supreme Court cases heard after the election, but hasn't been heard from much in this case. Yesterday Burman showed himself to be aggressive and relentless in his objections.

Later today Bridges will hear the Democrats' motion to exclude the Republican expert witnesses who are set to testify about alleged illegal voting by felons.

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POSTED 5:35 PM Wednesday
Court adjourns after fight over evidence

Court adjourned for the day after a long fight about evidence showing discrepancies in King County's vote tallies. Judge Bridges allowed most of the evidence, but made it clear that he was going to hold Republicans to a narrow path in allowing evidence from Clark Bensen, their data analyst.

Tomorrow will begin with Democrats' cross-examination of Bensen. Both sides hope Bridges will then hold the special hearing on the Republicans' expert testimony. Those witnesses, two professors, have to convince Bridges that the science they will use is generally accepted and reliable.

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POSTED 4:18 PM Wednesday
Consultant is walking a fine line, judge says

Republican attorney Mark Braden and Democratic attorney David Burman spent a lot of time arguing before Judge John Bridges about what data analyst Clark Bensen can testify about.

Burman tried to stop almost all of his testimony, saying it was a Republican attempt to get Bensen to sneak in expert testimony after a deadline had passed for disclosing expert witness lists.

Judge Bridges allowed the introduction of a report Bensen did compiling voting records from King County. The report compares vote totals in the governor's race with discrepancies between the number of ballots cast and the number of voters shown as having cast ballots.

But Bridges will carefully watch Bensen, who he said "is walking a very fine line between a lay witness and an expert witness."

"The saying is 'trying to lick honey from the edge of a razor blade,' I think," Bridges said.

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POSTED 3:40 PM Wednesday
Can statistical consultant give his opinion?

Clark Bensen, the Republicans' statistical consultant, is on the witness stand. He is a Washington, D.C.-based data analyst and has a long history with Republican Party political campaigns.

A debate is likely as Democrats try to make sure that Bensen testifies only as a "fact witness" to verify data he has provided the Republicans. He is not an "expert witness," which would allow him to give his opinion on the data.

A large chunk of the Republican case rests on statistical analysis, both to determine how felons may have voted illegally and to show abnormalities that Republicans say benefited Gregoire - specifically, ballots that were added to ballot boxes in some precincts and some that disappeared in others.

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POSTED 3:08 PM Wednesday
Judge Bridges questions witness directly

Judge John Bridges did his most extensive questioning of a witness yet, going column-by-column through a mail ballot summary and asking a King County supervisor how it was produced. The supervisor, Nicole Way, has already testified that one of the numbers on the report was fudged because the county had lost track of how many absenetee ballots had been returned to the county by voters.

After asking a series of detailed questions about problems King County faced in tracking ballots, Bridges said to Way, "I guess I have to ask whose idea was it to install this new computer software program right before this general election?"

Way didn't answer immediately.

"It's OK, you can say," Bridges told her.

Way: "Not mine."

Bridges: "Does counsel have any other questions?"

Way: "Please, no."

Under questioning from Republican Party attorney Harry Korrell, though, Way was asked when she knew the number was inaccurate. Korrell said she told the judge she realized that when 95 uncounted absentee ballots were discovered in March. But in her deposition before the trial, she had said she and her boss, Garth Fell, discussed what to do before the report was published.

"We discussed how to fill out this report because we didn't have an accurate number of ballots returned," Way said in her deposition, according to a reading by Korrell.

Way's last question on the stand came from Democratic attorney Jenny Durkan, who asked if Way wanted to explain the apparent discrepancy in her answers.

Way, her voice cracking after hours on the witness stand, said: "It was as accurate as it could be. I was concerned it was wrong, but I didn't know there were ballots unaccounted for in this report until the 95 were found."

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POSTED 2:44 PM Wednesday
Missing signatures addressed by Democrats

Democratic attorney Kevin Hamilton asked Nicole Way about hundreds of absentee ballots that had been mistakenly rejected because county voter records were missing the signatures of those voters.

He asked her to look at Democratic exhibits, and to say whether a signature from an absentee ballot envelope matched one from that voters' driver's license.

Before Way could answer, King County Deputy Prosecutor Don Porter objected, saying Democrats were trying to make a case that those ballots should have been counted. But he said the evidence shown to Way in court was not available to election workers at the time the ballots were processed.

"This is entirely speculative," Porter said.

Hamilton said Democrats wanted to establish that if King County workers hadn't lost the signature record, "they would have had a signature of this voter."

Bridges allowed the question, and Way said the signatures matched.

Republican Party Harry Korrell is now back questioning Way, the King County mail-ballot supervisor. And Bridges made it clear that he does not yet fully understand the mail ballot summary report that has been the focus of so much of Way's testimony today.

"I want to go through this mail ballot report so I have it straight in my mind before Ms. Way leaves for the day," Bridges said.

He said he will ask Way some of his own questions, something he has done very little of in the trial so far.

"I'm sorry to beat this to death but I want to make sure I have it straight in my mind what this is all about," he told Way.

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POSTED 2:02 PM Wednesday
Judge concerned about attorneys

Court is back in session. The judge has told attorneys that the microphones in the courtroom were accidentally left on during a recess and some of their conversations were picked up by TV crews.

Judge John Bridges also told the attorneys he's worried about them, and asked if they're getting any sleep.

"We sleep in shifts, your honor," said Republican attorney Harry Korrell.

On the stand is King County's mail ballot supervisor, Nicole Way, who is now beginning her fourth hour of testimony. She is under cross examination by Democratic party attorney Jenny Durkan.

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POSTED 12:10 PM Wednesday
Court recesses for lunch

Just before the break, Democratic attorney Jenny Durkan asked Nicole Way about King County's mail-ballot summary report.

Way, the county's mail-ballot supervisor, has already said that she and her boss, Garth Fell, didn't know how many absentee ballots had been returned by voters. Instead, they filled out the summary by simply adding up the numbers they did know for ballots counted and ballots rejected.

"You used the same formula in previous general elections, isn't that right?" Durkan asked.

Way: "Not exactly."

Durkan said they'd talk later about those differences. But her point was to try and show that the report is not an essential part of the post-election reconciliation of ballots, and that's where her questions focused.

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POSTED 11:50 AM Wednesday
Democrats cross-examine mail-ballot supervisor

Jenny Durkan, a Democratic attorney, is now cross-examining King County mail-ballot supervisor Nicole Way. Like they did yesterday with county Elections Superintendent Bill Huennekens, Democrats will use the witness to argue any vote-counting errors were innocent and a regular part of business in a busy election.

Durkan: "Do you try to do your job in a fair and impartial way?"

Way: "Yes."

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POSTED 11:20 AM Wednesday
A bit more judicial commentary?

Republican attorney Harry Korrell and Democratic attorney Jenny Durkan just argued about whether Republicans could enter into evidence a spreadsheet produced by a temporary worker under Nicole Way's supervision.

Durkan told the judge that Way, King County's mail-ballot supervisor, could not say with certainty that the report is accurate, saying there could be math errors or input errors. Bridges allowed the evidence.

He then said that if he applied Durkan's accuracy test 100 percent of the time to exhibits in this case, "there'd be no evidence in this case."

He smiled, and everyone laughed.

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POSTED 11:00 AM Wednesday
Political celebrities check in on trial

Sen. Steve Johnson, R-Kent, is something of a legal tourist this morning. Johnson is an attorney. He said he was in the area on business but wanted to stop in and watch some of the proceedings.

"It's historic," he said.

Attorney General Rob McKenna is also expected to visit the courtroom today. He is in town speaking to the Washington Association of Sheriffs and Police Chiefs. His office, through Assistant Attorney General Jeff Even and special counsel Thomas Ahearne, represents Secretary of State Sam Reed in the case.

Sen. Margarita Prentice, D-Renton, was here for the first two days, with Democratic Party Chairman Paul Berendt.

Former House Speaker Clyde Ballard, R-East Wenatchee, made appearances here yesterday and again this morning. He watched most of the pre-trial hearings.

In the mid-'90s, Wenatchee was the conservative power center of the state. Ballard was speaker, or co-speaker, and for a while Dale Foreman was the Republican House majority leader, his No. 2. Foreman is the Republican's local counsel in the governor's lawsuit and delivered the opening argument Monday.

Ballard is retired from politics and business. Foreman was state party chairman, and a gubernatorial candidate.

They always made an interesting pair. Ballard is the son of migrant workers who built up a successful ambulance and medical services company that made him wealthy. Foreman is a Harvard-trained attorney who wrote a book about a lawyer's view of the trial of Jesus.

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POSTED 10:05 AM Wednesday
Is the judge getting frustrated?

Judge John Bridges just called a quick break to deal with a technical problem with the court reporter's system.

He told witness Nicole Way she could step down, but joked that she should not run off.

"Even though I may want to run off with you," he said.

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POSTED 10:05 AM Wednesday
Republicans try to lay blame on King County managers

Republicans are relying on Nicole Way, King County's mail-ballot supervisor, to provide evidence showing who in the county knew about an erroneous mail ballot summary that she and her boss prepared.

They want to show that upper managers, including Elections Supervisor Bill Huennekens, were aware of the report's false numbers.

Over objections from a Democratic attorney, Republican lawyer Harry Korrell asked, "Did you believe Mr. Huennekens knew, Ms. Way?"

Way: "I thought he did."

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POSTED 10:05 AM Wednesday
King County supervisor: Computer couldn't track ballo

Republican attorney Harry Korrell is asking Nicole Way, the King County mail-ballot supervisor, about problems with the computer system the county was using to track absentee ballots. On a screen he has projected an e-mail Way sent her boss, Garth Fell, to complain about the computer system, known as DIMS. He asked her to read from it.

"I am sorry to say this, but DIMS is very lacking in any real tracking of anything," she read. "We can not say for certain how many ballots have been issued/mailed, how many reissued, who has been issued what, how many ballots are actually returned/batched ... how many ballots are actually verified and accepted vs. challenged by us."

Way said the biggest concern was the computer system's inability to keep track of how many absentee ballots had been received by the county from voters.

"We didn't know how many ballots we were supposed to put through the process and tabulate," she said. She said she started to raise concerns about DIMS in late spring of last year and told Fell and Huennekens about her concerns.

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POSTED 9:15 AM Wednesday
Day Three opens: King County's Nicole Way takes the stand

Court is in session and Nicole Way is on the stand. She is the mail ballot supervisor for King County.

She has years of experience there, saying she has held almost every job in the absentee ballot office at one time or another.

Republican attorney Harry Korrell is doing the questioning.

Way is on suspension related to an investigation King County is doing into uncounted absentee ballots that were discovered accidentally long after election day.

She is expected to be on the stand for hours.

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POSTED 5:50 PM Tuesday
Day Two closes with no smoking gun

Court has ended for the day.

Testimony by Bill Huennekens, King County's elections superintendent, took up most of the day. There was no drama, and no smoking gun was revealed. It was the first full day of the Republicans' case, and they are slowly trying to build a case to prove the allegations they heralded in their opening statements Monday.

Early in the day, Judge John Bridges ruled that he would allow Republicans to introduce evidence of 875 absentee ballots that King County election officials can't reconcile with a list of people who voted by mail.

That ruling is key to the Republicans' ability to move forward with their circumstantial case showing that ballots were illegally added in some precincts and taken away in others.

Tomorrow, more King County election officials are set to testify. Their testimony could be entered via written transcripts of their depositions, or they could be required to take the stand. Nicole Way, the absentee ballot supervisor who has claimed her bosses knew of a falsified mail-ballot report, is on the witness list for tomorrow.

By late tomorrow, Republican attorney Mark Braden told Bridges, the GOP team may be ready to call its expert witnesses. That will trigger a special hearing where Bridges will decide whether a statistical analysis Republicans want to use is sound science and meets state requirements for expert testimony. The analysis, called proportional deduction, would be used to subtract illegal votes from the candidates' totals, precinct by precinct in proportion to how the candidates fared in each.

Democrats will use the hearing to ask Bridges to exclude that evidence, which would leave Republicans in a tough spot to show that illegal votes by felons and others gave Gregoire her margin of victory.

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POSTED 4:50 PM Tuesday
Cross-examination ends

Kevin Hamilton, a Democratic attorney, has finished his questioning. Assistant Attorney General Jeff Even says he now has a few questions of Bill Huennekens, King County's elections superintendent.

Even represents Secretary of State Sam Reed and is asking Huennekens questions about his background, and the differences between the job he holds now in the state's largest county and his previous position, with the same title, in Mason County.

Republican attorney Rob Maguire will be back up soon for his last round of questions in what will likely be the last action of the day.

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POSTED 4:05 PM Tuesday
Democrats: King County's errors were inevitable

As Democratic attorney Kevin Hamilton questions King County Elections Superintendent Bill Huennekens, Hamilton's goal is to show the county elections staff as dedicated public servants and to portray any errors in the election count as inevitable, given that 300,000 people voted at the county's polling places Nov. 2.

Hamilton: "Is it possible with 300,000 people showing up on one day, being managed by 3,000 poll workers, that everything would work perfectly without any paperwork errors at all?"

Huennekens: "I don't think it's conceivable for it to be absolutely perfect."

Hamilton: "Democracy is sometimes messy?"

Huennekens: "Sure, yeah."

Hamilton: "But you do your best to conduct the administration of the election in a fair and impartial manner?"

Huennekens: "Yes, I believe we do."

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POSTED 3:10 PM Tuesday
Democrats probe felon-voter evidence

Kevin Hamilton, an attorney for the Democrats, is cross-examining King County Elections Superintendent Bill Huennekens. The first thing he did was object to the Republicans' attempt to enter Huennekens' two-volume deposition as evidence along with his live testimony today.

Hamilton said it should be one or the other.

But Judge John Bridges said he'd allow both.

Hamilton began his questioning by asking about felon voters. Trying to show that Republicans don't have adequate information to allege illegal voters, Hamilton asked Huennekens if county officials could say whether any ballot cast by a felon included a vote in the governor's race.

"I don't know if they voted in the governor's race or not, no," said Huennekens.

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POSTED 2:05 PM Tuesday
Republicans go after ballot discrepancies

Court is back in session. Republican attorney Rob Maguire is asking King County Elections Superintendent Bill Huennekens about the county's polling place reconciliation summary. That's a spreadsheet that shows the number of ballots cast in each precinct, including provisional ballots mistakenly put into counting machines. The summary shows any discrepancies between the number of ballots cast and the number of voters recorded as having voted.

Republicans have long talked about problems in King County with "more votes than voters." But the issue is now more important than ever; that's because Republicans are using the discrepancies to argue that in some precincts ballot boxes were stuffed, while in others ballots disappeared.

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POSTED 12:05 PM Tuesday
Huennekens: We don't know exact number of absentee ballots

Republican attorney Rob Maguire asked King County Elections Superintendent Bill Huennekens a series of questions about a mail ballot report. An election official had testified that Huennekens knew it was inaccurate before it was submitted to the county's canvassing board after the election.

Maguire: "Does King County know the true number of absentee ballots returned in the Nov. 2 general election?"

Huennekens: "We physically have them. I don't know that we have an exact number of absentee ballots returned."

Democratic Party attorney Kevin Hamilton continually objected to the line of questioning, saying Huennekens' knowledge of the report was hearsay because he only learned it was false from talking to other staff members.

Bridges allowed most of the questions.

Huennekens and Maguire are terse with their questions and answers.

Court just recessed for lunch until 1:30 p.m.

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POSTED 11:05 AM Tuesday
King County's Huennekens takes the stand

King County Elections Superintendent Bill Huennekens is now on the stand. It is likely the rest of the court day will be taken up by his testimony.

Republican attorney Rob Maguire asked the judge for permission to treat him as a hostile witness.

After objections from King County deputy prosecuting attorney Don Porter, Bridges denied the request.

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POSTED 10:50 AM Tuesday
Chelan auditor testifies for the Republicans

Republican attorney Dale Foreman took Chelan County Auditor Evelyn Arnold through a series of questions about her county's administration of elections. It was all designed to set out a contrast with what King County did.

Arnold described precautions to avoid double voting, mishandled provisional ballots or errors in ballot reconciliation reports.

"If you had reason to believe, as the county auditor, that your votes did not reconcile, would you knowingly send the secretary of state a form that said they did reconcile?" Foreman asked.

Arnold: "No, I would not."

In King County, officials have admitted that after November's election they falsified an absentee-ballot report sent to the state when the numbers did not add up properly.

Arnold is on a task force appointed to look into King County's election problems.

She is now under cross examination by Democratic Party attorney Jenny Durkan. Durkan is pointing out the difference in size - and in the difficulty of counting votes - between Chelan and King counties.

In Chelan County, there are seven polling sites and about 29,000 ballots were counted in the November election.

King County had 540 polling sites and about 900,000 votes cast.

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POSTED 9:50 AM Tuesday
Bridges allows absentee-ballot evidence

Bridges just ruled that Republicans can introduce evidence of the 875 absentee ballots they say cannot be connected to any voter in King County.

Bridges said he doesn't think the allegation is new. There was a reference to the same problem, he said, in state Republican Party Chairman Chris Vance's initial statement filed with the election contest petition.

He said Republicans learned details including the precise number of ballots involved only through depositions of King County officials. And those depositions didn't happen until after the April 15 cutoff for filing allegations of illegal votes.

"I don't believe the claim is new," Bridges said. "It has been there, actually from the beginning of the case."

On the stand now is Chelan County Auditor Evelyn Arnold. Republican attorney Dale Foreman is asking her about ballot tracking, the computer system used by Chelan as well as King County, and the precautions Chelan took to avoid the sorts of problems seen in King County.

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POSTED 9:45 AM Tuesday
Day Two opens

Court is in session for Day Two of the governor's election trial.

Up first will be a debate over whether Republicans can enter evidence of what Democrats call "undisclosed claims." Republicans want to present as evidence King County election records that show workers counted 875 more absentee ballots than there were people recorded as having voted by absentee.The evidence is key to the Republican claim of fraud within the county's election division. Republican attorneys said yesterday that King County's records are evidence that ballots were improperly added in some precincts and "disappeared" from others.

"It cannot be that the election contest statute prohibits litigating the classic ballot box stuffing scenario," Republicans said in a brief filed with Judge John Bridges late yesterday. The claims came after an April 15 court deadline for Republicans to submit a list of all the votes they allege to be illegal.

Democratic party attorney Kevin Hamilton told Bridges that Republicans "raised a number of excuses" for not filing the detailed allegations earlier" but offered nothing to justify letting the evidence in.

Republican attorney Harry Korrell is up now. "It clearly is an issue we pled at the beginning of this case," he said. The numbers were different then, he said, but were based on the best information Republicans had at the time.

"The argument that this is going to change the scope of the trial is simply misleading," Korrell said.

Bridges will likely rule soon on the Democratic motion to exclude the evidence.

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POSTED 5:38 PM Monday
Day One is done

Court has recessed for the day.

The trial resumes at 9 a.m. tomorrow.

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POSTED 4:52 PM Monday
Cross-examining the first witness

Democratic attorney Jenny Durkan is cross-examining Brady. She's asking him about the number of observers and attorneys who watched the initial vote count, and two recounts, after the Nov. 2 election.

She also took him through the Republicans' lists of documents on illegal voters to ask him if he had any evidence that the people in question voted in the governor's race and who they voted for. He did not.

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POSTED 4:24 PM Monday
First Republican witness takes stand

After a very long reading of Sam Reed's deposition, the Republicans' first live witness has taken the stand.

Dan Brady is a Republican political consultant and volunteer for the Rossi campaign. For the past three weeks he organized records related to illegal votes and is on the stand only to explain the index of the records that are stored in the basement of the auditorium.

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POSTED 2:26 PM Monday
A dramatic reading in court

The Republicans are now presenting their case. And it is a little odd to watch.

Rather than have Secretary of State Sam Reed testify, Republican lawyers are reading Reed's deposition, taken before the trial.

Republican attorney Dale Foreman is sitting in the witness box, playing the role of Reed.

Attorney Mark Braden is reading the questions that were asked of Reed.

Foreman is doing something of a dramatic reading, with added inflection.

Earlier, Bridges and the attorneys discussed whether the entire transcripts had to be read in open court or whether Bridges could read the depositions on his own.

He said he will take another deposition home tonight to read. His concern was how to move the trial along at an adequate pace.

"I feel like I'm running in quicksand here," the judge said.

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POSTED 2:26 PM Monday
Bridges' thoughts on fraud claim

Judge Bridges has put off deciding whether Republicans' fraud charges can move forward in the trial. But he may be on his way to another decision that splits the difference between Republicans and Democrats — something he's done before.

Bridges agreed with Democrats that fraud has not been an official part of the Republicans' claim. But he stopped short of excluding the evidence.

That's not unlike what Thomas Ahearne, an attorney for the Secretary of State Sam Reed, said to the judge. He said the debate could be a fight over semantics. The Republicans have raised the issues earlier, Ahearne said, but have not referred to them as fraud.

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POSTED 1:34 PM Monday
Arguing over fraud charges

Court is back in session. Attorneys for both sides are arguing over Republican claims of fraud in King County.

Democratic attorney Kevin Hamilton told Bridges it should not be allowed because the claim was not properly included in the Republicans' earlier filings.

Republican attorney Rob Maguire said there was a mention in the original Republican lawsuit.

Bridges wants to know more. He told Maguire that Republicans should prepare a written response to Democrats' motion to have the fraud charge excluded. That's due tomorrow.

Bridges said he would allow the fraud charge for now "so we can move on." But tomorrow he will rule on whether those key pieces of the Republican claim can continue to be part of this case.

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POSTED 11:52 AM Monday
Secretary of State says case will affect future elections

Assistant Attorney General Jeff Even, representing Secretary of State Sam Reed in the case, said Reed will not advocate on behalf of either Gregoire or Rossi. But he said the state has broader interests because what Chelan County Superior Court Judge John Bridges does will affect future elections.

Bridges adjourned court for lunch. Democratic attorney Jenny Durkan said her side wants to talk about new issues raised by Republicans this morning.

But Bridges made it clear he will not spend the afternoon on "housekeeping" issues and procedural motions.

"I want to get into this case," he told the attorneys.

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POSTED 11:33 AM Monday
Democrats lay out two-part strategy

Judge John Bridges has given each side four days to present its case. When Republicans finish later this week, Democrats will move to have the case dismissed, Democratic attorney Kevin Hamilton said.

If that's not successful, Democrats will present evidence of errors and illegal votes they say helped Rossi. That, they hope, will offset any evidence Republicans present.

Hamilton earlier defended King County's performance in the election, but he said Democrats have found errors there that cost Gregoire votes.

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POSTED 11:33 AM Monday
Democrats cite illegal votes for Rossi

Democrats deposed some of the people Republicans have alleged voted illegally. Attorney Kevin Hamilton said all but one voted for Republican Dino Rossi. And the other voted for Libertarian Ruth Bennett.

He gave one example, referred to only by the initials W.S. He said the person was a convicted felon who conceded his voting rights had not been restored. But he said he voted for Rossi.

Hamilton said he knows Republicans will claim felons can't be trusted to tell the truth. So he showed on a screen in the courtroom copies of W.S.'s Republican National Committee membership card and a thank you letter from President George W. Bush. W.S. also made two donations to Rossi during the campaign.

W.S. lives in a precinct won by Gregoire and by the Republican theory of proportional deduction, his vote would have been counted as a vote for Gregoire, Hamilton said

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POSTED 10:54 AM Monday
Democrats attack fraud allegations

Democratic attorney Kevin Hamilton began the Democrats' opening argument by pointing out the shift in emphasis of the Republican case.

"The centerpiece of petitioners' claim, at least until today, was that felons illegally voted in this election, tipping the balance in Gov. Gregoire's favor," Hamilton said.

He said Republicans are "hedging their bets" by taking a "loose collection of administrative errors'' and calling it fraud.

Democrats will try later to exclude the Republicans' allegations of fraud.

"Fraud is not part of this case and it never has been," he told Bridges. "Obviously there is some desperation seeping into the petitioner's case."

"Every election has irregularities," Hamilton said. "They occur in every county in this state, in every state in this nation. This democracy of ours is not a perfect system and we all recognize that."

Hamilton attacked the Republicans' fraud claim by saying the party has not tried to collect hard evidence of the allegations. He said Republicans have not deposed any polling place inspectors or observers about claims of ballot fraud. Nor have they done an independent count of ballots or envelopes in King County to answer questions about discrepancies in the count.

He said more lawyers than could fit into the auditorium fanned out across the state to observe the vote.

"If someone sneezed they saw it, but not one of them will be called to testify in this trial."

Hamilton talks so fast the court reporter had to ask him to slow down.

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POSTED 10:09 AM Monday
Foreman turns to felons

Approaching 45 minutes into his opening argument, Republican attorney Dale Foreman has turned to felons. He said Republicans will argue that illegal votes by felons should be apportioned by the same percentage the legal vote broke down in any given precincts.

He acknowledged it is not a perfect system but is scientifically based.

"It is the best way known to man to extrapolate and be fair," he said. And Foreman told Bridges that is his job: "To try to do justice in an imperfect world."

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POSTED 9:44 AM Monday
Republicans open with fraud

Republican attorney Dale Foreman is about 15 minutes into his opening statement and hasn't mentioned felons yet. Instead the Republican case is opening with a strong emphasis on fraud within King County's election division.

Foreman outlined King County's problems with keeping track of ballots, but said the facts go beyond mistakes or incompetence.

"The facts we have discovered are even more sinister," Foreman said. "This is a case of election fraud."

At that point Democratic attorney Kevin Hamilton entered the first objection in the case, saying "There is no fraud claim."

Judge Bridges said it is allowed in an opening statement.

Foreman went on: "This is a case of fraud by upper management of King County elections."

He told the judge about testimony from election official Nicole Way about a falsified absentee ballot report, which she told her boss, Garth Fell, about.

Foreman said Republicans will show the "corruption goes farther up the food chain."

"This election was stolen from the legal voters of this state by a bizarre combination of illegal voters and bumbling bureaucrats," Foreman said.

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POSTED 8:54 AM Monday
Day One gets under way

The governor's election trial begins at 9 a.m. in a small auditorium across the street from the Chelan County Courthouse.

Judge John Bridges will hear opening arguments from all sides today.

The Republican's opening will be done by Dale Foreman, a Wenatchee attorney, former state legislator and former state Republican Party chairman.

Democrats' opening will be done by Kevin Hamilton, a Perkins Coie lawyer who is the state party's longtime attorney for election cases.

Secretary of State Sam Reed will get a say, too. Opening arguments for his side will be delivered by Assistant Attorney General Jeff Even.

The attorneys and their assistants have moved in dozens of boxes of documents, computers and rolling shelves full of loose-leaf binders as they settle in for the trial, expected to last nine days.

Early-morning scene

The auditorium is slow to fill up this morning. By 7:30 a.m. there were a few people waiting outside along with the media.

Fredi Simpson, the vice chair of the state Republican Party and the Chelan County chairwoman, was first in line at about 7 a.m.. She's been at all the pre-trial hearings.

Adrian Damish, 72, showed up at about the same time. He's a lifelong Democrat, born in Everett, home he says "of the best president we never had, Scoop Jackson."

He was carrying a Gregoire campaign sign and said he'll be outside the courtroom only for a little while because he is on his way to staff the Democrats' brand new Chelan County headquarters.

"Republicans pulled the crap in Florida and I just hope they don't do it again," Damish said.

Damish's conservative counterpart came from Seattle's Madrona neighborhood. Brian Thomas, 60, is a carpenter and this is his second trip over the mountains to show his support for a new vote in the governor's race.

He was carrying a "Re-vote" sign on a red and white pole, and wore a matching re-vote arm band. He was wearing boots, a cowboy hat, mirrored aviator sunglasses and a black western-style sport coat as he stood quietly on the corner.

"A new vote is the only sensible thing to do," he said.

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David Postman: 360-943-9882 or dpostman@seattletimes.com