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Monday, June 6, 2005 - Page updated at 08:56 a.m. Week Two: Election trial dispatches POSTED 5:35 PM Friday The governor's election trial is over. Judge John Bridges will issue his decision Monday at 9 a.m. The trial ended with Republican attorney Harry Korrell urging the court to set aside the November election. "It simply cannot be that our election contest statute and thus this court is completely impotent to resolve the staggering problems we have seen in this election and it would be supremely unfair to the people of the state of Washington if its largest county can have the most backward election system and result" in off-setting other legal votes, he said. "It is simply impossible to have any confidence that Christine Gregoire won with the largest number of legal votes."
POSTED 5:35 PM Friday Thomas Ahearne, representing Secretary of State Sam Reed, said Reed would not take a position on how the judge should rule. He did offer a strong defense of state election director Nick Handy, who Republicans this week accused of being biased against Republicans because he had written an e-mail saying he wanted to "undermine" some Republican claims. But Ahearne said that Republicans made false claims early this year about military ballots and ballot security around the state, and alleged that ballots that were enhanced for the counting process were done so improperly. ELECTION FIGHT COMES TO COURT After more than four months of pretrial preparation, the lawsuit over Gov. Christine Gregoire's election has come to court. Seattle Times chief political reporter David Postman, who is covering the trial, is filing periodic updates from the Wenatchee auditorium that's doubling as a courtroom. Further reading
Related links Ahearne said Republicans have dropped those claims, which he said shows Handy was right. "He wasn't taking sides with one political party or another," Ahearne said. "He was taking sides with the truth, regardless of what one political party wanted or not." He also defended Reed as a "fair and impartial election administrator." Republican attorney Harry Korrell is giving a brief response before the trial ends.
POSTED 5:10 PM Friday Thomas Ahearne, representing Secretary of State Sam Reed, has begun his closing argument. "One of the things the Republicans and Democrats agree on is that a lot of counties made a lot of mistakes and a lot of mistakes resulted in a lot of illegal votes being counted in the 2004 governor's election," Ahearne said. Some of the mistakes could be rectified, he said. Others could not and remained part of the final count. He said the question before the court is not what any of the parties think is the "fair or right thing to do." "The question is what does our election contest statute as currently written require," he said.
POSTED 5:04 PM Friday Jenny Durkan completed her closing argument on behalf of the Democrats. She said that even if the judge accepts the Republicans' theory of "proportional deduction" for apportioning felon votes, he should be skeptical of their "fuzzy math." The numbers "are puffed and pumped up in order to make the proportional deduction work," she said. Durkan also defended Nicole Way, whose testimony, she said, has been mischaracterized by Republicans. Way testified that she had produced a mail-ballot summary report with an erroneous number representing total absentee ballots returned to the county by voters. Durkan said Way was a nervous witness last week, "like any witness." But she said unlike most witnesses, Way had just been accused by Republicans in their opening statement of being responsible for opening the door to ballot stuffing and stealing in King County. "She didn't know this report was false or wrong or misleading," Durkan said. "She took the best information she had available." "It wasn't the best report ... but it wasn't fraudulent." Durkan also attacked the centerpiece of the Republicans' allegation of fraud: records that supposedly showed absentee ballots had been stuffed in pro-Gregoire precincts and stolen from pro-Rossi precincts in King County. Republicans say the pattern of extra and missing absentee ballots is "sinister." Durkan said a spreadsheet Republicans used to show the discrepancies "is proof of nothing." "Your honor, it is the equivalent of the grassy knoll. Supposedly there is some huge conspiracy," Durkan said. Thomas Ahearne, representing Secretary of State Sam Reed, will address the judge after a brief break. Reed is a named respondent in the case.
POSTED 4:10 PM Friday Democratic attorney Jenny Durkan is attacking allegations of illegal votes based on county voter records. She said the judge has already ruled that those records, called voter "crediting" records, are not proof that someone voted. She said Republicans should have gone through King County's 600,000 or so absentee ballot envelopes to show with certainty how many ballots were cast and by whom. "There is no proof before this court that a single person voted who wasn't supposed to have by absentee" ballot, Durkan said.
POSTED 4:08 PM Friday Jenny Durkan, the Democrats' attorney, attacked the Republican expert witnesses as "human calculators on the stand." "The problem is, they tried to dress it up as science," she said. Durkan said the GOP's proportional analysis is flawed because the experts "assumed that felons voted like their neighbors." In fact, Durkan said, there is no evidence that a single illegal vote was ever cast for Gov. Christine Gregoire. The only evidence showing how felons really voted, she said, are five depositions Democrats took, in which four felons said they voted for Republican candidate Dino Rossi and one swore to voting for Libertarian Ruth Bennett. Durkan said Republicans have asked for "staggering relief. They ask the court to throw out 2.8 million legal, valid votes." She said that while everyone expects the case to be appealed no matter what happens in Bridges' courtroom, "this court may be setting the rules and roadmaps for election contests throughout the state for the future." "This could be the final step and this court's ruling should be written accordingly." Republicans, Durkan said, continue to argue that the judge should "lower the bar, to lessen their burden and to guess at the proof." The election of Governor Gregoire must be affirmed by this court because petitioners have failed to show by clear and convincing evidence that Mr. Rossi actually won the election," she said. "In fact, petitioners have all but conceded they cannot meet that burden. They cannot show that the wrong person was declared duly elected. They cannot show it because Governor Gregoire was properly elected."
POSTED 3:51 PM Friday Democratic attorney Jenny Durkan, in her closing argument, said Republicans have not shown a shred of evidence of fraud in the election. She urged Judge John Bridges to make that clear when he issues his decision in the case Monday. Durkan said Republicans have insinuated fraud purposefully to undermine public confidence in the election.
POSTED 3:45 PM Friday Republican attorney Harry Korrell detailed election errors and problems in King County, saying, "These huge discrepancies, failures and misleading reports are disturbing. "They're disturbing to voters. They're disturbing to petitioners in this case, and with all due respect we submit that they should be disturbing to his and any court that looks at them. "And when you dig into the data deeper it begins to look sinister." Korrell said Washington state's history may not be like Chicago's, with a checkered past of fraudulent elections. "But your honor, election fraud is real whether it is organized or done by individuals. I will agree that most people are honest, including poll workers and election judges and even lawyers and politicians. But some people do steal," Korrell said. King County officials did not follow safeguards to prevent ballot stuffing and, "I think we can be forgiven for thinking something was rotten in King County in this election." Korrell has finished, and Jenny Durkan is beginning her closing argument.
POSTED 3:42 PM Friday POSTED 3:12 PM Friday Republican attorney Harry Korrell said that when Republicans filed their lawsuit in January they believed that errors and illegal votes "likely affected the outcome" of the election. "After five months of discovery we believe we were right," he said. "The results are worse, I think, than anyone could have imagined, and so far it appears there were around 3,000 illegal votes cast in this election. In this, the closest of elections, that is something like 20 times the margin separating the top two candidates." Korrell said "this court can and must conclude" that the errors and illegal votes "appear to have affected the outcome of the election and we are asking the court to set it aside." Korrell said Republicans "can't identify each person that may have been involved in efforts to slide illegal votes into the system," nor can they show who cast ballots in the names of dead people. But he said Democrats' position is that "no matter how glaring the errors and how compelling the evidence, this court has no power to remedy this terrible situation. "We believe this court has both the authority and duty to act and set aside the results of this election."
POSTED 2:46 PM Friday Closing arguments have begun. Harry Korrell goes first for Republicans. He said he expects to take about 30 minutes. POSTED 2:29 PM Friday Republicans asked Thurston County Auditor Kim Wyman a series of questions about how she administers elections to continue drawing parallels with the problems faced by King County. Wyman said Thurston County was able to reconcile mail and absentee ballots after the election. Republican attorney Dale Foreman asked her if she would submit a report to the canvassing board that she knew was not accurate, as Republicans allege happened in King county. Wyman said she would not. "I always want them to know everything that I know so they can make their best judgment," Wyman said. Foreman: "Would you certify an election result that you knew was not accurate?" Wyman: "No." Under cross examination from Democratic attorney Kevin Hamilton, Wyman was asked about felons who allegedly voted in Thurston County in the November election. Wyman said the county is obligated to accept a completed voter registration form if it is correctly filled out and she does not have the authority to reject what appears to be a valid voter registration application. Hamilton asked her about problems in last September's primary election in Thurston County when absentee ballots were mailed late. In addition, in one precinct the wrong candidates were listed on a primary ballot and new ballots had to be mailed. Hamilton: "These are some of the things that can go wrong in the administration of any election when you have humans involved?" Wyman: "Yes." Video played in court Democratic party attorney Kevin Hamilton played a video of state Republican Party Chairman Chris Vance from last November in which Vance says he does not think there is any fraud in King County's election division. He asked Dan Brady about it, but Brady said he never heard the statement. Republican party attorney Rob Maguire objected, saying court rules do not allow the introduction of the video at this point in the trial. The video is from a post-election town hall meeting sponsored by The Seattle Times. Bridges would not allow it as evidence, but said Hamilton could play it. Maguire wanted the judge to watch it in chambers, but after Hamilton pointed out it was already broadcast on TV, the judge allowed it. In the excerpt, Vance says he is intimately knowledgeable about King County election administration and said, "There is no fraud. There is nothing nefarious going on in Washington state." "I've been as close to it as you can be and it's just not true," Vance said in the video. Hamilton then offered the video as evidence again and Bridges allowed it. Maguire then asked Brady, "Do you think Chris Vance has changed his view since Nov. 9?" Brady: "I think he has. . . Many of the problems took time to report."
POSTED 1:26 PM Friday Dan Brady, the Republicans' lead election observer, is under a contentious cross-examination by Democratic attorney Kevin Hamilton. Hamilton began by reminding Brady he was under oath and that as a lawyer has a responsibility as an officer of the court to tell the truth. Hamilton is asking Brady about a state Supreme Court case from a lawsuit filed late last year by GOP candidate Dino Rossi. Brady filed a declaration in that case alleging the sort of ballot security problems he testified about earlier today. The Supreme Court, in rejecting the Republican claim, said that while Republicans alleged impropriety in ballot security they had offered no evidence of that, Hamilton said. He asked Brady if Brady had read that opinion. Brady said no, he knew only that they had lost. Hamilton then asked Brady about a brief filed by the state Republican Party in an earlier lawsuit during the manual recount. He read what Republicans at the time said about King County's plans to have observers watch: "It's hard to imagine a fairer and more meaningful opportunity to observe than the procedure proposed by King County." Brady said he never read that brief and would not necessarily agree with the statement. POSTED 12:34 PM Friday The court has recessed for lunch until 1 p.m. Judge John Bridges said Republicans' testimony about concerns over ballot security is pushing the line of what is allowed during rebuttal. "I would assume that if petitioners felt there were all kinds of problems going on during the process, Mr. Brady would have told us about that in your case in chief," Bridges said, referring to the primary phase of the case in which Republicans laid out their allegations. Dan Brady, the Republicans' lead King County election observer, has been testifying about a lack of observers for key parts of the vote-counting process. He said Republicans were concerned that election workers were able to take book bags and backpacks into some of the work rooms. Democratic attorney Kevin Hamilton had objected to the questioning. While Bridges overruled, he said, "I'm placing this testimony only in the context of rebuttal evidence and nothing to do with the substance part of their case." Rebuttal testimony is supposed to be only in response to testimony offered by the other side. POSTED 12:07 PM Friday Perhaps it comes from retiring several times and being called back to work, or the knowledge that when this trial is over he is back in retirement. But state deputy election director John Pearson is about the most relaxed witness to testify during this two-week trial. Anyone who has been following the disputed election would have to agree, based on Pearson's ongoing cross-examination by Democratic attorney Jenny Durkan. Durkan: "Has election day ended in this case?" Pearson: "No it has not." Durkan: "Is it fair to say the election community are humans?" After a pause, Pearson: "I believe they all are. Yes." Pearson said that in 30 years he's never seen an election official in the state who he did not think was doing as good a job as possible. Pearson is done. Republicans have called Dan Brady as their next rebuttal witness. He was the Republicans' lead observer in the general election and watched the processing and tabulating of ballots. Republicans want to show that observers had difficulty seeing everything that was going on. This is to rebut testimony by King County officials that the process is always open to observers, making it hard for anyone to commit fraud without someone seeing it. POSTED 11:37 AM Friday Deputy state elections director John Pearson, on the stand as a rebuttal witness for Republicans, said that Republican allegations of election fraud and wrongdoing upset members of the "election community" in the state, including himself. "I certainly shared the frustration and frankly the anger," Pearson said. Pearson said specifically that he, as a former military voter, objected to Republican claims that military ballots were not being sent to overseas voters because he knew that was false. He also cited Republican claims that ballot accounting problems indicated fraud, saying, "We knew there were good reasons why those numbers did not balance." POSTED 11:22 AM Friday An exchange during the questioning of deputy state elections director John Pearson brought focus to one of the big remaining questions in the trial. Republican Party attorney Dale Foreman asked Pearson, "Were there election official errors of a significant magnitude" in the election? Democratic Party attorney Jenny Durkan objected, saying that required a legal conclusion that Pearson was not qualified to make. Judge John Bridges agreed with Durkan, telling Foreman, "I think it is a legal question." Foreman tried it again, asking Pearson — based on Pearson's experience, and from what he's heard by sitting through the entire trial — if the errors were "significant in impacting the election results." Durkan objected again and again Bridges sustained. In addition to claiming illegal voters polluted the election results, Republicans say that election errors cost Dino Rossi the election and are reason enough to overturn the November election. Foreman is asking Pearson about a case in a Lincoln County fire district election where the Secretary of State's office backed a call for a new election because of inadvertent error. In that 1992 case, a Lincoln County Superior Court judge ordered a new election because the boundaries of the election district were improperly drawn. Foreman said he had two other examples of courts ordering new votes due to errors without objection from the Secretary of State's office. Foreman wanted to show that the Secretary of State's office has ulterior motives in now opposing a new governor's election based on errors. Republicans say Pearson's boss, state Elections Director Nick Handy, is biased against Republicans and has reversed the office's earlier position. Bridges has sustained objections from Durkan about relevancy, and the judge will not permit any more questions about the Lincoln County case. Thomas Ahearne, representing the Secretary of State's office, said there is no evidence the secretary of state took any position on the Lincoln case and said the secretary of state was not a party to the lawsuit and there was no evidence anyone opposed the new vote in the fire district. POSTED 10:40 AM Friday Republican attorney Dale Foreman is asking deputy state election director John Pearson questions about ballot reconciliation. Yesterday, King County official Linda Sanchez said the county did not investigate precincts where there was a discrepancy of only one ballot or vote and concentrated on bigger problems. Pearson has worked for the Secretary of State's office for 30 years and is considered an expert in election administration, though he is not officially an expert witness. Foreman is showing a slide presentation from the Secretary of State's office that is used to train county election workers. One of the slides says "Every discrepancy should be investigated." Foreman: "Is there any such thing as a threshold or acceptable margin when you are doing a reconciliation?" Pearson: "We have never developed any sort of acceptable margin or deviation from a perfect reconciliation." Entered as evidence: a photo of President Bush Democrats have rested their case. They finished this morning with a list of evidence entered to bolster their claims of illegal votes. That included copies of a photo and thank you note from President George Bush and a membership card from the Republican National Committee. They belong to someone Democrats say is a felon who voted illegally in the election and who said in a deposition that the vote was for Republican Dino Rossi. Democrats want to counter Republican lawyers' arguments that felons may lie about who they voted for. When Democratic attorney Kevin Hamilton told Bridges the documents included a thank you note from Bush, Judge John Bridges said, "To your firm, Mr. Hamilton?" Republicans had no objections. "How can I object to a picture from the president of the United States," said Republican atttorney Dale Foreman. Thomas Ahearne, an attorney for the Secretary of State's office, offered exhibits as evidence and rested the case for the office. Secretary of State Sam Reed is a named respondent in the case. Republicans have recalled John Pearson, the deputy state elections director, as a rebuttal witness. He was on the stand as a witness for the Democrats earlier. POSTED 9:16 AM Friday Court is in session for the final day of the governor's election trial. This morning Democrats will offer more evidence before resting their case. Republicans will then put on a few witnesses for their rebuttal to the Democratic case. After lunch, closing arguments are set to begin. Harry Korrell, of the Davis Wright Tremaine law firm, will make the case for Republicans. Jenny Durkan, a sole practitioner and at one time Gov. Christine Gregoire's personal attorney, will do the same for Democrats. Judge John Bridges said yesterday his ruling will come Monday morning. The courtroom crowd is as sparse as it's been. No final day surge in attendance, except for a small increase in the press section. POSTED 5:15 PM Thursday Court is recessed until 9 a.m. tomorrow. Democrats will rest their case, then Republicans will call rebuttal witnesses and closing arguments will be heard. In trying to set a schedule, Bridges asked the attorneys, "Do you have any self restraint?" He said he'd like the court day to end by 5 p.m. tomorrow. Before court recessed today, Democratic attorney David Burman grilled UW professor Anthony Gill about his latest analysis of illegal votes. Burman said the numbers Gill used were provided by Republican attorney Mark Braden and GOP data analyst Clark Bensen. Gill was told they were illegal and did not do any work on his own to determine how or why that sample was arrived at. Burman: "You didn't do any independent analysis. You took what Mr. Bensen and the attorneys fed you … and you were more than happy to go along with that, weren't you?" Gill said he had time constraints and his task was to analyze the list he had been given. Burman bored in on Gill, reading from the professor's Web site, where he cautions his students to be critical and skeptical of statistics. Burman: "You never considered any alternative to what Mr. Bensen and Mr. Braden fed you, correct?" Gill: "That is correct. I was given a data set to make a simple estimation here. ... I saw that as a basic straightforward calculation." Judge John Bridges then asked Gill a series of questions, saying he was confused by conflicting testimony from Gill and Democratic expert Mark Handcock. He earlier had joked about his difficulty in understanding statistical analysis. "I would run from your class like the wind," Bridges told Gill. "I thought Dr. Handcock attempted to do what you did and his results are totally different." Gill said that could be because the total number of alleged illegal votes is different and that they may have come from different parts of the state that would be apportioned differently. "Ahh, OK," Bridges said.
POSTED 4:57 PM Thursday Republican attorney Mark Braden kept his cross-examination of Democratic expert Mark Handcock brief. Judge John Bridges followed up with a question of his own. Or at least he attempted to get an answer to a question he thought Braden had. Handcock had said the Republican method of apportioning illegal votes is flawed. He said that was because the set of alleged felon voters was biased, having been selected overwhelmingly from Gregoire strongholds. Bridges wanted to know what Handcock would do, though, if a list of illegal votes was determined by the court to be invalid and should not be counted in the election results. Handcock said he would not be comfortable doing an analysis even then, because the set of illegal votes was not a scientifically pure sample. But he said that if directed by the court to do it, he would try his best as a scientist. Democrats are close to resting their case. Because of a scheduling issue Republicans have called one of their rebuttal witnesses before Democrats rest. That witness, UW professor Anthony Gill, was asked by Republicans to do a "proportional deduction" analysis using the latest lists of alleged felon votes from Democrats and Republicans. The lists, though, exclude some categories of improper votes Democrats allege in counties other than King County. Democratic attorney David Burman objected to the evidence, telling Bridges it was misleading and prejudicial and "for some audience other than your honor." Bridges allowed Gill to testify, though Burman continues to raise frequent objections. Gill ran different scenarios using different totals for illegal votes. He said in one case, the analysis reversed the election result, with Rossi ending up the winner by the same 129-vote margin Gregoire had when she was declared the winner. If Gill used a wider sample, including 875 absentee ballots that Republicans allege as illegal votes, he said Rossi's victory margin would grow to 279.
POSTED 4:26 PM Thursday UW professor Mark Handcock is being cross-examined by Republican attorney Mark Braden. And right away Braden asked whether it was possible to use available data on illegal votes to determine who really won the election. Handcock had finished his testimony by saying, "Based on the statistical evidence ... Christine Gregoire won the election." Yesterday, UW professor and Democratic expert Christopher Adolph had said it was impossible to say for certain who won given available data on alleged illegal votes. "Well, who's right — you or the other experts for the Democratic Party?" asked Braden. Handcock: "I think that's a mischaracterization of what professor Adolph said." As he did last week, Braden is grilling Handcock on his credentials, asking about his lack of experience as an expert witness or with political science or election research. Handcock did say in response to a question that he made a campaign donation to Democratic presidential candidate John Kerry.
POSTED 3:40 PM Thursday Mark Handcock, a statistical expert from the University of Washington, was called by Democrats primarily to debunk the Republican theory of using statistical analysis to show how illegal votes by felons and others should be allocated between the candidates. But he is also countering something the Democrats' other expert said yesterday. During cross-examination yesterday, UW professor Christopher Adolph said it was impossible to say whether Gregoire actually got the greatest number of legal votes in the November election. He said as a scientific exercise, given the list of alleged illegal votes, it couldn't be said with certainty. Republicans were heartened by the exchange. Democratic Party attorney David Burman, who has handled the party's expert witnesses, said Adolph did not have all the information he needed to make that conclusion, and he asked Handcock what he thought. Handcock said that using the Republican proportional analysis theory, and looking at different groups of possibly invalid voters, under any scenario Gregoire would remain the winner. POSTED 2:38 PM Thursday Noel Frame, who led the Democrats' effort to research felon voters, is done testifying. On cross-examination, Republican attorney Harry Korell said that of more than 600 felons alleged by Democrats, all but 11 came from precincts where Rossi got at least 54 percent of the vote. Korrell said he wanted to know "what mechanism you used to screen out the felons that were in other precincts when you did your search." That question was ruled out of order. But Frame did explain that Democrats wanted to produce a list to balance the list Republicans produced, which came mostly from Gregoire strongholds. Korrell asked again if Democrats looked only in Rossi precincts. Frame: "Yes, because we understood the strong Gregoire precincts had already been researched quite well." POSTED 2:09 PM Thursday Court is back in session. On the stand is Noel Frame, the woman who headed up the Democrats' search for felon voters. Republicans are trying to block some of the Democrats' alleged felons from being introduced as evidence. GOP attorney Harry Korrell is questioning the accuracy of some of the documentation provided by Democrats. POSTED 12:21 PM Thursday Judge John Bridges said his plan is to give an oral decision in the governor's election lawsuit Monday morning. Democratic Party worker Noel Frame will resume her testimony after lunch. Democrats have one more witness and documents to enter as evidence before resting. Republicans have four or five witnesses for rebuttal. Closing arguments are expected to begin by noon tomorrow. Court is recessed for lunch until 1:30. Right before the break, Republicans objected to the introduction of Democratic evidence relating to 14 alleged felon voters. Democrats say the people voted under known aliases. Republican Party attorney Harry Korell said the records do not clearly show that the person recorded as having voted was actually the felon. Judge John Bridges admitted the evidence. POSTED 12:07 PM Thursday Democrats are trying to show the lengths they went to in double-checking their list of alleged illegal voters. In Pierce County, Democratic Party worker Noel Frame said, the auditor told Democrats they would have to search themselves for the absentee ballot envelopes they needed to show that felons had voted. Democrats recruited volunteers to go through more than 248,000 envelopes to find the 90 or so they needed. Frame said the Democrats alphabetized Pierce County's envelopes as they searched so they could go back and more easily double check. Under brief questioning by Republican attorney Harry Korrell, Frame said Republicans showed their list of alleged illegal voters to Democratic attorneys, as the Democrats had done with Republicans. POSTED 11:41 AM Thursday The Democrats' next witness is Noel Frame. She works for the state Democratic Party and led the Democratic effort to find felon voters. She oversaw a team of about 20 people who, since early April, have been collecting evidence for the trial. Frame said the Democratic team met with a Republican lawyer to go over its list of alleged felon voters and tried to resolve concerns raised about any individuals on the list. She said that after a six-hour meeting last week between Democratic and Republican lawyers, changes were made and Democrats settled on a list of 637 alleged illegal voters that were not disputed. Frame described the process Democrats used to find the illegal voters, including multiple levels of review. They also used a former King County prosecutor as a consultant "to resolve some of the tougher questions" about whether a voter had, in fact, voted illegally. Democrats also got Judge John Bridges to enter as evidence drivers' license records that they used in depositions to match signatures to ballots that King County had rejected and not counted in the election. "It's our position that these ballots should have been counted and would have been counted if not for the election officials' error," Hamilton said. POSTED 11:21 AM Thursday Linda Sanchez, King County's elections operations supervisor, is done on the stand. Democrats are introducing a few exhibits before they call their next witness. POSTED 10:48 AM Thursday Republican attorney Rob Maguire is asking Linda Sanchez, King County's elections operations supervisor, about discrepancies in several King County polling places. She has said that in addition to the sort of administrative errors she talked about earlier, which can create discrepancies in ballot reconciliation, errors also can happen when someone mistakenly puts a provisional ballot or absentee ballot through a counting machine. Maguire pointed out that there were discrepancies in four of the five precincts based at a polling place in the county administration building. Earlier, under questioning from Democratic attorney Kevin Hamilton, Sanchez said that discrepancies can happen when ballots are mixed between multiple precincts based at the same polling place. A voter might receive a ballot from one precinct's batch, but the ballot could then be counted in another precinct. That would create a reconciliation problem. Maguire is asking Sanchez what evidence she has that that sort of crossover voting was responsible for many of the discrepancies. Maguire: "It's fair to say that in most polling places a discrepancy in one precinct is unrelated to a discrepancy in another precinct?" Sanchez: "I'm not sure I'd say that." POSTED 10:00 AM Thursday Democratic attorney Kevin Hamilton is asking Linda Sanchez, King County's elections operations supervisor, about possible explanations for discrepancies between the numbers of ballots cast and voters shown as having voted in November. In the trial, Republicans have focused mostly on a discrepancy in absentee ballots, which they say is evidence of fraud. Hamilton and Sanchez are focusing on votes cast in polling places. Sanchez said there are a number of reasons why a post-election accounting would show more votes cast than voters. Those could include a voter who signed a poll book more than once or submitted a ballot after telling a polling place worker that the ballot was spoiled. She said other errors could result in the opposite, showing more voters than votes. Republican Party attorney Rob Maguire is cross-examining Sanchez. The first thing he did was make clear that Sanchez was not involved in the absentee crediting that is key to the Republican case. Maguire is asking about the process for reconciling polling place votes. Sanchez oversaw that as the head of the county's canvass crew. Sanchez said that if a polling place showed a discrepancy of just one vote or voter no further investigation was done. "We'd love to be perfect," Sanchez said, but the staff concentrated on polling places with larger discrepancies. POSTED 9:25 AM Thursday Court is in session. Democrats plan to rest their case today. After that, Republicans will put on at least half a day of rebuttal, and closing arguments could begin by day's end. As their case winds down, Democrats want Judge John Bridges to exclude testimony from the Republicans' data analyst, Clark Bensen. Bensen is the GOP political consultant and statistician whose testimony last week addressed discrepancies in absentee-ballot reporting. Republicans say those discrepancies are evidence of fraud — ballot stuffing and ballot stealing. They are key evidence in the Republican claim. Democratic Party attorney Kevin Hamilton said before court began that Democrats want all of Bensen's testimony excluded. "It's not helpful and it's not accurate," Hamilton said. On the stand is Linda Sanchez, King County's elections operations supervisor. POSTED 5:15 PM Wednesday Court has recessed for the day. Democrats are expected to rest their case by noon tomorrow. Democrats, Republicans and the Secretary of State's office will then make closing arguments. The trial is scheduled to end Friday. Judge John Bridges has not indicated how quickly he will issue a ruling. Linda Sanchez, King County's elections operations supervisor, was on the stand when court recessed for the day and will continue tomorrow morning at 9 a.m. She's held the job for about four years. She was questioned by Democratic Party attorney Kevin Hamilton. Sanchez supervises the county's canvass crew, a team of about 25 people who reconcile numbers of ballots cast with numbers of voters recorded as having voted. As he has throughout the Democrats' case, Hamilton tried to show that the King County process was carefully watched by party observers and others. Sanchez said that was certainly true for the canvass she oversaw. "This one was the most scrutinized I have ever experienced," Sanchez said. Hamilton also had Sanchez talk about the long days and hard work that poll workers face. "They really are the grassroots people who make our election system work," Sanchez said. POSTED 4:10 PM Wednesday The Democrats' statistical expert testified that it is impossible to know whether Gov. Christine Gregoire actually got the most legal votes in the November election. Republican party attorney Mark Braden asked UW professor Christopher Adolph whether by using figures of illegal votes alleged by both sides it was possible to determine if Gregoire was validly elected. "From the aggregate data , it is impossible to do that," Adolph said. Braden: "As you sit there, we don't know if she got the most legal votes, in your analysis?" Adolph: "As a scientific question, no we do not." Judge John Bridges' unctuous meter just went off. Republican attorney Mark Braden is questioning Democratic expert witness Christopher Adolph. Braden has been sarcastic in asking his questions. And Bridges had to remind Adolph to be more direct in his answers. Members of the audience have been tittering at both men's comments. As Democratic attorney David Burman got up to offer one of his frequent objections to a question from Braden, he accidentally referred to him as "Mr. Bensen," a Republican witness who was on the stand last week. When Braden corrected him Burman said, "I'm sorry, the smirk confused me." v Bridges: "You folks have been so good. If we need to recess and let you gentlemen contemplate the meaning of things in life, we can do that." The attorneys apologized and said they didn't need the time out. POSTED 3:55 PM Wednesday On cross examination, Republican attorney Mark Braden is asking a Democratic expert, UW professor Christopher Adolph, what method he would use to apportion illegal votes since he says the Republican method is flawed. As he did last week, Adolph said one method would be to survey the illegal voters by going to their homes and asking them who they voted for. He acknowledged that that isn't possible with some categories of illegal votes - such as ballots cast at a polling place under the name of a dead person - and that given the high profile of the trial, it would be difficult today to get unbiased answers. He said the survey should have been done earlier in the year. Adolph is a former graduate assistant to Jonathan Katz, a Republican expert and professor at California Institute of Technology. This is the first trial where Adolph has been an expert witness, something that Braden mentioned last week and again today. POSTED 3:20 PM Wednesday Christopher Adolph, a University of Washington professor and expert witness for Democrats, is on the stand being questioned by Democratic party attorney David Burman. Adolph is an assistant professor of political science and on the faculty at the UW's Center for Statistics and the Social Sciences. He is expanding on his testimony last week about what he says are serious flaws in the Republican statistical analysis of illegal votes. Republicans want illegal votes by felons and others in any given precinct apportioned between Rossi and Gregoire by the same percentage as the total vote in that precinct. "This method has no pedigree, no claim to accuracy," Adolph said. Adolph says the Republican's expert report is unreliable because information appeared to be collected mostly from parts of the state that supported Gregoire. "This strikes me as clear circumstantial evidence of systematic sampling," he said. That might not have been intentional, but "it does suggest that any inferences from the petitioners data alone will be biased because of their methods." But he said he used the Republican model to apportion illegal votes alleged by both Democrats and Republicans and says there is "approximately zero chance" that the outcome of the election would change. POSTED 2:54 PM Wednesday King County Elections Director Dean Logan has stepped down, and Democrats have called one of their expert witnesses, Christopher Adolph from the University of Washington. Adolph is critiquing the Republicans' expert testimony on felon voters. POSTED 2:05 PM Wednesday Judge John Bridges pressed King County Elections Director Dean Logan about problems with the county's election administration. Bridges read to Logan a quote from the county's post-election report that said while problems had occurred they were addressed "without compromising the transparency and integrity of the election." Bridges was clearly skeptical about the claim. "I've read maybe a couple thousand pages of deposition testimony and have been here a week and a half, reading and listening to what many of the employees of your department have had to say, including Ms. Way, and I assume you are familiar with her testimony," Bridges said to Logan. Logan said he was familiar with the testimony of Nicole Way, the county's mail-ballot supervisor. Way testified that she and her boss, Garth Fell, had falsified a mail-ballot report when the numbers did not reconcile properly. Bridges said that when he was in the Army there was an expression which, for the purposes of addressing Logan, he would call "taking names and kicking tush." "Is there any sense of urgency in King County about fixing some of these problems?" he asked. Logan: "I can assure you there are steps being taken right now to address those issues." This is the second time Bridges has directly questioned a witness about King County's problems. He asked Way last week whose idea it was to implement a new computer system right before the election. POSTED 1:52 PM Wednesday Court is back in session, and Democratic Party attorney Kevin Hamilton is continuing his questioning of King County Elections Director Dean Logan. King is the only county of 39 in the state that has an appointed, not an elected, chief election official. POSTED 12:15 PM Wednesday The court is in recess for lunch until 1:30 p.m. "You don't appear to be running out of breath," Judge John Bridges told Democratic Party attorney Kevin Hamilton during his lengthy re-direct of King County Elections Director Dean Logan. Hamilton just told the judge that Democrats had hoped to rest their case today, but that tomorrow now looks more likely. The trial is scheduled to run through Friday. Logan, who was on the stand for three hours during the morning session, will complete his testimony after the break. There were a few testy exchanges between him and Republican attorney Rob Maguire, and once Judge John Bridges told Maguire his questions were bordering on being argumentative. Under questioning by Hamilton, Logan talked about polling place workers and said that after this trial it will be more difficult to recruit people, mostly senior citizens, to fill those jobs in future elections. Hamilton also asked Logan if it was possible to have a "completely error-free election." Logan: "It's not something I've seen and I don't think the system necessarily contemplates that. I think it recognizes that it is highly dependent on human interaction and anytime you have that ... there is going to be some margin of human errors." POSTED 11:45 AM Wednesday Republican attorney Rob Maguire is asking King County Elections Director Dean Logan about the role of election observers in the handling of absentee ballots. The ballots are collected by King County staff at a post office near Boeing Field. Logan said obsevers are allowed to watch that process and can follow the county vehicle that picks up the mail there and takes it to a county contractor in Kent, where the mail is sorted. Logan said he couldn't say if any observers did that in the election but said "it is an available spot to observe." Republicans allege that King County election workers fraudulently added absentee ballots in some precincts and removed them from others. Maguire appears to be trying to show there was an opportunity for mishandling ballots without election observers watching. Maguire just finished his cross-examination. Assistant Attorney General Jeff Even, who represents the Secretary of State's office, is asking Logan more about the county's new voter registration computer system. POSTED 11:40 AM Wednesday Republican Party attorney Rob Maguire projected onto a screen excerpts from a report on King County's administration of the 2002 election. He pointed out recommendations on handling provisional ballots - ideas never implemented. Maguire: "You read this report prior to the election, right?" Logan: "Numerous times." Logan said many of the recommendations were followed. But not all of them were because some, he said, were not proper under state law or were found to be too complicated to implement in time for the 2004 election. As to a recommendation that provisional ballots be printed in a different color than regular ballots to avoid mishandling, Logan said that didn't happen because "it would add a layer of complexity and represent a significant change to the election process." He said the more changes that were implemented before the election "the higher the potential for the human error of those dedicated poll workers." POSTED 10:35 AM Wednesday Republican Party attorney Rob Maguire is grilling Logan over all the errors that have been uncovered since the election, asking him to confirm the mistakes. Logan gave the first details about the continuing discovery of uncounted absentee ballots. When Logan gave his deposition in April there had been 93 ballots found by election workers. Logan said three more have been found since then, the latest about two weeks ago. POSTED 10:32 AM Wednesday Democratic attorney Kevin Hamilton concluded his direct examination of King County Elections Director Dean Logan with this exchange about mistakes in the election: Hamilton: "Is there any indication from all of the investigations you have done that either Governor Gregoire or her campaign or Mr. Rossi or his campaign had anything to do with any of those irregularities?" Logan: "No." Hamilton: "Thank you. No further questions, your honor." Now Republican attorney Rob Maguire is cross-examining Logan. It is a different tone. Maguire: "Because a task is complex it isn't OK to make mistakes in that task, is it?" Logan: "I would agree with that." Maguire: "It's not OK to lose ballots, is it?" Logan: "No." Maguire: "It's not OK to lose track of absentee ballots, is it?" Logan: "No." Maguire is now asking Logan about the culture of King County's election division and problems Logan has described. POSTED 9:40 AM Wednesday Democratic attorney Kevin Hamilton got a little chuckle out of King County Elections Director Dean Logan when he asked him, "Why did you take that job?" Logan said he was personally recruited by King County Executive Ron Sims following controversy over mistakes made by the county in the 2002 election. "I believe that with King County being the largest jurisdiction in the state [it] has a significant impact on a statewide basis, and I have always been, I guess, attracted to the challenge of working toward public trust and confidence in the election process," Logan said. "I was given indication that I would have quite a bit of autonomy in terms of approaching the position and addressing issues that existed there." One of the themes in the Democratic case so far has been to use county auditors from outside King County to show that errors happened in their counties as well, and that administering an election in a large county like King is even more complicated. Logan, who has experience with elections in Kitsap County, statewide from his work at the Secretary of State's office and in King County, told Hamilton that the larger the county the more difficult it is to administer an election. "The nature of the election process is reliant on human interaction," Logan said, and the larger the county the more people involved who can make mistakes. Logan is now talking about the county's new voter registration computer system. Last week Judge John Bridges asked Nicole Way, the county's absentee ballot supervisor, whose idea it was to implement a new computer system right before the election. She said it wasn't hers. Way had complained about the system before the election and had e-mailed her boss that it could not keep track of absentee ballots. Bridges' question got a lot of attention from attorneys on both sides. And both sides read meaning into one of his few direct questions of a witness. Hamilton asked Logan to respond to Bridges' question. Logan said the new computer system was recommended by three different committees and panels that reviewed King County's election division after the 2002 election. Logan said that if the computer system, known as DIMS, had not been used the county would not have been able to conduct the election even as well as it did. He said without DIMS, the governor's election trial would be focusing on people who never got absentee ballots "and never had an opportunity to vote." Food yes, halter tops no The county auditorium being used as a courtroom for the governor's election trial has been used as a Chelan County Superior Court courtroom for years. It has a permanent jury box, witness stand and judge's bench. The rules for the public are posted on the front door: "Proper conduct and attire required in courtroom at all times," it says. "Shirts and shoes required. No hats. No halter tops. No tank tops. No shorts. No bandannas. No food or drink. No gum. No beepers or cellular phones. No profanity shall be used or displayed on clothing!" No halter tops have been seen in the courtroom. But Judge Bridges has relaxed the food and drink rule given the long hours and short breaks during the trial day. Yesterday reporters found a Chelan pizza parlor's flyers with lollipops attached distributed through the media section. Unclear whether pizza deliveries are allowed.
POSTED 9:35 AM Wednesday
King County Elections Director Dean Logan is on the stand. He is being questioned by Democratic attorney Kevin Hamilton. Logan is accompanied by Don Porter, senior deputy King County prosecutor. Before taking his current job, Logan was the state elections director, a post now held by Nick Handy, who spent most of yesterday on the stand. Hamilton is starting with questions for Logan about his work for the state, not King County. POSTED 5:00 PM Tuesday Court has recessed for the day. Tomorrow's session will begin at 9 a.m., and King County Elections Director Dean Logan is expected on the stand. POSTED 4:55 PM Tuesday John Pearson, the state's deputy elections director, is being cross-examined by Republican attorney Dale Foreman. Foreman asked him if administrative errors affected the outcome of the governor's election. Pearson said he didn't know how to answer that question. "I think that's what we're here to find out," Pearson said. Pearson went to work for the Secretary of State's office in 1974. He has worked under four secretaries. He retired in July 2004 but was rehired in September to work through the general election. Secretary of State Sam Reed then asked him to stay on until Feb. 1 to deal with post-election issues. He then worked part-time for six weeks, retired again in March, was re-hired again on a one-week basis in April to give a deposition in the election lawsuit and was then called back full-time through the end of the trial. "I should have probably stayed retired," he told Foreman. POSTED 3:50 PM Tuesday Republican attorney Harry Korrell is cross-examining Snohomish County Auditor Bob Terwilliger. As Democrats want to show election errors are common throughout the state, Republicans want to show that other counties took more care than King County. Korrell: "An error is an error regardless of the size of the county, is it not?" Terwilliger: "That's probably true." But it is "probably easier to ascertain the errors'' in counties with thousands of voters as opposed to the nearly 1 million in King County. POSTED 3:48 PM Tuesday Snohomish County Auditor Bob Terwilliger is explaining discrepancies -- which a Democratic attorney called "statistical quirks" -- between the number of votes counted in the election and the number of people shown as having voted. Terwilliger said there are a number of reasons for such discrepancies. One, which he called a "mis-filing exercise," resulted in some voters being shown as having voted in the wrong precincts. Snohomish County election officials use the same computer system King County officials used in the 2004 election. King County had a lot of problems with the system, and last week Nicole Way, the county's absentee ballot supervisor, testified she was concerned even before the election that workers could not track absentee ballots. Snohomish County has more experience and fewer problems with the system. Democratic attorney Kevin Hamilton said, "It's still possible to lose track of absentee ballots after you receive them?" Terwilliger said that because of human error it was still possible. POSTED 2:48 PM Tuesday State Elections Director Nick Handy has finished testifying after about four hours on the stand. The court is in a short recess. POSTED 2:45 PM Tuesday Republican Party attorney Dale Foreman has finished his cross-examination of Nick Handy, the state elections director. The questioning ended with another sharp exchange about whether Handy was neutral in the election lawsuit or biased against Republicans. Handy said that the Secretary of State's office has aggressively opposed some issues promoted by Democrats in the case. He also said that with respect to the case his office has a track record of "taking strong positions and standing by them, sometimes in favor of one party and sometimes in favor of the other." Handy is a Republican, as is his boss, Secretary of State Sam Reed. One of the attorneys representing Reed and Handy, Thomas Ahearne, is now questioning Handy. He's asking about instances when the office opposed Democrats and supported Republicans, including pre-trial issues regarding felon voting and circumstantial evidence, as well as the Democratic motion to have the case dismissed last week. POSTED 2:00 PM Tuesday A contentious cross-examination of state Elections Director Nick Handy continues. Republican attorney Dale Foreman: "Is there anybody at the Secretary of State's office, six months after the election, who knows whether or not Christine Gregoire received the most legal votes?" Handy: "I am of the belief, and the people who work in the election division believe, that the final number that was certified by our office reflects the number of legal votes that were processed in this election, and all the other information about illegal votes and deceased votes are at this time claims. They are claims being asserted by a party in a lawsuit. They have not been established ... Is that helpful?" Foreman: "It's interesting." Foreman asked Handy if he and Dean Logan, the King County elections director, were personal friends. Handy said they are only professional acquaintances. POSTED 1:40 PM Tuesday Court is back in session. Republican attorney Dale Foreman is continuing with his cross-examination of state Elections Director Nick Handy. Foreman is asking about felon voters. Foreman first asked Handy about King County records that showed more absentee ballots counted than voters shown as having voted by absentee ballot. Foreman: "Is there any explanation... other than that somebody stuffed them in the ballot box?" Handy: "I don't know the answer to that question. You should talk to somebody in King County." Handy said there are other possible explanations, such as someone who didn't sign in properly at a polling place. King County Elections Director Dean Logan arrived in the courthouse after the lunch break, accompanied by a county attorney. He is expected to testify late today or tomorrow if the questioning of Handy and his deputy run long. POSTED 12:35 PM Tuesday Republican attorney Dale Foreman is asking state Elections Director Nick Handy about voter crediting and reconciliation of ballots and votes cast. Foreman asked Handy about a memo he sent one of the attorneys representing the Secretary of State's office in the lawsuit. Handy wrote to the attorney, Thomas Ahearne: "I am completely convinced that the reconciliation issue being raised by the Republicans in the litigation is completely unfounded." He wrote that he wanted Ahearne to be "fully aware of my thinking on this." Attached were five documents about the process of voter crediting, in which election workers record whether a voter has cast a ballot in a given election. Under questioning from Foreman, Handy said that it was a mistake to refer to reconciliation, and that the reference should be to voter crediting. Foreman: "So was this another election official error or mistake?" Handy said it was. Foreman then began his most aggressive questioning of Handy. He read from a memo Handy wrote referring to a Republican claim that discrepancies in voter crediting were evidence of a serious problem in the election: "I expect this will be a major issue raised by the Republicans as they have built their entire public affairs campaign ("Every Vote Should Have a Voter") around this theme and have worked it hard. If we can successfully demonstrate that this is an unfounded claim, I would hope that this would severely undermine the confidence of the court in the other R claims." Foreman: "You want to severely undermine the confidence of this honorable court ." Handy: "There are some claims that I believe have been pursued by the Republicans that I do not believe are valid claims." Handy said Republicans were "manipulating information" to undermine public confidence in the election. Earlier, Handy had told Foreman that the Secretary of State's office is neutral in the election lawsuit. Foreman: "You're neutral?" When Handy said again that the office was neutral, Foreman barked, "How can you say that? You are under oath." At that point Democratic Party attorney Jenny Durkan objected, Bridges sustained, and the court broke for lunch until 1:15. POSTED 11:55 AM Tuesday Democratic attorney Jenny Durkan has objected to a series of questions that Dale Foreman, a Republican attorney, is asking state Elections Director Nick Handy. But the judge has overruled her on almost every point and has allowed Handy to answer. Foreman pressed Handy on what would have had to happen in the election for Handy to worry that there was fraud or misconduct by an election official. Handy said he'd be more concerned if he saw a huge swing in vote counts or evidence that someone had an opportunity to manipulate ballots or the count. Foreman asked, "When you're talking about a major discrepancy or a major swing, doesn't that have to be viewed in light of the narrow margin of victory?" Handy agreed, but using words from Foreman's opening statement one week ago, he said the errors he saw were inadvertent, "rather than something that has a deeper, or more sinister, tone to it." POSTED 11:30 AM Tuesday Dale Foreman, a Republican attorney, is pressing state Elections Director Nick Handy about his statement that King County's falsified mail-ballot report was the only serious mistake of the election. He got Handy to agree other mistakes were serious, "but they were inadvertent mistakes." "Is one of your roles to be a cheerleader for the state auditors?" Foreman asked. Handy said no, but said he is proud of the job auditors have done. POSTED 11:25 AM Tuesday
J. Vander Stoep, an attorney and adviser to Dino Rossi, just said during a break that time and again during the election count, Republicans had asked the secretary of state's office to investigate various reports of wrongdoing. "Time after time after time" officials said they had no investigative authority, he said. Vander Stoep said the testimony of Nick Handy, state elections director, appears designed to leave the impression that the secretary of state's office did investigate reports of irregularities and found no evidence of fraud. Earlier, Democratic attorney Jenny Durkan had described several errors by election workers around the state. Handy said all of them appeared to be innocent. Durkan had asked Handy whether certain errors were indicators of fraud. Handy had said no. Handy did volunteer that he thought the most serious mistake of the election was the decision by King County election supervisors to submit a falsified mail-ballot report to the state. The supervisors, Nicole Way and her boss Garth Fell, fabricated one number on the report when a series of numbers didn't reconcile properly. "That was a mistake, that was a serious mistake, and I think that was one of the most serious mistakes made in the election," Handy said. Still, Handy was more positive in his description than his own boss, Secretary of State Sam Reed, had been. Reed earlier called the falisified report "appalling." When Durkan asked him if he agreed with that characterization, he said that's not what he'd say. Instead, Handy said, "What I saw were for the most part inadvertent mistakes and errors by human beings who are working their hearts out to deliver a fair and impartial" election. Durkan has finished questioning Handy. After the break, Republican attorney Dale Foreman will cross-examine him. POSTED 10:25 AM Tuesday Nick Handy, state elections director, is part of the Democrats' attempt to show that errors are a regular part of elections, particularly close elections. Jenny Durkan, a Democratic attorney, asked Handy why the final count in the governor's election, the hand count, would include more votes than the machine count. "Unfortunately, not all the voters in the state of Washington follow the instructions when they prepare their ballot," Handy said. A hand count finds those errors, he said. POSTED 9:55 AM Tuesday Court is in session, and Democrats have called state Elections Director Nick Handy. His deputy, John Pearson, is on the witness list for today, too. King County Elections Director Dean Logan also is expected to testify today as Democrats continue defending the November election of Gov. Christine Gregoire. Under questioning from Democratic attorney Jenny Durkan, Handy is talking about the challenges of implementing a new primary election last year. The move from a "blanket" primary, in which voters can choose candidates from any political party, caused a lot of work for election officials. It also made voters unhappy because they now had to pick a political party and vote only for those candidates in the primary. "After the primary, people were tired and they were exhausted and it took a lot out of all the election officers around the state," Handy said. David Postman: 360-943-9882 or dpostman@seattletimes.com Copyright © 2005 The Seattle Times Company
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Election trial dispatches, week one (5/23-5/27)
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