WHY
THE ELECTION CONTEST WAS FILED
The possibility that an election contest was
necessary arose because City Clerk Weathers and independent contractor Kootenai
County did not keep the absentee ballot record required by I. C. § 50-451 as of
the close of the polls[1]
and, as a result of this failure, did not compare it to the number of absentee
ballots in the ballot box prior to the counting of the absentee ballots.
I.C. § 50-451 is set
forth in plain, usual and ordinary
wording. It requires the City Clerk to:
1. Keep
a record in his office containing a list of names and precinct numbers of
electors
making applications for absentee electors’ ballots;
2. Keep
a record listing the date on which the application was made;
3. Keep
a record listing the date on which the absentee ballot was returned;
4. Make
a note on the kept record:
a. If an absentee ballot is not returned;
b. If an absentee ballot is rejected and not
counted.[2]
Weathers testified that
she relied upon Kootenai County representatives Dan English and Deedie Beard to
keep this record but at no time did she ask to see this record which is
necessary to verify that the number of absentee ballots in the absentee ballot
precinct ballot box match the number that were returned and not rejected.
English and Beard did not keep a printed ‘hard copy’ of the absentee ballot
record separate from the Secretary of State’s statewide data base.
No absentee ballot
record was kept as of the close of the polls and thus no one verified, or attempted to verify, that
the number of ballots in the absentee ballot box for the absentee ballot
precinct 0073 matched the number of absentee ballots that had been returned
and, most importantly, not rejected (voided).[3] [4] It
was simply presumed that the number of absentee ballots in the ballot box equaled
the number of absentee ballots returned and not rejected. All of the absentee ballots in the absentee ballot box were merely
taken from the box and run through the ballot counting machines. The absentee
ballot count totaled 2051. Based upon the total ballots counted it was reported
that Kennedy received 5 more votes than Brannon in the race for Seat 2.
When absentee ballots
are returned to the election office each one is recorded and recorded to a
software database provided by the Secretary of State.[5] Beard testified that, at that end of each
day, all of the recorded returned absentee ballots were placed into the ballot
box.[6]
The morning after the
election the machine counted number of
absentee ballots, 2051, was inserted into the “District Canvass,” and it was printed
it at 9:58 a.m. Beard did not recall who prepared the “District Canvass” but
she did testify that the daily totals of absentee ballots returned were not
added up or compared with the machine count. She also testified that the
machine count was not compared with any number totals.[7] [8]
On November 6, 2009,
Larry Spencer presented a public records request to the election office to
obtain a list of the names of absentee voters whose ballots had been returned
by 8:00 p.m. on election day.[9] [10]
Susan Smith had been an election clerk for over ten years and one of her
primary duties was the recording of absentee ballot information into the
database. Smith complied with Spencer’s request and printed off the absentee
ballot record from the database into which all returned absentee ballots are
input, including rejected absentee ballots.[11]
Smith gave him a public
record documenting all of the names of absentee ballot voters who returned
their ballots by the close of the election. The public record absentee ballot
record, Plaintiff’s Exhibit 5, recorded all the information required by I.C. §
50-451:
1.
The name and precinct number of each elector applying for an absentee
ballot;
2.
The date the application was made;
3.
The date the elector’s absentee ballot was returned;
4.
Whether the absentee ballot was rejected and should not be counted.
The
database also breaks the returned absentee ballots into totals. It documented:
1.
Total Requested: 2047
2.
Total Issued: 2047
3.
Total Returned: 2047
4.
Total Voided: 5
On
November 9, 2009, the Coeur d’Alene’s
City Council met for what it purported was a canvass. The meeting minutes
document that the council asked no questions of the presenters Weathers, Beard,
and English, that no testimony was given, and that no documents other than the
“District Canvass” prepared by the election office the morning of November 4, 2009 and the summary
signed by Beard of November 9, 2009, were presented to the city council.[13] [14] [15]
The actual “canvass” consisted of merely a motion being made to “accept the
canvass of votes [by the county].”[16]
After
Spencer realized that despite the 9 absentee ballot difference the ‘count’ of
2051 absentee ballots had been presented to the city council, he sent an e-mail
to Kootenai County Prosecutor, Barry McHugh on November 16, 2009 at 2:42 p.m.[17] Spencer
informed McHugh that the “Election Canvass” documented that 9 more absentee
ballots were counted than should have been. Late that same afternoon,
approximately two hours later, McHugh replied to Spencer’s e-mail. McHugh asked
Spencer if he had talked to the “folks” at the election office, if he had
spoken to them; was there a problem, and he stated that if there was a problem
he would be happy to follow up with the election office.[18]
The
next morning at 8:53 a.m., McHugh sent an e-mail to Spencer.[19]
Overnight he had a change of heart.[20]
In the e-mail McHugh told Spencer:
“After reviewing the matter further,
it appears that the appropriate thing for me to do is
to indicate that there is a method
in Idaho Code for you to contest an election. While I
can’t provide you legal advice, I would
suggest you look at Chapter 20 of title 34, Idaho
Code. In the event such a contest
was filed, my office is responsible for representing the
Elections Office in the contested
matter. Still, in that capacity I will review any
information you provide me on this
question.”
In
short the message from McHugh to Spencer was, go away or file an election
contest.
defending the election office, if an election contest was filed, and any information he received
would be used for that purpose.[21] An
election contest is not something that would be favorably discussed in a
seminar on how to make friends and influence people in high places and no doubt
McHugh believed that this would put an end to the issue raised by the
discrepancy.
When no one will address
a discovered ballot and vote count discrepancy sufficient to change the result
of an election, conscientious citizens are left with no choice but to file an
election contest.
[1] Tr. p. 667, l. 24-25, p. 668, l.
1-12.
[2]
The
absentee ballot record requirement set forth in 4 (a) and 4 (b) that this
information “shall” be noted in the record clearly establishes that the
district court’s holding that “The record contemplated by Section 34-1101 turns
out to be the stack of 2,050 absentee return envelopes” R. p. 2290 is clearly
erroneous. Additionally since Plaintiff Brannon established that the November
6, 2009 absentee ballot record documented 9 fewer returned and not rejected
absentee ballots than were counted the burden shifted to Respondents to
introduce the envelopes if they felt they were evidence of anything. They did
not. In fact no witness even suggested that the envelopes constituted the
required absentee ballot record.
[4] See Plf. Exhibit 5, p. 175 “Total
Voided”.
[5] Plf. Exhibit 90, p. 1, para. 3.
[6] Tr. p. 624, l. 15-25.
[7] Tr. p. 670, l. 6-14.
[8]Tr. p. 670, l. 23-25, p. 671, l.
1-18.
[9] Tr. p. 320, l. 2-5.
[10] Tr. p. 192, l. 10-14.
[11] Plf. Exhibit 90, p. 1, para. 3.
[12] The following information was not
known until trial and is provided here to show what the City’s independent
contractor knew.
a.
Smith testified what occurred after she gave Spencer the absentee ballot
record documenting 9 more absentee ballots were counted than should have been.
She stated that after she gave Spencer the absentee ballot record that she had
a “discussion with someone about this [the fact that the absentee ballot record
documented that 9 more absentee ballots were counted than should have been].
Tr. p. 294, l. 20-25. She testified that
she told her supervisor, Beard, that she printed off the absentee ballot record
for Spencer but she could not recall if she told Beard that it documented 9 more
absentee ballots were counted than should have been. Tr. p. 293, l. 2-13.
b.
Beard testified that she was aware of the 9 vote difference between the
‘count’ and the absentee ballot record. She stated that she could not recall if
she knew this before or after the City council met on November 9, 2009. Tr.
p. 669, l. 1-15. This may have been due to the fact that her
computer had been “cleaned” of all information before trial. Tr. p. 419, l. 19-25, p. 420, l. 1-2.
c.
English testified that he knew about the 9 vote difference between the
‘count’ and the absentee ballot record “on or about” the day the City council
met. Tr. p. 137, l. 20-22.
[13] Plf. Exhibit 87.
[14] Plf. Exhibit 85.
[15] Plf. Exhibit 86.
[16] Plf. Exhibit 86.
[17] Plf. Exhibit 47.
[18] Plf. Exhibit 47.
[19] Plf. Exhibit 47.
[20] It seems that McHugh’s change of
heart came as a result of a second absentee ballot report (Plf. Exhibit 8 A)
that was, unbeknownst to Spencer, printed on that same day, November 16th.
The same county clerk, Smith, testified that that she printed this record but
that she could not recall “if it was a request by a patron or a request by a
supervisor.” Tr. p. 306. This November
16th absentee ballot record documents, consistent with testimony
that absentee ballots returned after the election are recorded as rejected
(Voided), that 2042 absentee ballots were returned for the election that were
not rejected (Voided). Plf. Exhibit 8 A.
[21] McHugh’s decision to defend the
election office was no doubt due to the county’s liability under its contract
with the city to pay for the cost of a new election. Def. Exihibit B, p. 3,
para. 5 and 6.
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Excellent!
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