November 17, 2012

2009 Election Contest Lawsuit Appeal Decision

On Friday, November 16, 2012, the Idaho Supreme Court filed its decision affirming the trial court’s decision in the 2009 Coeur d’Alene election contest lawsuit.  Here is a link to the Supreme Court’s decision.

In response to OpenCdA’s request, appellant Jim Brannon provided this prepared statement.

Thanks to the efforts, diligence, and integrity of Jim and Christine Brannon, Starr and Matt Kelso,  and the many volunteers who donated time, money, and labor beginning November 6, 2009, many flaws in Idaho’s election laws and many failures of duty by city, county, and state public officials have been exposed for public scrutiny.  To the extent those flaws either have been corrected by the election of new officials or legislative action, the election contest lawsuit served to benefit all legal voters in Idaho. 

One issue Brannon raised on appeal was whether Senior District Court Judge Charles Hosack had erred at the trial when Hosack ruled that persons who had registered to vote in Idaho under the provisions of the Uniformed and Overseas Citizens Absent Voting Act (UOCAVA) had been properly and legally allowed to vote in the 2009 Coeur d’Alene municipal election.  Hosack ruled that their votes (the “Canada votes”, though it also implicated voters living outside Canada) should lawfully be counted, that registering under UOCAVA to vote in federal and Idaho state elections simultaneously permitted them to vote in municipal elections.

The Idaho Supreme Court ruled that Hosack erred when he ruled that UOCAVA extends to municipal elections in Idaho.  While the Idaho legislature had explicitly applied the UOCAVA registration procedures to state and county elections conducted under Idaho Code Title 34, it had failed to apply them to municipal elections under Idaho Code Title 50, the law covering municipal elections in 2009.

So what does that ruling mean?  It means that up until Brannon’s attorney Starr Kelso diligently researched the law, the Coeur d’Alene City Clerk and the Kootenai County Clerk had been allowing illegal votes to be cast in Coeur d’Alene municipal elections.   They sent absentee ballots to people who were not legal residents of Coeur d’Alene either in fact or in law (UOCAVA), and they counted ballots which were voted and returned.

It’s fair to ask why Brannon’s attorney Starr Kelso was the first attorney to research and reveal this.  Wasn’t Idaho Secretary of State Ben Ysursa (himself an attorney) supposed to be diligently reviewing election laws to ensure they mesh properly?  After all, he was supposedly responsible for interpreting election laws to the county clerks.  And where was the Idaho Attorney General’s office on this?  How about the Coeur d’Alene City Attorney and the Kootenai County Prosecuting Attorney?  If all these other taxpayer-paid attorneys involved in the review and application of election laws missed what Starr Kelso’s diligent research found, isn’t it likely that other city and county clerks throughout Idaho had been making the same violation for many election cycles just like Coeur d’Alene and Kootenai County?

If I were a legislator, I’d question whether I could rely on interpretations and advice from Ysursa and the Attorney General’s Office.

Fortunately, this gross violation by a plethora of taxpayer-paid attorneys has been corrected in the 2011 election law amendments, but citizens could reasonably wonder what other unexploded legal bombs are lurking in Idaho’s election laws.  Maybe the Idaho Legislature needs to encourage Secretary of State Ysursa and Attorney General Wasden to perform their duties as diligently as Starr Kelso performed his.

I’ve gone into some detail on just this particular issue raised on appeal, because many of Jim Brannon’s detractors have accused him of wasting taxpayer money by pursuing this lawsuit.    Given that it was Brannon’s attorney who uncovered the years of allowing violative  UOCAVA ballots by the Secretary of State, the Attorney General, the Coeur d’Alene City attorney, and the Kootenai County Prosecuting Attorney, perhaps Brannon’s detractors ought to seek to have them replenish the public coffer.

As we noted in our report The Coeur d’Alene, Idaho, Election Contest Lawsuit – 2009-2011, the lawsuit and appeal should have sent a very clear message to the Idaho Legislature that they have work to do.  Jim and Christine Brannon, Starr and Matt Kelso, and a lot of citizen volunteers who want integrity in Idaho’s elections have done their part.  Now it’s up to the Legislature.



  1. I wonder why the Supreme Court didn’t remove the illegal votes from people live and raising their families outside of the U.S.A.? How would those illegal votes affect Council Member Kennedy’s remaining 3-votes?

    Comment by LTR — November 17, 2012 @ 2:09 pm

  2. LTR,

    The Court said that while the UOCAVA voters had been allowed to vote illegally and while they were outside the reach of the Idaho courts, Brannon still had an obligation to prove how they voted. The Court reasoned that it could not assume they voted for one candidate or the other. The only procedure available for compelling a voter to reveal how s/he voted was to get the voter to testify in court so the court could first determine if the voter’s ballot had been cast legally. If the court determined the voter had voted illegally, then the voter (a witness under oath) could be ordered to reveal how s/he voted. If the witness refused to appear in court and give testimony, then there was no way to prove if the vote was legal and if so, order the witness to reveal how s/he voted.

    Comment by Bill — November 17, 2012 @ 2:28 pm

  3. If the higher court said the UOCAVA voters did vote illegally than the 2009 election was flawed and Kootenai County should have been fined.

    I personally gained a lot of knowledge on election laws and their loopholes. I always had assumed that our election officials were doing the right thing but I no longer that naive thanks to all the folks working the case. Thank you to everyone involved. You are my heros! God Bless you all.

    Comment by LTR — November 17, 2012 @ 3:05 pm

  4. LTR,

    Thank you.

    Though it’s probably little consolation to Jim, Starr, and Christine I’ve often told them that their diligent pursuit of the election contest lawsuit probably accomplished more for the voters throughout Idaho than Jim would have been able to accomplish as a councilman.

    The election laws and some of the Idaho Rules of Civil Procedure (as they apply to election contests) have been woefully neglected by elected officials. The Secretary of State is responsible for notifying the Legislature of needed amendments or additions to the statutes, and the various courts and attorneys are responsible for notifying the Idaho Supreme Court, most likely the Civil Rules Advisory Committee, so it can amend or add to the IRCP. Election contests are, thankfully, very rare in Idaho, but when one happens, it ought to be carefully followed and examined by the responsible parties to ensure the governing laws and procedures are as up to date as they can be.

    One of the remarkably disgusting revelations was made by former County Clerk Dan English. Keep in mind that his office, the Kootenai County Clerk’s Office, had been contracting with the City of Coeur d’Alene to administer CdA elections for over 20 years. Yet English admitted that he really didn’t pay much attention to Idaho Code, Title 50, the law governing municipal elections! He should have, because had he actually read and understood the laws he had contractually agreed to administer in the name of his employer, Kootenai County, he might have realized that UOCAVA did not apply to municipal elections. Either he never asked or the deputy county prosecuting attorney representing the Clerk never told him about it, so it’s pretty apparent to me that the Kootenai County Prosecuting Attorney and his deputies were in the dark about the applicable law as well.

    In spite of pitifully and in my view intentionally suppressed news coverage by both area newspapers, the public still learned a great deal about elections and the election contest. The question is, when and if Idaho’s Legislature decides to update the election laws, will the public provide written input to their elected representatives?

    Comment by Bill — November 17, 2012 @ 3:38 pm

  5. Bill, People don’t read in Idaho or pay attention. This case is proof. Our Governor appoints felons to the judicial council.

    Those folks from Canada who voted and their votes stand as legal must be special military agents or something. Crazy ..

    I learned a lot thru this process as well and I sincerely appreciate all of the hard work, involvement, and moral strength it took to endure this mockery of justice.

    It’s over. I predict BAU when Cliff Hayes decides to leave – the judges are already trying to weed him out.


    Comment by Stebbijo — November 17, 2012 @ 5:53 pm

  6. Stebbijo,

    Thanks. We’ll take ’em on one day at a time and one step at a time. There really are a lot of good people here. Just stand next to Bob and both of you look in the mirror …

    Comment by Bill — November 17, 2012 @ 7:27 pm

  7. Bill,

    I agree with your statement “the election contest lawsuit probably accomplished more for the voters throughout Idaho than Jim would have been able to accomplish as a councilman.”

    The State of Idaho and neighboring states have been watching this case as it brought attention to the fact that laws need clarification and amendments. It really is a huge deal.

    I shared my concerns with my family and friends hoping to encourage them to not give up and accept anything less than justice for all.

    Comment by LTR — November 17, 2012 @ 8:30 pm

  8. Bill, how can the high court say that the UOCAVA voters are illegal but that the Brannon team had to prove how they voted, because Starr subpoenaed them but the district court judge–was it Hosack at that time?–wouldn’t compel (force) them to appear in court. Without their testimony, there’s no way to determine how they voted.

    It seems that the Supremes should have cited Hosack for not insisting on testimony, or they should have come up with some remedy for the poor administration of the election.

    What will our illustrious Sec. of State say about the Supremes’ opinion that UOCAVA is not appropriate in Idaho. (The Sec. of State never took the UOCAVA decision to the legislature for their approval, he just decided to implement it on his own. Well, now the top court in the state is saying that was not right. Am I reading that correctly?)

    Comment by mary — November 17, 2012 @ 8:42 pm

  9. LTR,

    Getting discussions going, like the ones you had with your family and friends, is one of the beneficial outcomes of the election contest lawsuit irrespective of the Court’s decision. With all the other stuff that goes on in our lives, election administration is one of those things to which we don’t pay much attention — until an alert and active citizen perceives that something isn’t right and begins to dig deeper.

    In this case, the alert and active citizen was Larry Spencer. That will rankle a lot of people who like to dismiss Larry with somewhat derisive terms like “political gadfly,” but it was Larry’s inquisitiveness that caused him to go into the Kootenai County Elections Office on November 6, 2009, and ask to see the record of absentee ballots that the County Clerk was (and still is) statutorily required to keep pursuant to Idaho Code §34-1011. The Elections Office was unable to produce the record in the form prescribed by law because it didn’t exist. The then-County Clerk hadn’t been keeping it as the law required . Instead, the Elections Office ran the first copy of the now-famous (well, maybe not so famous, but important) Absentee Ballot Report-Kootenai dated 11/06/2009. Larry examined the report and began to see serious irregularities that reasonably and properly caused him to question the legal residency of voters who had received and voted absentee. Turns out, he was right.

    Comment by Bill — November 18, 2012 @ 7:24 am

  10. Mary,

    As far as practicable, the Idaho Rules of Civil Procedure applied in the election contest lawsuit, a civil lawsuit. Those rules provide that subpoenaes for witnesses (as opposed to “parties”) in civil actions can, I believe, only be enforced in Idaho. Hosack refused to issue what he believed was an unenforceable order compelling attendance by people living outside Idaho. He said it was Brannon’s responsibility, not the Court’s, to get his witnesses into court. The Supreme Court upheld Hosack’s position.

    Starr’s position was that when a person living outside Idaho declared himself to be a resident of Coeur d’Alene for purposes of voting in a Coeur d’Alene municipal election, he voluntarily subjected himself to the law in the election contest that allowed the elector to be compelled to testify in court. Here is what the current law in Idaho Code, §34-2017 says. The citation in 2009 may have been different, but the wording is nearly the same if not identical:

    Voters to testify as to qualifications. (a) The court may require any person called as a witness, who voted at such election, to answer touching his qualifications as a voter; and if he was not a qualified voter in the county where he voted, then to answer for whom he voted; and if the witness answer such questions no part of his testimony on that trial shall be used against him in any criminal action.

    This is one of those areas that should but probably won’t be reexamined by the Supreme Court and its committee(s) updating the Idaho Rules of Civil Procedure. They are responsible for fixing the flaws in the IRCP. If this issue is not addressed by the Supreme Court and the Legislature, then it may be possible for anyone to successfully lie on their application for Idaho voter registration and on their application for absentee ballot without any real threat of prosecution.

    It was and is the duty of the Secretary of State to apprise the Legislature of the need for amending or updating election laws to be responsive to the realities of the present. Idaho Secretaries of State Cenarrusa and Ysursa both failed to perform their duties diligently in that regard. The remedy for fixing bad and outdated laws rests solely with the Idaho Legislature, but the impetus to do it usually comes from the Secretary of State.

    The Supreme Court ruled that registering to vote pursuant to UOCAVA applies to federal and state elections, not municipal elections. If the Legislature wants to make it apply to municipal elections, it can by amending the law. My fear is that the Legislature will take the easy way out and do just that without acknowleding the 800-pound gorilla in the room: When is a person really a resident for voting purposes?

    The good news is that in spite of efforts by local and regional skewspapers to suppress detailed information about the Coeur d’Alene election contest lawsuit, the internet has given us the ability to bypass them and go directly to other concerned citizens in other counties. We’ve learned that concerned and active citizens in other counties may in fact know more about the shenanigans in Kootenai County and Coeur d’Alene than the citizens here know.

    Comment by Bill — November 18, 2012 @ 8:02 am

  11. Thank you Larry Spencer following up on your “gut feeling” otherwise all of us would have stayed blinded.

    I was curious about one Canadian resident and researched the informaton. She married a Canadian, raised her family in Canada, and had a business in Canada. However, she used her parents Coeur d’Alene address as hers. I don’t believe anyone would feeling comfortable with the fact that someone who does not invest their time in a community should be allowed to vote locally.

    Comment by LTR — November 18, 2012 @ 8:14 am

  12. LTR,

    Your last sentence may be the underlying reason why the Idaho Legislature of a bygone era put municipal elections in Title 50 and state elections in Title 34. I believe they recognized and intended exactly what you said very well: that voting on local issues should be restricted to voters who invest their time and actually live in a community. Though this wasn’t explicitly stated in the Supreme Court’s decision, it may well have been the Justices’ interpretation as well.

    One of the US citizens living in Canada and voting in CdA’s election from there testified in the trial via Skype (thank you Matt Kelso!) that she is a “landed immigrant.” That is an older term for the new term “Permanent Resident.” To achieve that “Permanent Resident” status which confers additional Canadian benefits but not voting privileges, the applicant must submit an application to Citizenship and Immigration Canada in which s/he formally declares that s/he permanently resides in Canada. One might wonder how a person can declare herself to be a permanent resident of Canada while simultaneously claiming to reside in Coeur d’Alene, Idaho, USA? Possibly if we had the time and money, we could have worked through the US Department of State to have Citizenship and Immigration Canada provide documentation of other PRs in Canada who declared they were simultaneously residents of Coeur d’Alene, Idaho, USA. Even with such documentation, though, the Court would not have compelled the person to appear in Court to testify how s/he voted.

    Comment by Bill — November 18, 2012 @ 8:20 am

  13. Nice loophole the Supremes found so they would not have to require testimony. The judges in Idaho do whatever they want. Everyone knows that. In this case they did not want to require testimony from those Canandian “non city” folks. Even if those Candadians ignored their order, it at least would let me know that our judges care to some extent about the integrity of our elections.

    I am been fairly ticked off about this decision for the last three days – can’t even write or talk straight. I need a constructive way to handle their crock of crap.

    So, I think writing the Idaho Rules of Civil Procedure Judicial Committee is a good idea. I think they should get hundreds of letters from us. They now accept our input – used to be that we were not even worthy of that participation. According to the most recent info – Kenneth Howard is on that committee. Isn’t he from Coeur d’Alene, Idaho? Idaho Supreme Court Justice Warren Jones is the chair. We can send our general comments to:

    Idaho Supreme Court
    Attn: Patricia Tobias
    Administrative Director of the Courts
    PO Box 83720
    Boise, ID 83720-0101

    Larry Spencer is a go getter – however, he’s been quiet for awhile. It’s just not right. I need some good verbiage for my letter – help!!!

    Comment by Stebbijo — November 18, 2012 @ 9:08 am

  14. It always works in someone’s favor if they can find something that is not there. Here it says “as far as practicable.” But there is nothing in the rules to ‘compel’ the judges to get off their duffs and do something right. They were just lazy. Our Supreme Court served special interests but it did not serve the people. They are a complete failure – all five of them. It took them two months to figure a way out of this one. This is a perfect example of how our Rules trump the law and the Court and their appointees do their own magic with their chosen few while they ignore the law. Our legislators are basically worthless. The Supreme Court is at fault for their own omission that they used in their favor.

    I can take most of the other bull they wrote but I can’t swallow this garbage.

    Here is what the decision says:

    The district court was bound under I.C. § 34-2013 to follow the Idaho Rules of Civil
    Procedure as far as practicable. There is no rule of civil procedure that would require the district
    court to provide subpoenas to out-of-state non-party witnesses. Therefore, we hold that the
    district court did not err when it denied Brannon’s motion to compel non-city residents to testify
    at trial.

    Comment by Stebbijo — November 18, 2012 @ 9:54 am

  15. One more post and then I am done. It really does not matter what the law is – our judges do whatever they want to do. They pick at the people’s work like vultures on a carcass and ignore our legislation that they probably wrote.

    34-2013. PROCEDURE IN GENERAL. The proceedings shall be held according to the Idaho Rules of Civil Procedure so far as practicable, but shall be under the control and direction of the court, which shall have all the powers necessary to the right hearing and determination of the matter; to compel the attendance of witnesses, swear them and direct their examination; to punish for contempt in its presence or by disobedience to its lawful mandate; to adjourn from day to day; to make any order concerning immediate costs, and to enforce its orders by attachment. It shall be governed by the rules of law and evidence applicable to the case.

    Comment by Stebbijo — November 18, 2012 @ 10:13 am

  16. Stebbijo,

    Thanks for the comments. But unless the Court and the Legislature really want to try and update the applicable rules and laws, it won’t happen. My fear is that they will simply say that (1) this was a Corrupt d’Alene problem and (2) it was a one-off that happens so infrequently that we (the Legislature) don’t want to make it any easier for people to raise uncomfortable questions about elected officials’ performance. status quo corruptus

    There was one and only one notable exception when I talk about the Legislature: Kathy Sims. She was not elected to the House until after the election contest had been filed. Yet as a private citizen, she attended every hearing and every session of the trial. She was also instrumental in giving huge support and encouragement to the citizens who were trying to unravel the badly SNAFU’d 2009 City election administration. There were no sitting legislators — not one — who attended any of the hearings or trial sessions. In last year’s session of the Legislature, Rep. Sims was on the State Affairs Committee. With the knowledge she acquired as a result of paying close attention to the election contest lawsuit, she was able to convince fellow Committee members to reject some really bad laws proposed by Secretary of State Benito Ysursa, Rep. Susan Chew, and Rep. Jim Rusche. In my opinion, if those pieces of legislation had become law, they would have seriously further jeopardized the integrity of election administration in Idaho.

    Comment by Bill — November 18, 2012 @ 10:24 am

  17. That is why I voted for Kathy Sims and it was because she represents the people and does not buy into the Legislative high school club. She makes every effort to understand the process by showing up that some people actually hold against her. The rest cower in their offices and dream up pretty rhetoric to appease the people when we are not happy instead of actually doing something. They run to their favorite media source/mouthpiece.

    I was disappointed that we did not hear more of an outcry from other elected officials and that is because they are passive. They do not want to upset the real power and that is our judicial branch which is nothing but a runaway freight train. They have to much to lose by upsetting their next door neighbor who is a judge or their next case on the docket.

    I am glad that Kathy Sims caught their attempt to fix their wrong with more wrong. It’s how it’s done and I am sure she knows how it works, she has lived here long enough to know.

    You are right – I do not think anything will be done either at the legislative level. They have no power anyway when they make laws that the judicial branch tears apart or refuses to recognize.

    Kathy Sims needs to get her nose into those judicial committees – and so does Goedde. I really would like to see a letter drafted of some sort to the civil rules advisory judicial committee. It’t not like their chair Hon. Supreme Court Justice Warren Jones did not know it was coming.

    A legislator can recommend people to these committees. She can approach the Supreme Court with a request of that nature. The people need to be more involved, not just a few good buddies chosen by the judge(s).

    Get Larry Spencer in the door or Mary – anyone who has the backbone to ask the questions and take the heat. Lay people can participate. I wonder if they have done anything this last year? I guess it’s time to start requesting those damn minutes again that take over 2 months to go public. I am so sick of this crap.

    Comment by Stebbijo — November 18, 2012 @ 11:50 am

  18. The judicial branch actually published their last minutes of the civil rules advisory committee.

    Here is there last one available.

    They actually do that now – which is a good thing.

    Also, there is a new judicial committee. It is called the Advancing Justice Committee. I have no idea what they do, but I am going to find out.

    Comment by Stebbijo — November 18, 2012 @ 12:50 pm

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