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“Residency” for voting purposes is possibly the most important issue in the election contest lawsuit filed by Jim Brannon. For months now Team Kennedy has been arguing that persons who reside outside Coeur d’Alene, even outside Kootenai County, even outside Idaho were in fact residents of Coeur d’Alene and therefore entitled to vote in the contested November 3, 2009, City election.
But in an August 23, 2010, public record court filing, Team Kennedy now admits it was wrong. Read on.
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Idaho Code 34-107 (1) and (2) explain residence and how it is determined thus:
(1) “Residence,” for voting purposes, shall be the principal or primary home or place of abode of a person. Principal or primary home or place of abode is that home or place in which his habitation is fixed and to which a person, whenever he is absent, has the present intention of returning after a departure or absence therefrom, regardless of the duration of absence.
(2) In determining what is a principal or primary place of abode of a person the following circumstances relating to such person may be taken into account: business pursuits, employment, income sources, residence for income or other tax pursuits, residence of parents, spouse, and children, if any, leaseholds, situs of personal and real property, situs of residence for which the exemption in section 63-602G, Idaho Code, is filed, and motor vehicle registration.
Idaho Code 50-402(d) also defines residence.
Kennedy’s admission Brannon has been right in asserting many non-residents were improperly allowed to vote in the Coeur d’Alene City election on November 3, 2009, comes on page 3 of Kennedy’s MEMORANDUM OF DEFENDANT KENNEDY IN RESPONSE TO PLAINTIFF’S MOTION TO REFUSE THE APPLICATION OF DEFENDANT KENNEDY FOR SUMMARY JUDGMENT PURSUANT TO IRCP RULE 56(f). The relevant paragraph there reads:
There are no facts in the record to support anything in plaintiff’s motion. It is hardly surprising that out-of-state residents after initially replying to questions from a private investigator, decided that they did [sic] want to become involved in a city council election of no importance to them nor in a trial that might require them to travel hundreds or thousands of miles at their own expense. [Note: Emphasis added.]
The entire memorandum is linked here to provide context.
Team Kennedy now admits that “out-of-state residents” received Coeur d’Alene City election absentee ballots with the blessing of Kootenai County Clerk Dan English and Secretary of State Ben Ysursa and Chief Deputy Secretary of State Tim Hurst. Team Kennedy admits the unlawfully voted ballots were counted by Kootenai County Clerk Dan English who was working under contract for Coeur d’Alene City and its Clerk, Susan Weathers. Team Kennedy even admits that these people voted in a “city council election of no importance to them.” Team Kennedy suggests these “out- of-state residents” who voted in an election of no importance to them should be spared any financial hardship to testify in plaintiff Brannon’s lawsuit in Coeur d’Alene.
The admission by Team Kennedy in the August 23, 2010, memorandum confirms the validity of Jim Brannon’s allegations. It ought to cause Kootenai County residents and Idaho legislators to ask why both Secretary of State Ben Ysursa and Kootenai County Clerk Dan English have been pushing so hard to make it easier for “out-of-state residents” to vote by mail in Idaho elections. It ought to cause people to wonder why the Coeur d’Alene Mayor and City Council, acting as the election canvassing board, were so eager to “rubber stamp” the results of the November 3, 2009, Coeur d’Alene City election. It ought to help people now understand the obvious: The Mayor and City Council, along with the Coeur d’Alene City Clerk and the Kootenai County Clerk, do not want Kootenai County voters to have access to the information that reveals just how badly the City and County administered the November 3, 2009, Coeur d’Alene City election. Voters viewing the information may well begin to ask not only if the election was administered competently but also if it was administered honestly.
On Tuesday, August 31, 2010, there will be a hearing in Senior District Judge Charles Hosack’s court in Kootenai County. Team Kennedy is alleging that it is entitled to be awarded summary judgment in the election contest lawsuit filed by Jim Brannon over the November 3, 2009, Coeur d’Alene City election. Given the admission by Team Kennedy that Brannon has been right all along about votes from “out-of-state residents” having been counted in the election, Judge Hosack could properly rule that at the very least, Brannon’s lawsuit should go forward to trial.
All of the facts of this election should come out at trial so the voters in Coeur d’Alene and Kootenai County can decide for themselves if our elections are being run competently and honestly. Do Idahoans really want to allow “out-of-state residents” to vote in Idaho elections? Apparently Team Kennedy, Secretary of State Ben Ysursa, Chief Deputy Secretary of State Tim Hurst, and Kootenai County Clerk Dan English do.
It’s much easier to win a court case when the opposition makes your case for you. Thanks, Scott!
Comment by Dan — August 29, 2010 @ 12:13 pm
Thanks Bill, I just had a sneaky suspicion that something was going on in town. Your $100k is in the mail.
I sure don’t know much about the law, having just a few business law courses under my belt but is this admission from Team Kennedy a deal killer for them in the eyes of the court with regards to the whole enchilada, (as it seems this is the backbone of their case that the votes were legal and certifiable)or are these statements just legal positioning and gobbly-gook to be seen by the court as simple dialog.
Could this admission carry on over and beyond the summary judgment motion of Team Kennedy and have it be brought into the trail?
Comment by Ancientemplar — August 29, 2010 @ 12:41 pm
Ancientemplar,
It’s hard to know how much weight Judge Hosack will give Team Kennedy’s admission that out-of-state residents were allowed to vote in the election. The term “out-of-state residents” is clear and unambiguous. It refers to people whose place of residence is not inside the state of Idaho. That out-of-state residence disqualifies them from voting in any Idaho elections.
Comment by Bill — August 29, 2010 @ 12:56 pm
It just seems odd that Team Kennedy would be aware that “out-of-state residents” voted in the election but not have a care in the world that illegal votes were cast, and the election was run inappropriately. Wouldn’t, shouldn’t, a person, supposedly interested in the public’s good, be more concerned about a flawed election process and correcting those flaws than holding onto his ‘seat’?
Comment by Happy Trails — August 29, 2010 @ 4:57 pm
You forget, Happy Trails, that Kennedy and his crew are only interested in keeping the current status quo on the city council in CdA. They have a head-nodding, unanimous council that does not ask pesky, probing questions about spending the taxpayers’ money; they all just good-naturedly joke around and then vote in unison.
There are very big projects coming up this next year: The Education Corridor and McEuen Field, to name two. These are massively important to the power brokers in town and they want their “team” on the council to shoe it all in.
That, in my humble opinion, is why Team Kennedy doesn’t care about honest election integrity. He wants to keep his day job.
Comment by mary — August 29, 2010 @ 5:58 pm
By the way, for those who don’t understand the use of the term [sic], which I didn’t know until recently, it means that the quote or phrase it is next to is actually the way the original author wrote it. So, if a quote looks like a mistake, but the person quoting it puts [sic], it means that it’s not an error, that’s how it was written in the first place.
So, in this context, Attorney Scott Reed actually wrote that:
Comment by mary — August 29, 2010 @ 6:04 pm
what time is the hearing on Tuesday?
Comment by Ancientemplar — August 29, 2010 @ 6:46 pm
This whole case is just flat juicy and even more so with that ridiculous frivolous attempt to malign Bill with a contempt of court charge – makes it juicer (Reed is not the judge – he can’t issue contempt of court citations – it’s an abuse of the law). Team Kennedy is seriously “frightened” stooping to that smokescreen. With any justice at all there will be some real contempt of court charges – ‘lest there will be a few of those “out- of-state residents” that will forever remain OUT OF STATE or maybe in jail? Gee, if I were in their shoes I would be testifying voluntarily while there was a chance to do so.
It is obvious to me that gross negligence and malconduct have occurred in this election. It is obvious to me that our SOS is playing dumb and stupid to cover up this god forsaken mess. That is how it works in Idaho – getting off by admitting one is an IGNORAMUS. Kennedy’s whole case rests on what the SOS says “appears” to be legal – all those votes from Canada and California not to mention that ineligible voter disinterest! LOL.
Now,watch for this thread to be picked up pronto (tomorrow sometime) through phone, tweet, or email by all of those conspiracy theory haters. LOL again.
Comment by Stebbijo — August 29, 2010 @ 7:02 pm
Mary,
Thanks for that clarification. Kennedy is represented by two attorneys, Scott Reed and Peter Erbland. It must be assumed that as professional, ethical advocates they prepare their writings carefully and precisely to avoid misleading the Court and other counsel. It should also be assumed they allow their client (Kennedy) to review and correct any documents if at all possible before they are filed with the Court. Thus, we can reasonably conclude the words in the filing were the words Team Kennedy intended to use.
Comment by Bill — August 29, 2010 @ 7:29 pm
Ancientemplar,
Tuesday’s hearing is at 3 p.m. in Courtroom 2 of the Old Courthouse, Judge Hosack presiding.
Comment by Bill — August 29, 2010 @ 7:32 pm
Assume away, but it’s obvious to me that Team Kennedy is phoning this one in. They always have been. The Good Ol’ Boy system would have kept this out of court in the old days. That fact that it hasn’t, and that the case has gone this far, has to seriously frighten a lot of the insider cabal.
Good.
Comment by Dan — August 29, 2010 @ 7:46 pm
Kind of blows your mind, doesn’t it??
Why would they make this (damaging) admission?
Comment by rochereau — August 30, 2010 @ 8:52 am
possibly to avoid jail time?
Comment by concerned citizen — August 30, 2010 @ 11:42 am
Jail time? It doesn’t sound like malfeasance,just plain laziness, poor management and stupidity in the clerk’s office with no oversight by the city or county. I don’t see anyone going to jail but I can sure tell you that if this is the “crumbling of the keystone” in the defense, I wouldn’t want Reed and that team as my attorneys in the future.They all appear to be a bunch of lackeys.
Comment by Ancientemplar — August 30, 2010 @ 11:58 am
I had a law professor once tell me one day that when the other side whimpers about fairness, argues technicalities, or dazzles with smoke and mirrors that is because they have a weak case and the attorney is trying to do something to avoid a possible malpractice suit later on by their own clients. I sense this is what is going on here.
Comment by WannaBe JD — August 31, 2010 @ 8:17 am