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Following last Sunday’s OpenCdA post titled “I’d Follow the Law”,  “concerned citizen”  added this comment:

“Hopefully this will also raise the question as to WHY Deedie’s computer was wiped clean. What did they have to hide?”

Regardless of whether the Idaho Supreme Court addresses that specific question when it hears oral arguments in the appeal of Brannon v. City of Coeur d’Alene, et al, on Wednesday, September 19 at the Kootenai County Courthouse,   it’s a question that should be discussed even if not answered definitively.  

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If the title question can be answered, it must first begin with defining “they” as former Kootenai County Clerk Dan English and former County Election Supervisor Deedie Beard.  “They” had to be expanded later to include Kootenai County Prosecutor Barry McHugh and Deputy Prosecutor John Cafferty.

As long as wide margins separated winning and losing candidates for elections, as long as a losing candidate didn’t understand that a recount would simply recount all the ballots that had been counted without concern about whether those ballots had been illegally cast by illegal voters, and as long as the administration of any particular election was not closely scrutinized to determine if election laws had been violated and illegal ballots cast and counted, then it appeared as if “they” had nothing to hide.  Maybe this would be a more accurate statement:  As long as no one had reason to look and see what “they” might be hiding,  a too-trusting electorate assumed “they” were hiding nothing.

The Coeur d’Alene City election in 2009 and in the subsequent investigation and lawsuit changed that.  In two of three city council seats, 29 votes separated winner and loser in one, and 5 votes separated winner and loser in the second.   Those happy with the election outcome but who likely knew the election was flawed quickly rallied to vilify the alleged loser for Council Seat 2, Jim Brannon, for not simply demanding a recount.  But Brannon and his supporters recognized the fundamental fallacy of any recount:  A recount counts the same ballots originally counted without any regard for whether they were legally or illegally cast.  Those same supporters had already recognized that “they” had not followed Idaho laws regarding municipal elections, laws especially relating to the recording and handling of absentee ballots and the laws determining who could and could not vote in the Coeur d’Alene City election.

In short, what “they” had to hide was substandard election administration by the Kootenai County Clerk.  “They” got away with substandard performance as long as elections weren’t close, but “they” appeared to fall into the trap of assuming the election would not be close.  That’s complacency, and in elections, it is a killer.   Only close elections get close scrutiny, but “they” had no way of knowing for sure an election would be close until all the ballots had been counted.  Consequently, the rule rather than the exception must be:  Always assume that every aspect of every election will be examined in microscopic detail to ensure compliance with the law.   Yes, there will be mistakes in every election (a pitifully lame excuse often uttered by former County Clerk Dan English),  but repeated and numerous violations of election law and best practices are not mere mistakes — they are failures of duty, a duty owed to the people who relied on election officials to perform their duties diligently and as required by law.

A few examples will illustrate the behaviors “they” hoped would remain hidden from the public.

On November 16, 2009, citizen Larry Spencer notified Kootenai County Prosecutor Barry McHugh via email that,

“[…] I have a copy of the official tally sheet of the canvas dated 11/4/09 and it shows that 2051 absentee votes were counted.  I also have the ‘absentee ballot report,’ dated 11/06/09, and it is 175 pages long. […] The problem is that according to the list only 2047 ballots were issued (the documents stated the total on the last page) and five of those were ‘spoiled’ and reissued, resulting in only 2042 votes cast.  The two documents show a discrepancy of nine votes too many being counted. […]” (Trial tr., p. 396-397)

On November 17, 2009, Kootenai County Prosecutor Barry McHugh referred Larry Spencer via email to Idaho Code, Title 34, Chapter 20, the statutorily provided method to contest an election.  McHugh continued,

“In the event such a [election] contest was filed my office is responsible for representing the elections office in the contested matter.”  (Trial tr., p. 398)

So in his trial testimony, McHugh acknowledged being informed of an apparent absentee ballot count discrepancy as early as November 16, 2009, and he notified Larry Spencer that an election contest was the statutorily provided remedy.  He also notified Spencer on November 17 that the Kootenai County Prosecutor’s Office would be responsible for representing the elections office should such a contest be filed.

Those dates are important,  because Kootenai County Elections Supervisor Deedie Beard retired from her county employment on November 30, 2009, just one day after the election contest lawsuit was filed and barely two weeks after the Spencer-McHugh email exchange.  This goes directly to the issue of when Deedie Beard’s office computer was “cleaned.”

It is my opinion that on November 17, 2009, at the very latest (though possibly even earlier), Kootenai County Prosecutor Barry McHugh should have formally and specifically instructed Kootenai County Clerk Dan English, Elections Office Supervisor Deedie Beard, and every employee and volunteer working in and for the Elections Office that any and all writings (see Idaho Code § 9-337(16)) pertaining to the 2009 Coeur d’Alene City election were to be preserved intact.  Unquestionably, “writings” includes the material on Beard’s office computer.  That same instruction should have been given to the County’s Information System Department.  McHugh should also have specifically admonished them that the failure to comply with that directive could be prosecuted as Destruction, Alteration, or Concealment of Evidence pursuant to Idaho Code § 18-2603.

Assuming McHugh was being honest in his exchanges with Spencer in mid-November, McHugh may have not been fully aware at that time of how badly the Kootenai County Elections Office had administered the 2009 City election in performing its duties to fulfill the County’s contract with the City.  Consequently, until he could sort things out, McHugh should have wanted everything about that election preserved in pristine condition so that his office would have it available in fulfilling its representation of the County.   McHugh had to consider the City might sue the County for breaching the contract, so he as much as anyone else would have wanted evidence preserved.  That evidence might have supported the County’s case if the City did sue the County for a new election.

When the election contest lawsuit was filed by Jim Brannon on November 29,  2009, Kootenai County was initially named as a defendant along with the City of Coeur d’Alene and Councilman Mike Kennedy.  But by December 10, 2009, it had been determined that the County could offer no relief to Brannon, so the complaint was amended to drop the County from the lawsuit.   The County was no longer a defendant, so there could be no valid reason for the County to impede Brannon’s timely access to the records of the 2009 City election.  It is very important to understand that all of the records Brannon and his attorney sought to examine were public records subject to public examination as permitted by the Idaho Public Records Law.  Examination of these records under the terms and conditions prescribed by law in no way would or could compromise the “secrecy of the ballot”.

As early as the December 1 meeting in the office of Kennedy’s personal attorney, Peter Erbland, a meeting attended by representatives from the City Attorney and County Prosecuting Attorney, it should have been apparent to McHugh that the City had no intention of suing the County over the County’s apparent failure to fulfill its duties under the City-County agreement.  I believe the City was happy with the election outcome and no doubt wanted the County join with the City to ensure Brannon’s election contest lawsuit either failed early or would be drawn out into late 2012 or early 2013 so an appeals court would declare it moot.

In April 2010 while preparing for the eventual trial, Brannon’s attorney Starr Kelso sought the records, including e-mails, of Kootenai County Clerk Dan English and Elections Supervisor Deedie Beard.  Deputy Prosecutor John A. Cafferty, representing the Office of the Kootenai County Prosecuting Attorney Barry McHugh, responded with this letter dated May 6, 2010.  Note particularly the letter’s second paragraph.

“Additionally, Mr. English reviewed the computer of former county employee, Deedie Beard.   As Ms. Beard is no longer employed with Kootenai County, the computer utilized by Ms. Beard had been cleaned and her e-mails were therefore not available.   It is the belief of Mr. English that he has provided you copies of the e-mails pertaining to Ms. Beard through his e-mail system.  However, if you desire, the County would accommodate request by you for a more thorough search to be performed by our Information Systems Department at a cost as yet undetermined.” [Emphasis mine]

The wording of Cafferty’s letter to attorney Kelso makes it clear that Beard’s computer was “cleaned” after the election contest lawsuit had been filed.   Since the Kootenai County Prosecutor was now representing the County in the election contest lawsuit, a civil action, it would have been appropriate for McHugh to contact the Idaho Attorney General and ask him to appoint a special deputy AG to investigate and prosecute any criminal violations that might arise from the election contest lawsuit.   While McHugh’s office might have been able to prosecute individual electors for their independent criminal conduct, he would not be able to prosecute anyone inside the County Clerk’s office and the Elections Office while simultaneously representing them in the civil election contest lawsuit.  It would also have likely been impossible for McHugh to prosecute anyone in the City government connected with the election.   After all, Deputy Prosecutor Cafferty had been directed by McHugh to attend a December 1, 2009, meeting in “Pete’s office” (Kennedy’s private attorney Peter Erbland).  City Attorney Gridley and Deputy City Attorney Wilson had also been invited to attend.  Until December 10, 2009, the County was a co-defendant with the City and incumbent Kennedy.   I believe it was unprofessionally shortsighted at best  for the Kootenai County Prosecuting Attorney to not prepare “Plan B” for the eventuality that criminal violations committed by City or County employees might be uncovered as a result of the election contest .

It would appear from Cafferty’s May 6, 2010, letter to attorney Kelso, English misstated the facts to Cafferty, and Cafferty misstated the facts to  Kelso.    McHugh and Cafferty should have not taken Dan English’s word for the content of Beard’s computer.   (It may come as a shock to McHugh and Cafferty to learn that clients sometimes lie to their attorneys or withhold relevant information from them.)  Rather, they should have asked a qualified technician from the County’s Information Systems Department to image the hard drive on Beard’s office computer.  That technician should also have imaged the server’s hard drive to capture messages stored on the server but deleted from her computer.   The technician could have extracted relevant material from the images rather than the original drives.  Oddly enough, the last sentence in Cafferty’s letter to attorney Kelso suggests the Prosecutor’s Office was not too terribly interested in fulfilling Kelso’s request for access to public records.

McHugh and Cafferty should have been more interested in the writings on and involving Beard’s computer, if only so the Office of the Kootenai County Prosecuting Attorney would have a more complete picture of the quality, or lack of it, of the County’s administration of the election on behalf of the City.

On May 7, 2012, I submitted this letter requesting public records to Kootenai County Clerk Cliff Hayes.  Shortly thereafter, Clerk Hayes contacted me by telephone and invited me to come to his office to examine the records sought and retrieved pursuant to my request.   By mutual agreement, I went to Clerk Hayes’ office on May 11, 2012, and reviewed over 100 emails the County’s Information Systems Department had retrieved from the County’s server.   Deedie Beard was either the sender or the recipient of all of them.   Some were purely personal or social and had no relevance to the election contest lawsuit.   However, some pertained to Elections Office business and, because they were public records, should have been provided as requested by attorney Kelso in April of 2010.

One of the emails I saw was unquestionably relevant to the election contest lawsuit.  It was dated Thursday, September 10 2009, 3:52 PM, just 53 days before the election.  It was from Steve M. Foos to Deedie Beard, and the subject was “General Election 11/3/2009 question.”  Foos employer, ES&S, makes the tabulator equipment the Kootenai County Elections Office uses, and it also handles the ballot layout.  Here is a scanned copy of the two-page email.

Foos’ email is important, because one of the very relevant issues Brannon wanted to prove at trial is that several people received the wrong ballots to vote.  Some people received City election ballots and voted them when they should not have received City ballots.  They were not residents of the City of Coeur d’Alene, so they could not legally vote in the City election.   The questions asked by Foos in his email certainly appear to go to that very issue, yet this email was not provided to attorney Kelso prior to the trial.   It was for Brannon and his attorney, not the County, to determine the value and relevance of the exchanges between Foos and Beard.

In her election contest trial testimony, former Elections Supervisor Deedie Beard defiantly proclaimed that “…we’re not the election police,” and “…we don’t go out and personally verify somebody’s address.”  (Trial tr., p. 639)  But if they’re not the election police, then who is?  If the Kootenai County Elections Office was not responsible for establishing which electors should have received City ballots and which should have received county ballots based on residency, then who was?  Apparently no one!

Here is an example of the consequences of Beard’s and English’s supposedly not being the election police in their jobs as County Clerk and Elections Supervisor.  This is a scan of poll book page 55 of 173 from Precinct 39 in the 2009 election.  Note that Precinct 39 is one of the precincts listed as both City and County on Foos’ email to Beard prior to the election.   The entries on lines 549 and 550 reflect that Janet S. Gulbrandsen and Stephen T. Gulbrandsen, both residing at 7210 N. Ramsey Rd, Coeur d’Alene, voted in person at the polling place.  The Ballot Code reflects that both had been determined by the Kootenai County Elections Office to be qualified electors in the City election and were to be given CDA CITY ballots, ballots for the Coeur d’Alene City election now being contested in Court.   Their signatures and sequence numbers indicate they voted the ballots they had been given.  The problem is that their residence address, 7210 N. Ramsey Rd, is not in the City of Coeur d’Alene; it is in the County.  They were not qualified electors in the City election; they should not have been given CDA CITY ballots; and they should not have been allowed to each cast a ballot in the 2009 Coeur d’Alene City election.   Yet they were and they did.  Why?  Because English and Beard did not consider it to be their responsibility as Kootenai County Clerk and Elections Supervisor to verify addresses!

In the election contest lawsuit trial, the Court received evidence provided by Brannon that several people had been allowed to vote illegally in the City election.  Those people were not, in fact, residents of the City.  The Gulbrandsens were not among those whom Brannon sought as trial witnesses, because he simply didn’t know about them.  If the Foos email to Beard had been timely provided in April 2010 as requested instead of being supposedly “cleaned” from Beard’s or county computers, we can only speculate how many more voters we might have found who, like the Gulbrandsens, did not reside in the City of Coeur d’Alene but were allowed to vote in the City election in 2009.

It is likely that many of the voters who lived in the County but improperly received and voted City election ballots were unaware they were in fact casting illegal ballots.   Those who were unaware likely had no intention of violating the law.  They had likely relied on the implicit representation made to them by the County Elections Office that they were given the correct ballots by the County Elections Office employees.  After all, it was the official duty of the County Clerk and the Elections Office employees to ensure that voters received the correct ballot to cast.

Idaho’s election laws are scattered throughout various titles and sections of Idaho Code.  It is the duty of the County Clerks as well as the Secretary of State to make the legislature aware of conflicts and inconsistencies in the election laws.  But as voters, we also have a duty to make our legislators aware of issues with the laws.  As we learned from the 2009 Coeur d’Alene City Election contest lawsuit, the county clerks and the Secretary of State do not always perform their duties as diligently as expected.  It is not the job of either the Secretary of State or the Kootenai County Clerk to spend taxpayer dollars to “get out the vote.” Rather, it is their duty to ensure that those citizens who choose to lawfully register and vote are provided with the means and materials to vote lawfully and without unreasonable or unlawful impediments.

Elections are important.  Election integrity is important.  The one question no elector should ever again have reason to ask about the officials who administer Idaho’s elections:  “What did they have to hide?”