OpenCDA

October 27, 2010

Here We Go Again…

Filed under: Probable Cause — Bill @ 9:21 am

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According to independent accounts, Kootenai County Clerk Dan English has decided to once again disobey Idaho law.   This time he has decided to open absentee ballots on Monday, November 1 so they can be more quickly counted on Tuesday, November 2.  Different sources say English told them he had the Secretary of State’s permission to do that.  So what’s the problem?

It’s against the law.

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Idaho Code 34-1008 seems to clearly prohibit what English wants to do and Ysursa wants to allow.  The law reads :

34-1008.  DEPOSIT OF ABSENTEE BALLOTS.  Between the opening and closing of the polls on such election day the judges of election of such precinct shall open the carrier envelope only, announce the absent elector’s name, and in the event they find such applicant to be a duly registered elector of the precinct and that he has not heretofore voted at the election, they shall open the return envelope and remove the ballot envelopes and deposit the same in the proper ballot boxes and cause the absent elector’s name to be entered on the poll books the same as though he had been present and voted in person. The ballot envelope shall not be opened until the ballots are counted.

I suppose the logical questions to be asked include:

1.  Why does Dan English think opening the ballots early is necessary?  There certainly are no exigent circumstances or grave emergency that would justify this.  Is this yet another example of English’s and Ysursa’s systematic (and usually undocumented) decisions to sacrifice election integrity in favor of speed?

2.  What gives English or the Secretary of State the statutory or constitutional authority to unilaterally, selectively, and situationally amend Idaho Code 34-1008 or any other section of Idaho statutes?

3.  When this matter was reported by Jeff Ward at Tuesday night’s Kootenai County Republican Central Committee meeting, why didn’t Chairperson Tina Jacobson ask Kootenai County Prosecutor Barry McHugh, a precinct committeeman, about the legality of English’s and Ysursa’s actions?  Or maybe if she didn’t want to embarrass McHugh, she might actually want to call whatever attorney does represent the Kootenai County Republican Central Committee.

Apparently Jim Brannon asked what it would take to stop this illegal action, but his question was unanswered.

50 Comments

  1. Good questions Dan,

    Obviously Mr. McHugh is not interested in pursuing this. Perhaps you and a Kootenai County Sheriffs deputy could be present Monday morning for the opening of the ballots. Then you could place Mr. English under citizens arrest for violating Idaho State Statute?

    Comment by Steve Adams — October 27, 2010 @ 9:31 am

  2. Steve,

    I’m Bill. Dan is not.

    The bigger question is, after going through the recently concluded election contest, why wasn’t every Republican precinct committeeman aware this is an apparent violation of law? At least, other than Jim Brannon, why didn’t anyone even ask if this was legal?

    The answer to your question is that it is not a violation of Idaho’s criminal code.

    Comment by Bill — October 27, 2010 @ 9:38 am

  3. Where is Cliff Hayes on this?

    Comment by Dan — October 27, 2010 @ 9:43 am

  4. Bill, can you explain to us why English can ignore or break this law and it is not considered a violation of Idaho’s criminal code? Because there is no statute for malconduct and there is a loophole to take oral instructions?

    Comment by Stebbijo — October 27, 2010 @ 9:50 am

  5. Stebbijo, where and what is the loophole for the oral instruction?

    Comment by Ancientemplar — October 27, 2010 @ 10:07 am

  6. I believe what I think is a loophole was discovered through a question that Mary asked of Enlish on the CDAPress. It’s I.C. 34-201. English elaborates in comments from the CDAPress article that I don’t have/can’t find. He offered the law to Mary in response to her question. He specifically states “oral” instruction of which is not defined concerning instructions/directive from the SOS,if I remember correctly in the comments. Mary elaborates on this site. My guess is that English may be worried about meeting time contraints ect. and this might be an “other situation” where they decide to do things differently through their own interpretation in the application of the law(s).

    Comment by Stebbijo — October 27, 2010 @ 10:32 am

  7. Sorry about that Bill,

    I failed to read who made the post. I should have known it wasn’t Dan, because the post was intelligently articulated with no cuss words :). Then make the arrest on a civil basis? That would be you not Dan 🙂

    Comment by Steve Adams — October 27, 2010 @ 10:50 am

  8. I’ll take intelligently articulated with cuss words any day of the week.

    Comment by Dan — October 27, 2010 @ 11:25 am

  9. Who is hearing that English is trying to start a day early?

    Comment by KootenaiConservative — October 27, 2010 @ 11:28 am

  10. Stebbijo,

    The reason is that not every violation of law is criminal. It generally needs to be enumerated in the criminal code before it becomes criminal. In some instances, some violations of other titles are enumerated as criminal in those titles. There are civil remedies available including recall.

    No, there is not a loophole allowing English to take oral instructions. Idaho Code 34-202 states that

    “… the secretary of state shall cause to be prepared and distributed to each county clerk detailed and comprehensive written directives and instructions relating to and based upon the election laws as they apply to elections, registration of electors and voting procedures which by law are under the direction and control of the county clerk.”

    It continues

    “The secretary of state shall prescribe a form for voter registration cards based on the voter registration laws and, from time to time, shall cause to be prepared and distributed to each county clerk such written corrections of such directives and instructions and of the form for registration cards as are necessary to maintain uniformity in the application, operation and interpretation of and to reflect changes in the election laws.”

    English should demand Ysursa to provide all directives and instructions in writing — no exceptions. That’s what a competent public administrator does so that there is a continuity of directives and instructions even if and when the people change.

    Comment by Bill — October 27, 2010 @ 11:44 am

  11. KootenaiConservative,

    I will not identify the people who told me, nor will I provide any information that might reveal their identities.

    Comment by Bill — October 27, 2010 @ 11:48 am

  12. Steve,

    Civil lawsuits or in some cases recall of the public official are the appropriate remedies for non-criminal violations of law.

    Comment by Bill — October 27, 2010 @ 11:50 am

  13. Dan,

    I’m sorry; I missed your earlier question.

    I don’t know Cliff Hayes’ position on this. He may not even be aware of it unless someone told him about it.

    Comment by Bill — October 27, 2010 @ 11:52 am

  14. Bill, Fair enough, but it’s difficult to go after English over allegations that haven’t been verified or corroborated.

    Comment by KootenaiConservative — October 27, 2010 @ 11:59 am

  15. Stebbijo,

    My apologies to you, too. Your embedded links caused your comment in #6 to be held awaiting approval.

    I.C. 34-201 is a general enabling statute. I.C. 34-202 (see comment #10) more specifically defines how 34-201 shall be executed.

    Comment by Bill — October 27, 2010 @ 12:02 pm

  16. KootenaiConservative,

    Two or more separate people contacted me and provided me with the information. That is sufficient verification and corroboration for me to raise the question and comment. English is welcome to post his response here.

    Comment by Bill — October 27, 2010 @ 12:04 pm

  17. Just phoned the county elections dept. The lady who answered the phone said that the ballots will not be opened on Monday. She asked where I read it, I said OpenCdA blog. Then the conversation turned very cold. The lady explained that I could confirm that the ballots will be opened only on Tuesday by calling back after 1:00 and speaking with Carrie Phillips, head of the elections dept. I said okay, and the lady hung up.

    Comment by Dan — October 27, 2010 @ 12:10 pm

  18. Dan,

    It is entirely possible that is correct if the elections office interprets “opening absentee ballots” as applying to the inner envelope (what I.C. 34-1008 refers to as the “ballot envelope”) that contains the marked ballot, but read I.C. 34-1008 again. None of the envelopes can be opened until the polls are open on election day.

    Comment by Bill — October 27, 2010 @ 12:15 pm

  19. It was announced last evening at the KCRCC meeting that the Elections Office contacted the Republicans to ask for an observer for MONDAY, when they planned to open the absentee envelopes. I believe it was Gary Ingram who said he would volunteer to observe on Monday.

    Comment by mary — October 27, 2010 @ 12:23 pm

  20. Just spoke with Carrie Phillips at the elections office. She told me they are planning to start opening absentee ballots on Monday due to the unusually high volume this cycle. She said she was waiting for a written clarification from Ysursa’s office on 34-1008. She’s going to call me back when she gets that information.

    Comment by KootenaiConservative — October 27, 2010 @ 12:53 pm

  21. KootenaiConservative,

    Thank you. Carrie Phillips’ answer makes no sense. So what if they have a high volume of ABs? Open them Tuesday, start counting Tuesday, and don’t stop counting until all the ballots have been counted. English and Ysursa have been lobbying for all mail-in ballots for a long time. Now it appears they’ve got their wish and they’re not up to the job. Looks like poor public administration to me.

    Comment by Bill — October 27, 2010 @ 1:01 pm

  22. The ballot is inside the ballot envelope inside the return envelope inside the carrier envelope. Am I getting that right?

    Comment by KootenaiConservative — October 27, 2010 @ 1:05 pm

  23. KootenaiConservative,

    Yes, although the return envelope (the one with the elector’s affidavit on the outside reverse) can also be the carrier envelope. Regardless, the marked ballot is supposed to be inside another envelope inside the return envelope. That way, when the return envelope (the one with the elector’s signature and usually the barcode information) is opened, the ballot is still inside the inner envelope. The inner envelope containing the marked ballot should contain no markings of any kind that enable the Elections Office people to associate the marked ballot with the elector who marked it. That is the separation that preserves the secrecy of the ballot.

    Comment by Bill — October 27, 2010 @ 1:10 pm

  24. I find it interesting that I call the Elections Office and am told that the ballots won’t be opened, and the worker gets upset over such a thing being said. And then Elections Dept. head Phillips confirms that they will be opened. Obviously Dan English is running a tight ship there.

    Comment by Dan — October 27, 2010 @ 1:45 pm

  25. It’s all attributed to statewide mass ignorance. It’s happening down south in Canyon County as well. Canyon County clerk responds to complaints about election staff

    Comment by Stebbijo — October 27, 2010 @ 2:56 pm

  26. Bill,

    Can you just have someone arrested? 🙂

    Comment by Steve Adams — October 27, 2010 @ 4:17 pm

  27. Steve,

    No.

    Comment by Bill — October 27, 2010 @ 4:30 pm

  28. Carrie Phillips just got back to me with an email directive from Ysursa’s office. I’ve forwarded it to Bill.

    Comment by KootenaiConservative — October 27, 2010 @ 4:48 pm

  29. KootenaiConservative,
    I
    I just got it. Thank you. I am very disappointed that Hurst did not cite the authority that allows the Secretary of State to decide that I.C. 34-1008 can be whimsically violated for no good reason. My guess is that there is no authority other than Ysursa knows he can get away with it.

    Comment by Bill — October 27, 2010 @ 5:04 pm

  30. Have you tried calling or emailing Ysursa’s office to get comment on that? During my earlier call with Phillips she said she couldn’t interpret the statute and would be deferring to Ysursa.

    Comment by KootenaiConservative — October 27, 2010 @ 5:11 pm

  31. I think they are abusing I.C.34-201. Even, Dan English cites it as his ‘loophole.’ When I was inquiring why the judicial branch (another subject, but similar) ignored their own laws (appointing lay people to judicial committees), it was trumped by their interpretation of another law which gave the Supremes the authority to do whatever they want. Bill calls it an enabling statute then the rest follows, but what they “shall” do is not what they are so inclined to do within their own interpretation of election operations. The SOS has found his wiggle room that our below average IQ intelligence legislators have graciously given them. That is why Canandian votes determine local elections and now we are stuck with his pathetic administration. Be assured that the AG’s office already has an out for all of this.

    Comment by Stebbijo — October 27, 2010 @ 5:38 pm

  32. I would like to read Mr. Ysursa’s reasoning for interpreting the statute rather than adhering to the statute. I also hope to hear opinions from our legislators.

    Comment by Susie Snedaker — October 27, 2010 @ 5:41 pm

  33. 1 34-1007. TRANSMISSION OF ABSENTEE BALLOTS TO POLLS. On receipt of such
    2 absent elector’s ballot or ballots, the officer receiving them shall forthwith
    3 inclose enclose the same, unopened in a carrier envelope indorsed endorsed
    4 with the name and official title of such officer and the words: “absent elec-
    5 tors’ ballot to be opened only at the polls.” He shall hold the same until the
    6 delivery of the official ballots to the judges of election of the precinct in
    7 which the elector resides and shall deliver the ballot or ballots to the
    8 judges with such official ballots.

    Comment by LTR — October 27, 2010 @ 5:56 pm

  34. I just emailed the SOS office asking them to clarify how Hurst’s directive is in compliance with 34-1008.

    Comment by KootenaiConservative — October 27, 2010 @ 6:27 pm

  35. I also emailed by District 3 legislators as well as soon-to-be Senator Vick. (I could not find contact info for Vito Barbieri.) I’ll update here when/if I receive any responses.

    Comment by KootenaiConservative — October 27, 2010 @ 6:36 pm

  36. Bill,
    Can you show us the email from the State?

    Comment by LTR — October 27, 2010 @ 6:49 pm

  37. Here is a copy of the message, which seems to have been distributed to all county clerks.

    Subject: Opening absentee ballot envelopes before election day

    Some of you have again requested permission to begin opening the absentee ballots before election day because of the number of absentee ballots you are receiving and the need to allow the folded ballots to flatten out before being run through the tabulators. When opening absentee ballots our office has issued the following directive:

    · Calculate the number of absentee ballots you have received and figure out about how long it will take to open them. Then, count backwards from election day that amount of time.

    · After the signatures on the affidavit envelops have been verified against the scanned signature in the voter registration system and have been recorded as being received, the affidavit envelope and the ballot secrecy envelopes may be separated. Once separated, the ballot secrecy envelope may then be opened and the ballots removed to be laid out to flatten before running them through the tabulators.

    · In order to maintain the integrity and security of the ballots, after they are removed from the envelops, they are to be kept in a secure location with limited access. Any time those ballots are accessed, there is to be at least two individuals accessing them. Also, arrangements are to be made to have a guard (typically a deputy sheriff, police officer or private security firm) checking to be sure that the location is still secure on a regular and frequent basis during non-office hours.

    · Watchers, who have been certified by the parties or candidates, are to be informed of your intent to open ballot envelopes early and of your schedule, so they can be there if they choose.

    · The counting of absentee ballots is not to begin until election day.

    If you have any questions, don’t hesitate to call.

    Tim Hurst

    Tim Hurst
    Chief Deputy
    Idaho Secretary of State
    700 W. Jefferson, Room E205
    Boise, Idaho 83720
    phone: 208-334-2852
    thurst@sos.idaho.gov

    Comment by KootenaiConservative — October 27, 2010 @ 6:53 pm

  38. KootenaiConservative,

    To answer your question in #30: Yes, I sent this to Hurst via email.

    What is the statutory authority or court decision that allows the Secretary of State’s office to disregard the legislature’s intent and mandate clearly and succinctly articulated in Idaho Statute. 34-1008?

    Comment by Bill — October 27, 2010 @ 6:58 pm

  39. See http://blogs.wsj.com/washwire/2010/10/27/court-deals-setback-to-murkowskis-write-in-bid/?mod=google_news_blog for another common election crime. Word has it that English has a printed list of the write ins that he hands out on request.

    Comment by Pariah — October 27, 2010 @ 7:14 pm

  40. I heard back from Mr. Hurst by email.

    He said “No ballots will be counted before election day.”

    “Counties with a high number of absentee ballots will be allowed to remove the ballots from the affidavit and ballot envelopes prior to election day, lay the ballots out and put a weight on them to help flatten the creases from folding the absentee ballots so they will feed properly through the tabulation equipment. Certified poll watchers will be allowed to be present through the entire process and proper security measures will be implemented to preserve the integrity of the ballots. Kootenai County is planning to open the ballot envelopes on Monday, but no ballots will be counted until election day.”

    THIS IS INSANE!

    Tim Hurst

    Chief Deputy

    Idaho Secretary of State

    Comment by LTR — October 27, 2010 @ 7:37 pm

  41. Was “THIS IS INSANE” an editorial comment or on Hurst’s e-mail?

    Comment by Ancientemplar — October 27, 2010 @ 7:41 pm

  42. Tee Hee – this is not “INSANE” – it is fricking funny. Anyone have a photo of the “weight” and just how much does it weigh and will it guarantee a proper feed into the tabulation equipment? Yep, my vote is a joke.

    Comment by Stebbijo — October 27, 2010 @ 8:10 pm

  43. SOOOOOOO who is counting for the county clerk position? Dan himself?

    Comment by concerned citizen — October 27, 2010 @ 8:11 pm

  44. Stebbijo,I said I’d be a poll watcher, I guess I should take my tackle box with me. C.C. I’ll throw and leader and a hood on English to keep him on the line while I’m “Watching”.

    Comment by Ancientemplar — October 27, 2010 @ 8:16 pm

  45. Ancientemplar “THIS IS INSANE” was my comment. I am fighting mad!

    Mr. Hurst is asking for “proper security measures will be implemented to preserve the integrity of the ballots”. Is he serious?

    If he is worried about creases in the ballots, I will loan him my iron to smooth the creases out. Can you believe it! What the heck is the matter with these politians? NO RESPECT FOR THE VOTER!

    Comment by LTR — October 27, 2010 @ 8:24 pm

  46. And THEY think the voters are idiots. The bureaucrats are beyond the pale.

    Comment by Ancientemplar — October 27, 2010 @ 8:31 pm

  47. Hey, I have a lot of weight. I will volunteer to sit on all of those ballots. We just have to decide, how long should I sit on each ballot to take out the crease? Good luck Acientemplar!

    Comment by Stebbijo — October 27, 2010 @ 8:38 pm

  48. Just got back an email from Steve Vick:

    My reading of the law would also indicate that the absentee ballots can only be opened on election day. Have you contacted Mr. Hurst about this? I would be interested in his response.
    Steve

    I did not expect such a timely response. Very impressive.

    Comment by KootenaiConservative — October 28, 2010 @ 6:35 pm

  49. KootenaiConservative,

    I’m glad Mr. Vick was timely responsive. That’s always a good trait in a legislator, even a legislator-elect. With only a few limited exceptions, our state legislators have no staff to process information. I suspect he appreciates timely information and inquiries from constituents.

    Comment by Bill — October 28, 2010 @ 6:45 pm

  50. Still waiting for my email reply from Bullard.

    Comment by Dan — October 28, 2010 @ 10:07 pm

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