[Sunday’s Coeur d’Alene Press editorial headlined Faulty laws cost us all almost hit the 10-ring. It was soooooo close.
[The Press correctly pointed out that Idaho’s election administration laws desperately need to be re-examined and updated. We’ve been saying [that for months now. But where the Press missed the bullseye was in failing to recognize and editorialize about how the entire election contest [lawsuit and its associated costs could have been completely avoided.
Prior to the 2009 Coeur d’Alene city election, the City signed an Agreement with Kootenai County to administer the City election.
One of the contractual requirements of the Agreement was that the Clerk of the District Court (County Clerk Dan English) agreed to “Comply with and require compliance by all election judges of the provisions of Titles 34 and 50, Idaho Code.” (Agreement, pg. 1, par. 1.b.) Thus, compliance with the provisions of Titles 34 and 50, Idaho Code, was one of the “results to be achieved.” (Agreement, pg. 3, par. 4).
Because compliance was one of the results to be achieved, City Clerk Susan Weathers (Chief Election Official for the City) had not only a right but a duty (Agreement, pg. 3, par. 4) to ensure that the City’s independent contractor, the Clerk of the District Court, complied with the provisions of Titles 34 and 50, Idaho Code. One of the provisions with which English was obligated to comply and with which Weathers should have ensured compliance was Idaho Code 34-1011. It reads
34-1011.County clerk’s record of applications for absent elector’s ballots. The county clerk shall keep a record in his office containing a list of names and precinct numbers of electors making application for absent elector’s ballots, together with the date on which such application was made, the date on which such absent elector’s ballot was returned. If an absent elector’s ballot is not returned or if it be rejected and not counted, such fact shall be noted on the record. Such record shall be open to public inspection under proper regulations.
We know from the subsequent trial that English failed to perform that duty. He failed to keep the record required by Idaho Code 34-1011. It can be reasonably argued that prior to the election, City Clerk Susan Weathers should have inspected the facilities and practices of the City’s independent contractor, the Clerk of the District Court, to ensure the contractor was prepared and equipped to deliver the “results to be achieved.” If she did that inspection, then she failed to see that a statutorily required record was not being kept. If she didn’t do that inspection, then she, too, failed to perform her duty. Properly keeping that record could certainly have obviated the costly election contest.
Because the County had failed to deliver a clean election under the terms of the Agreement, the City and County ought to have been adversaries. The City should have demanded the County deliver a clean election, something it failed to do under the terms of the Agreement. Instead, the City joined with the County and Kennedy to try and suppress Jim Brannon’s election contest lawsuit. But if the election had been conducted according to law and the Agreement, the lawsuit would never have been necessary.
So why didn’t the City do the right thing and demand that the County deliver a clean election? Because the City got the election results it wanted. The City government wanted the incumbents reelected, so it wasn’t going to ask too many questions about the conduct of the election. And the County? Why would the County voluntarily come forward, say “We messed up the election,” and incur the obligation to fund a new election? It wouldn’t.
And as for Mike Kennedy’s spurious claim for attorney’s fees from the City? Even if the election contest lawsuit had favored Brannon, Kennedy would not have incurred any personal liability. He voluntarily chose to hire attorneys when they weren’t needed, so that puts him but not the City taxpayers on the hook for his attorney’s fees.
Bill, here’s what I posted under the editorial over on the Press blog:
Mike Kennedy did not have to hire two attorneys in the election lawsuit. Mike was only named because the law requires the winning candidate to be named. He did not need to defend himself because he was never accused of anything. Mike could have simply watched from the sidelines. Or he could have even JOINED with Brannon in an effort to simply discover the accurate totals and uncover the many errors and poor procedures in our election system.
But Mike did not. He hired not just one, but two attorneys. His team worked vigorously to obstruct and delay access to the election documents, probably in hopes that Jim Brannon would run out of both energy and money. Jim nearly did, many times. But he is a tenacious fighter, as is his attorney Starr Kelso, and during their 9 month struggle to get the supposed-to-be-public documents and the subsequent trial, they’ve uncovered important, serious problems in our system and our laws.
WE, the voters, should be glad Jim and Starr are pushing this forward to the Supreme Court, where hopefully some common sense and backbone can be found. The legislature also needs to fix our vague, antiquated election laws, many of which our Secretary of State and County Clerk have ignored for decades.
So, as far as candidate Kennedy, he made his choice when he hired two highly paid professionals and came out in full combat mode.
Comment by mary — November 21, 2010 @ 4:15 pm
I agree with your point that this whole thing could/should have been handled as a basic business contract problem if the city had enforced their (our) contract rights and the county had not been so defensive about admitting their mistakes.
At what point in the process did it become clear enough, in your opinion, that the city could have held the county liable?
Comment by mary — November 21, 2010 @ 4:21 pm
Mary,
1. Agreed. If Kennedy had done the same diligent research that Brannon did before the November 9, 2009, canvass, and if Kennedy had wanted an honestly run election, he would have raised questions about the accuracy and validity of the election process. We know Kennedy didn’t want to raise any of those questions, though, because it wasn’t until the day after the canvass that he called Boise to ask about a recount. If he had wanted an honest election, he would have been making inquiries long before the canvass.
2. On November 6, 2009, Larry Spencer very astutely and perceptively forced the Kootenai County Elections Office to run Absentee Ballot Report – Kootenai, dated November 6, 2009 (Exhibit 5 at trial). It took three to five days to analyze that and begin checking addresses. It was then that the highly questionable out-of-area absent electors residency became an issue. At that time a reasonable man could have concluded that the election process was flawed enough to question whether the County had failed to deliver on the contract.
But again, as the City’s Chief Election Officer, City Clerk Susan Weathers had a duty to the people of Coeur d’Alene. With the election as close as it was, she should have been pounding on Tote-a-Vote Dan’s door on November 4 and demanding to see proof of a clean election. It is at that time she would or should have noticed T-a-V’s failure to keep the record required by IC 34-1011. Upon making that inspection and finding deficiencies, she should have gone back to the City Attorney and insisted that the canvass consist of much more than rubber-stamping the contractor’s numbers without question. (It was the City’s contract attorney, Mike Haman, and not I who used the words “rubber stamp” to describe the City’s canvass.) One legal authority has describe a “canvass” this way:
In Idaho, the canvassing board is forbidden to recount the ballots, but it certainly has the authority to investigate the conduct of the election to make sure it was legal and proper. However, the canvassing board for the Coeur d’Alene city election was the mayor and city council. Needless to say, on November 9 they smacked the rubber stamp down so fast it left skid marks on the form. Yes, Mike Kennedy did vote to accept the canvass.
Comment by Bill — November 21, 2010 @ 5:03 pm
Kennedy and all the rest of the city council and mayor, voted to accept the Canvass of the Votes, without even one question asked, as I have been told by those present. Even with a mere 5 vote margin in Kennedy’s race and only a 29 vote margin in the Goodlander-Gookin race, the mayor and council had not a pause or a question. As you said, Bill: Rubber stamp.
Comment by mary — November 21, 2010 @ 6:32 pm
It would be unusual in any circumstance where you’d see a question asked, debate offered, or a split vote with that bunch. Head-nodders and rubber-stampers. A majority of the voters here seem to be okay with that.
Comment by Dan — November 21, 2010 @ 6:51 pm
Dan,
In a ratio of about 3:2, the majority of voters on November 2 of this year decided they’d had enough of “Tote-a-Vote” Dan English. And with good reason. People want to trust our government officials, and to some extent we need to. English dismissed his laziness and incompetence as “human errors.” Not synonyms in my thesaurus.
Comment by Bill — November 21, 2010 @ 7:36 pm
There is no doubt, that if the outcome of the city election were different, the city would be challenging the election too.
Comment by LTR — November 21, 2010 @ 8:21 pm
Kennedy’s urgent and serious personal defense was no doubt placed to cover his arse. It gives one good reason to wonder what shenanigans he personally conducted and if any were outright illegal. He wanted this effort impaired to the highest degree and probably not just because he wanted to retain his Councilman status. He likely had stuff he needed to remain hidden.
Comment by Wallypog — November 22, 2010 @ 10:12 am
Very well said, Wallypog. His actions at the beginning of the process speak louder than his current whine.
Comment by mary — November 22, 2010 @ 11:59 am