In a brief statement upon reconvening court at 9 a.m. Goldin ruled that the case presented by plaintiffs' witnesses in a full day of testimony Wednesday did not meet the standard for declaring the election results "incurably uncertain" due to fraud, illegality, or substantial irregularities.
The ruling was greeted with satisfaction by lawyers for the Election Commission and by Election Commission chairman Bill Giannini, who said he took to heart criticism of the SCEC heard during the trial and would seek to improve the level of training for poll workers and other Commission employees for forthcoming elections.
Two lawyers for the plaintiffs — David Cocke and Regina Morrison Newman — said appeals would be likely after appropriate consultations were conducted with the full list of plaintiffs and with the rest of the legal team which had brought the case.
Both Cocke and Newman suggested that Goldin had used the wrong standard by which to judge the case, one that depended too heavily on evidence of outright fraud, and that the number of irregularities testified to by themselves should have invalidated the electin results. "His rulign was not consistent with the correct standard or with Tennessee law," Newman said.
Newman had been county Trustee until losing her reelection bid and joining in the lawsuit, along with the other nine petitioners, seven other Democratic nominees for various positions and two judicial candidates. She maintained that Goldin had committed several judicial errors that warranted a retrial, including his refusal to entertain a motion on behalf of judicial candidate Glenn Wright to amend his pleading.
(Original article, 0/07/2010 - 01:45 am)
Chancellor Goldin Considering Motion to Dismiss in Election Lawsuit
To do a variation on a well-known quote from T.S. Eliot, the trial in Chancery Court pitting ten candidates defeated in the August 5 county general election against the Shelby County Election Commission seems likely to end not with a loud bang but with a muted whisper. And almost before it ever got started.
After the histrionics of Monday’s opening round — which featured a wrangle over the Election Commission’s late delivery to the plaintiffs of discovery material, followed by a quarrel over the credentials of the plaintiffs’ intended witnesses — the presentation of the plaintiffs’ case proceeded almost quietly on Wednesday, with none of the fireworks promised by the lawsuit’s original and somewhat sensational charges.
No revelations about “ghost races,” no pulling aside the curtains to reveal a sinister eminence back there manipulating vote totals, no gotcha surprises of any kind — merely a litany of complaints from a variety of witnesses about election-day glitches and inconveniences, the substance of which was that the Election Commission could have done a better job of putting on the election. And the Commission had pretty much owned up to that already.
Among the highlights, if that is the right word: Regina Morrison Newman, a plaintiff herself as the unseated Democratic Trustee and one of several attorneys presenting the suit in Chancellor Arnold Goldin’s court, presented some compelling data about odd vote distributions in certain precincts, youthful investigator George Monger testified about some cryptic print-outs and suspiciously unsealed voting machines. And poll inspector Lexie Carter made the case that training of poll workers had been woefully insufficient to deal with the confusion caused by the one universally stipulated and central flaw on election day — that some 5400 people had been erroneously entered into the electronic poll book on August 5 as having early-voted already.
The plaintiffs’ star witness, if that is the right word, was Julie Ann Kempf, a former superintendent of elections in King County, Washington (Seattle). She was the only one of three proffered plaintiffs’ investigators allowed by Chancellor Goldin as an expert witness. (Disallowed as insufficiently credentialed were Bev Harris and Susan Pynchon, the two Black Box Voting activists who had basically compiled the plaintiffs’ itemized allegations.)
Plausibly enough, Kempf testified that the Election Commission had failed to impose sufficient logic and accuracy standards, and, in particular, had not conducted a fact-finding inquiry of the 3,265 potential glitch-affected voters whom the plaintiffs estimate had not finally managed to vote on Election Day. And the impact of her testimony may even have survived the embarrassing revelations from Election Commission attorney John Ryder about her checkered tenure as a voting supervisor in Seattle. One example: she acknowledged having been fired after allegations that she had mishandled absentee voting records.
When all was said and done, Election commission attorney Sam Muldavin moved for a dismissal of the lawsuit on the ground that it had failed to demonstrate the claimed pattern of fraud, illegality, and substantial irregularities that could justify voiding the election as “incurably uncertain.”
One of the ten plaintiffs — Criminal court judicial candidate Glenn Wright, whose margin of defeat was less than 2,000 — might have had a case, conceded Muldavin, had he founded his case on the prong of mathematical uncertainty. And, while lead plaintiffs’ attorney Gerard Stranch continued to insist, on behalf of all ten plaintiffs, that overall patterns of illegality had been proved, he offered a motion to refile Wright’s case on the suggested ground.
“Nah,” said Chancellor Goldin. And, after proposing to consult overnight a sheaf of depositions from principals in the case (notably, from Election commission chief administrator Rich Holden), he adjourned court until 9 a.m. Thursday, at which time, he suggested, he would have a ruling on the motion to dismiss.