Brannon suit goes to the judge

Hosack says it could take him 1-2 weeks to decide fate of Kennedy’s city council seat

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COEUR d'ALENE - Jim Brannon wants a new election for Seat 2 on the Coeur d'Alene City Council.

If one isn't ordered, the incumbent, Mike Kennedy, has enough votes to secure the narrow victory no matter which way evidence on three more illegal voters is ruled.

Kennedy won the Nov. 3 election by five votes.

But 1st District Judge Charles Hosack must decide whether some irregularities during Coeur d'Alene's Nov. 3 general election warrant a one-on-one runoff for the city council seat.

Both sides will have to wait. The judge said Saturday he might need a week or two to make his decision after the trial concluded.

"I've gotten used to the delays," Kennedy said following the six-day trial, the complaint for which was filed 10 months ago. "I'm confident the judge will do the right thing, in the right amount of time."

Saturday's closing arguments in the election challenge suit were recounts of positions both counsels had taken during the week.

Mainly, whether the number of absentee ballots the Kootenai County Elections Department tabulated after the polls closed and the City Council adopted as the final tally - 2,051 - is the accurate number of legal ballots received.

Brannon's attorney, Starr Kelso, said there is no document in evidence that verifies that total.

He pointed to printed-out 2009 absentee ballot reports run after the polls closed on Nov. 6, Nov. 16, Nov. 24 and one in August of this year that didn't reach that total. Those numbers varied, with 2,041 being the total on two of those reports.

Those reports are printed off of a real-time electronic database from the Secretary of State's Office, and is an always fluctuating report since it purges registered voter names who move, die or are convicted of a felony since the election.

That makes direct comparisons of absentee voter names and the 2,051 total imperfect, the defense said.

Deedie Beard, elections supervisor at the time of the election, testified during the week that the department kept daily absentee ballot reports, but didn't add those reports up. Those are still in storage with other documents, but weren't a part of the evidence.

Regardless, a report wasn't run immediately after the election as it should have been, Kelso said, and if one had been it could have clarified the dispute. The case isn't to deny the machines counted 2,051 absentee ballots, it's whether there's proof it counted 2,051 legal ones. Had that been the remedy sought, Brannon would have asked for a recount after the polls closed, which he didn't, Kelso said.

"It's just a number the machines counted," Kelso said.

But the absentee ballots were counted by Senior Magistrate Judge Eugene Marano, too, during a discovery request, in June and July. He counted 2,051.

Kootenai County elections officials testified during the trial that 17 of those ballots were "duplicates," meaning they couldn't be run through the machine at the time of count due to some sort of crease, rip or other defect. When that happens the machine stops, and elections staff have to copy the votes on a mint condition ballot to run through and count.

It does not mean their votes were duplicated or counted twice, Mike Haman, city attorney, explained in his closing comments, rather the original ballot had to be reproduced to be counted once.

That means that 17 total shouldn't be subtracted from the total as Kelso argued it should, Haman said.

Like much of the trial, the arguments centered about numbers on reports, and the different addition and subtraction formulas for absentee ballots and envelopes to use to best find the accurate count.

Kelso got the absentee ballots as low as 2,019, and never matched the exact number of ballots to envelopes. But defense attorneys counted 2,051 ballots and 2,050 envelopes. If one of the four undetermined envelopes was a city one and not county that could match up the envelopes, too.

More than 6,000 votes were cast.

"The Brannon team began digging and digging and digging to see what was the actual truth. They're not to be faulted for that," Kennedy's attorney Peter Erbland said of the suit that put the elections department under the microscope.

But, he said, instead of recognizing the election was conducted lawfully with a few mistakes, they ran from the truth "as if it were radioactive."

The day began with Hosack addressing the at-times "contentious" week in the courtroom. Both counsels at times argued with each other during the week, and the judge in turn criticized the counsels, but Hosack said Friday he appreciated the effort from both sides trying a unique case governed by 1890 statutes.

Hopefully, the judge said, the criticism "was equally spread out."

And no matter what he rules, he said about the split courtroom and close election, "50 percent will think I failed miserably."

Hosack will still decide whether to count testimony from three illegal voters as votes for Kennedy.

Hayden couple Ron Prior and Susan Harris said they couldn't remember for whom they voted, although recorded conversations indicated they thought it could have been for the incumbent. County resident Rahana Zellars testified she "probably voted for Kennedy."

If those votes are thrown out, it leaves the incumbent winning by one. The five-vote difference between Kennedy and Brannon was trimmed to four earlier in the week.

The defense position has always been that a few mistakes don't warrant throwing out an election. Proof sufficient to change the result was the only reason to.

But if Hosack agrees with Kelso that enough gray area exists on how the election was run, a new election may be ordered. Kelso also said that a voter who voted at the wrong precinct and another who received a wrong ballot before handing it back for the correct one also pointed out irregularities.

Saturday's atmosphere was more subdued than other days. At the end Brannon, who sat at the counsel table while Kennedy sat in the back of the courtroom, stood and chatted and thanked his supporters.

"I want to thank everyone for doing their jobs, and I want to thank the court," he said, adding that a possible two-week wait didn't bother him for a case that has come this far. "I truly mean that."

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