Election dispute heads to court - Coeur d'Alene Press: Local News

Election dispute heads to court

Judge Hosack denies summary judgment request

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Posted: Wednesday, September 1, 2010 12:00 am

COEUR d'ALENE - It's going to trial.

That's where the election challenge is going to be proven, beginning at 9 a.m. Sept. 13, one way or the other.

First District Judge Charles Hosack denied City Council Seat 2 incumbent Mike Kennedy's request for summary judgment on Tuesday, meaning the case will have its day in court, scheduled for four days beginning in two weeks.

"We won some things today and some not so," said seat 2 challenger Jim Brannon, outside the courtroom following Hosack's rulings on a number of motions beside the summary judgment. "It's all right. I think we have some work to do in the next couple of weeks. We'll be busy."

Hosack said the case has a lot to prove to identify and overturn five votes that were illegally cast for Kennedy. The judge weighed nearly two hours of testimony from both counsels in support and against the hundreds of pages worth of affidavits and reports now filling multiple files in courthouse records regarding the civil suit that's in its 10th month.

While some of those filings don't amount yet to fact in the court's view, the case has come too far now to cut it off, the judge ruled.

"If it were a trial, I have not been convinced," Hosack said. "But this isn't a trial."

Now Brannon and his attorney, Starr Kelso, have two weeks to augment their case before it begins.

Among the disputed filings were affidavits filed by Kelso stating four out-of-town voters didn't reside in Coeur d'Alene to receive their subpoenas to testify.

Three of them live in Canada, and one lives in California.

Several other allegedly inadmissible local voters have been issued subpoenas to testify. In recordings by a private investigation firm hired by Kelso, several told investigators they voted for Kennedy.

But Kennedy's attorney, Scott Reed, said those recordings are hearsay, and shouldn't be allowed. Moreover, the out-of-town voters were legal absentee voters who shouldn't be required to testify.

Whether they were legal out-of-state voters is the same argument the two sides have been debating according to interpretations of city and federal election laws during the entire process.

Tuesday, Reed said it was the plaintiff's responsibility to prove they were all illegal, and all voted for Kennedy, which Kelso didn't do.

But Brannon can still prove that at trial, the court said.

"The problem of proof for the plaintiff is pretty daunting," Hosack said. "But don't cut it off because you're skeptical.

"That's what trials are for," he added.

Kelso requested the judge compel the four questioned voters to show up for trial, but Hosack said - despite the uniqueness of an election challenge - the court's jurisdictional authority didn't stretch that far. That means the witnesses have to be willing to show up, and the plaintiff is likely going to have to provide lodging and tickets to bring them to Coeur d'Alene.

"We'll do whatever it takes," Brannon said on the possibility of bringing the out-of-town absentee voters to court. "We want the citizens of Coeur d'Alene to know they've had a fair election. That's what it's all about - that's what it's always been about."

Hosack also denied Kelso's motion for an amended complaint that alleged "fraud or corruption" in the city's Nov. 3 general election. Hosack said "colorful language" didn't change the issue at hand, nor did arguments whether the city had the proper authority to delegate the election to Kootenai County. The latter point has been discussed, and decided, in other hearings, and the city was in the right to do so, he said.

That means the new affidavits, and questioned absentee ballot counts, will be sorted as fact or not during trial.

Among those recent filings are questions about the different numbers of counted absentee ballots the Kootenai County Elections Office received during the election.

According to different printouts of the final tallies, the total count ranged from 2,041 to 2,051, with various numbers voided or allegedly counted twice. The 2,051 number is the total the office used in its final count.

But Kelso said the 2,041 number on other reports leaves 10 unaccounted ballots - double the amount of the five vote difference that separated Brannon and Kennedy. Kelso's affidavit said that the ballots were "stuffed" and he reiterated that stance in front of Hosack.

"I've held off all these months," he said, of claiming fraud, but added the county or elections office never accounted for the difference in counts. "There's no drop dead number of absentee ballots to be counted."

Hosack said he didn't know what that difference in number meant. But the county is not party to the suit, so alleging fraud isn't warranted now.

"Who are the evil doers?" he asked. "That's just not there ... Let's focus on what we're going to focus on."

That focus will be for Brannon to prove that Kennedy's win included five or more illegal votes, which will be determined at trial.

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Welcome to the discussion.


  • Bumblebee posted at 3:13 pm on Thu, Sep 2, 2010.

    Bumblebee Posts: 104

    Public opinion and a judge's opinion are two very different things. Reading the tea leaves, Hosack is going to rule on Kennedy's side. Sorry to break your heart Stebbijo

  • stebbijo posted at 11:32 am on Thu, Sep 2, 2010.

    stebbijo Posts: 49

    Not on the tallest stack of law books, rules, or court cases will the SOS, Clerk, ect.ect.ect ever get the public to swallow those votes from Canada and California as legal - not in a million years and niether will they convince Judge Hosack.

  • Bumblebee posted at 9:17 pm on Wed, Sep 1, 2010.

    Bumblebee Posts: 104

    No election is perfect. There are always mistakes. That doesn't equal fraud and corruption. So far, your opinions have not been supported by the facts. I can't wait for the trial to get here. Judge Hosack is already hinting at what lies ahead and it isn't favorable for you and your fellow believers. Can Jim prove that five people voted Brannon when they shouldn't have been allowed to. I don't think he can, but the trial will answer it. Not forcing the people who live in Canada to testify is a huge problem for Jim.

  • Mary Souza posted at 8:12 pm on Wed, Sep 1, 2010.

    Mary Souza Posts: 808

    I don't care whether the city council or anyone else agrees with my viewpoint. I'm putting out the most accurate information I can find and expressing my opinion on it. That's all. It is obvious that Team Kennedy is worried because they are not addressing the crux of the election problems. Instead, they are desperately searching for a way to block the testimony and/or the trial. They don't want the facts to be known!

  • Thaddeus posted at 7:45 pm on Wed, Sep 1, 2010.

    Thaddeus Posts: 232

    And who might that be STP?

  • sharetheplanet posted at 7:24 pm on Wed, Sep 1, 2010.

    sharetheplanet Posts: 809

    CdA city council members must be pretty scared since all they can do is come here AGAIN trying their old tactics of defame and discredit. SHAME SHAME SHAME.

  • Thaddeus posted at 6:18 pm on Wed, Sep 1, 2010.

    Thaddeus Posts: 232

    Maybe Souza will offer up some of her "Secret" tapes as evidence.

  • Bumblebee posted at 5:51 pm on Wed, Sep 1, 2010.

    Bumblebee Posts: 104


    The deranged rantings of the Brannnon supporters doesn't make them true. Brannon is going to lose. Tell me why anybody at the city should care what you say since you and the rest of your ilk have been proven wrong over and over again.

  • Bumblebee posted at 5:38 pm on Wed, Sep 1, 2010.

    Bumblebee Posts: 104

    For months you and Mary have been predicting Brannon would prevail because of rigged election. Charges of corruption and fraud sprang from your mouth. Now when the rubber starts to hit the road and there is no proof and the judge tells you don't have enough, you change the predicted outcome. In cases like this, you sue everybody including the subcontractor. If a contractor messed up a remodel on your home you would sue the subs too. Starr kelso messed the bed and now Jim brannnon looks like a total idiot.

  • Dan Gookin posted at 4:53 pm on Wed, Sep 1, 2010.

    Dan Gookin Posts: 731

    It's the City's election. The county was a subcontractor. You don't sue the subcontractor, you sue the person who hired them, who is *responsible* for the job.

    The City doesn't take ownership of this election, so they pass the buck to the county. The county can't take ownership because they were hired as a contractor. It is the city who should be upset with the sloppy job the county did. But, oh yeah, that's right: The election results were agreeable to the powers that be. So they didn't complain. (How different it would be had Brannon won, but unlike Kennedy, Brannon would have insisted on an investigation.)

    Too bad the city and the Good Ol' Boys can't sweep it under the rug like in the old days.

    No, my Bumble, this thing is going to trial. Testimony will be heard, evidence given. The public will know what happened. I don't think the judge will order a new election, but the people of Coeur d'Alene will harbor serious doubts as to the legitimacy of their city government. Rightfully so.

  • Bumblebee posted at 1:29 pm on Wed, Sep 1, 2010.

    Bumblebee Posts: 104

    If you're going to allege corruption and fraud as Brannon has done why not drag the people who ran the election into the lawsuit to answer for those alleged crimes. The Late Loius Nizer's logic falls short. Good luck proving Mike Kennedy stuffed the ballot box or the city somehow circumvented the county election process. Dropping the county was a fatal and stupid error. Brannon's attorney sucks.

  • The Late Louis Nizer posted at 12:09 pm on Wed, Sep 1, 2010.

    The Late Louis Nizer Posts: 188


    Your question why the county was dropped was asked and answered months ago. The county could offer no remedy, meaning it could not order a new election.

  • Bumblebee posted at 10:14 am on Wed, Sep 1, 2010.

    Bumblebee Posts: 104

    And Mary, the attorney can say anything he wants -- the proof is in the pudding. So far, Mr. Kelso hasn't proved a thing.

  • Bumblebee posted at 10:13 am on Wed, Sep 1, 2010.

    Bumblebee Posts: 104

    I think Jim Brannon is going to regret the day he allowed his attorney to drop Kootenai County from the lawsuit. Mary can you explain why this happened?

    Jim is going to lose and lose badly.

  • curiouser posted at 10:02 am on Wed, Sep 1, 2010.

    curiouser Posts: 81

    Well, Mary, apparently the Judge "misses the point," too. Read the last 2 paragraphs of the press article.

    Why do you say the city, county, etc aren't interested in "fair elections?" Could it be that they just don't buy YOUR definition of "fair election?" Is that defined by your candidate winning? Maybe they are standing for "fair elections" by defending the system/processes/procedures they have always followed, followed for the '09 election, and affirm to this day?

    As for Kelso's "bold" statements, I think Hosak just called that "colorful language."

    10 months later and Kelso can't present anything to "convince" the judge? Brannon says "I think we have some work to do in the next couple of weeks." What on earth have you all been doing for the last 10 months?

    I kept an open mind until now, but golly, folks, this is horse pucky!

  • DeNiles posted at 9:33 am on Wed, Sep 1, 2010.

    DeNiles Posts: 2450

    Accurate and fair elections are a cornerstone of our form of governing. Any candidate who knowingly manipulates or abuses the election process makes for the worst candidate. Why is Kennedy so intent on not investigating voter questions that are obviously valid enough to take to trial? Wouldn't an honest politician want the votes to be done properly? Why isn't the Mayor just as intent on insuring accurate voting?

  • Mary Souza posted at 9:31 am on Wed, Sep 1, 2010.

    Mary Souza Posts: 808

    You seem to be missing the point: This Election Challenge is about the reliability of our local election system. Research shows gross disorganization, sloppy administration in the election and now, yesterday, in court, Attorney Kelso boldly stood and stated to the judge that evidence points to "BALLOT STUFFING", FRAUD and CORRUPTION".

    How can this not be important for every single voter in Kootenai County?

    And why are our elected officials, like Mike Kennedy and Dan English not openly concerned about the citizens of CdA and ensuring that our voting system is honest & efficient? Instead, they are actively working to keep this challenge from going to trial. What are they worried about? What are they so desperately trying to hide?

  • Randy Myers posted at 8:42 am on Wed, Sep 1, 2010.

    Randy Myers Posts: 1635

    uhh Take.....

    I think the idea here has to do with justice. Anytime you "sue" or bring suit you are suing a taxpayer. While I don't agree with Brannon I support his RIGHT under our laws to do so. He has to pay for his legal expenses. Since he didn't get elected is he STILL a politician ? Hard to vote a guy out who didn't get in ehh ? I guess if he runs against Kennedy again you will vote for Mike. A good choice in my opinion.

  • curiouser posted at 8:38 am on Wed, Sep 1, 2010.

    curiouser Posts: 81

    So I have been watching this and been, well, curious. I have just not been able to see if there is any "there" there. LOTS of talk about the "delays." LOTS of talk pre-judging this case. Aint it awful . . .

    And here comes the judge, "I have not been convinced."

    Kelso, if you got it, why didn't you bring it? Kelso, if you haven't got in in 10 months, are you going to get it in the next two weeks? What have you been DOING for 10 months if not trying to establish a case? Brannon, I hope Kelso gave you a money-back guarantee.

    How much has this cost the community as a whole: city, county taxpayers, Brannon supporters, Kennedy supporters?

    Boys, maybe you should drop this before the expense of a trial.

  • TakeBackTheUSA posted at 5:28 am on Wed, Sep 1, 2010.

    TakeBackTheUSA Posts: 765

    Any politician that sues the taxpayers, FOR ANY REASON, deserves their wrath next election. NO one like that should hold public office.

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