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.