Ffcl Version of June 3

1 THE HONORABLE JOHN E. BRIDGES 2 3 4 5 6 7 SUPERIOR COURT OF THE STATE OF WASHINGTON 8 FOR CHELAN COUNTY 9 10 Timothy Borders et al., 11 NO. 05-2-00027-3 12 Petitioners, 13 WASHINGTON STATE DEMOCRATIC 14 v. CENTRAL COMMITTEE'S 15 [PROPOSED] SUPPLEMENTAL 16 King County et al., 17 FINDINGS OF FACT AND 18 CONCLUSIONS OF LAW 19 Respondents, 20 WSDCC'S [PROPOSED] FINDINGS OF FACT AND 21 and CONCLUSIONS OF LAW 22 23 Washington State Democratic Central 24 Committee, 25 26 Intervenor-Respondent. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW Seattle, Washington 98101-3099 Phone: (206) 359-8000 15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 CONTENTS 3 4 I. FINDINGS OF FACT...... 1 5 6 A. Petitioners' Claims Regarding Provisional Ballots and Polling Place 7 Discrepancies...... 1 8 9 10 B. Petitioners' Claims Regarding Absentee Crediting...... 8 11 12 C. Findings Regarding Expert Testimony and the Application of 13 Proportionate Deduction...... 11 14 15 II. CONCLUSIONS OF LAW...... 13 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - i Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 I. FINDINGS OF FACT 3 4 Intervenor-Respondent WSDCC ("WSDCC") supplements its proposed findings in 5 6 three areas and updates its proposed conclusions of law. If the Court would find helpful a 7 8 more complete set of findings and conclusions, Respondent can provide such on short 9 10 notice. 11 12 A. Petitioners' Claims Regarding Provisional Ballots and Polling 13 Place Discrepancies 14 15 1. A provisional ballot must be issued to any person whose name does not 16 17 appear in the poll book. RCW 29A.04.008(5); WAC 434-253-043. Under federal law, 18 19 every county in the state is required to provide voters a real opportunity to vote by 20 21 provisional ballot even if they are not shown to be a registered voter in the poll book in a 22 23 polling place. 42 U.S.C. § 15301. 24 25 2. Although the State of Washington had experience with "special ballots," the 26 27 use of provisional ballots in the 2004 general election exceeded both historical levels and the 28 29 expectation of election workers in many counties. See WAC 434-253-043 to -049 (2002) 30 31 (amended 2004). 32 33 3. Provisional ballot voters sometimes cast the provisional ballots directly into 34 35 the tabulating machine or ballot box rather than returning it to the poll worker for placement 36 37 into the two envelopes (security and verification) that precinct election officials transmit to 38 39 the auditor for verification of the voter's registration status and signature before the ballots 40 41 are counted. WAC 434-253-043; WAC 434-253-047; see also WAC 434-253-045 (listing 42 43 information required on outer envelope, including voter's name, signature, and date of birth 44 45 among other information). In many counties, such as Adams, Benton, King, Kittitas, 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 1 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 Stevens, and Walla Walla, provisional ballots are indistinguishable from regular polling 3 4 place ballots. King County poll workers were instructed to crease the ballot to try to avoid 5 6 inadvertent casting of the ballot by voters. Tr. Vol. 2, 420:16-426:23 (Testimony of Bill 7 8 Huennekens). Chelan County and some others print provisional ballots on different colored 9 10 paper or make them distinguishable from other poll ballots in other ways. In counties using 11 12 poll boxes, different color ballots may allow election officials to distinguish provisional 13 14 ballots that have been dropped directly into the ballot box from other poll ballots. 15 16 4. It was not illegal during the 2004 election for counties to use the same ballots 17 18 for provisional and poll voters.1 Even if, with the benefit of hindsight, the Court disagrees 19 20 with the judgment of King and other counties that using different provisional ballots was too 21 22 complicated and might have unintended and unfortunate consequences (as the switch to the 23 24 newest DIMS software shows), that difference in judgment does not render their conduct 25 26 illegal or legally erroneous. See Testimony of Greg Kimsey, Clark County Auditor 27 28 (Tr. Vol. 5, 1073:4-8); Dean Logan, Director of Records and Elections, King County 29 30 (Tr. Vol. 7, 1416:10-23, 1486:14-1487:9); Bob Terwilliger, Snohomish County Auditor 31 32 (Tr. Vol. 6, 1343:8-15). 33 34 35 36 37 38 39 40 1 The law at the time of the 2004 general election did not require provisional ballots to be 41 distinguishable from any other ballots, but the Legislature recently enacted a new section to RCW 42 29A.36 that requires provisional ballots and absentee ballots to be visually distinguishable from each 43 other and to be "either: (1) Printed on color paper; or (2) Imprinted with a bar code for the purpose of 44 identifying the ballot as a provisional or absentee ballot." 59th Leg., 2005 Reg. Sess., Act of May 3, 45 2005, ch. 243, 2005 Wash. Legis. Serv. Ch. 243. The Legislature also changed the law to require 46 that "[p]rovisional and absentee ballots must be incapable of being tabulated by poll-site counting 47 devices." Id.

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 2 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 5. In at least eleven counties, election officials inadvertently allowed "misfed" 3 4 provisional ballots to be counted before verification was completed or failed to verify 5 6 signatures before counting provisional ballots that were properly returned in their envelopes. 7 8 6. Based upon the work of the canvassing team, King County concluded that 9 10 348 provisional ballots likely were placed directly into the poll site tabulators. Tr. Vol. 2, 11 12 354:4-5 (Testimony of Bill Huennekens). Of these 348 ballots, King County determined 13 14 that 252 were cast by properly registered voters who had not otherwise cast a ballot in the 15 16 election. 17 18 7. In addition to misfed provisional ballots, some counties failed to do the 19 20 required comparison on the signature on the provisional ballot envelope with the signature 21 22 on the voter's registration. This was election official error. The individuals who cast 23 24 unvalidated provisional ballots or misfed provisional ballots in these other counties are 25 26 identified on Exhibit A attached hereto. The counties are: 27 28 Adams County. Tr. Vol. 5, 1158:11-1160:3, 1163:5-16 (as a matter of policy, did not 29 30 check signatures on provisional ballots prior to counting) (Testimony of Nancy 31 32 McBroom, Adams County Auditor); TX 7772; TX 7925. 33 34 Benton County. Tr. Vol. 5, 1178:22-1179:16 (Testimony of Brenda Chilton, Benton 35 36 County Chief Deputy Auditor); TX 7926, 7980, 7981. 37 38 Clark County. Tr. Vol. 5, 1074:10-20, 1085:9-18 (Testimony of Greg Kimsey, Clark 39 40 County Auditor). 41 42 Cowlitz County. Tr. Vol. 5, 1140:13-1141:10 (Testimony of Kristina Swanson, 43 44 Cowlitz County Auditor); TX 7780, 7785. 45 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 3 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 Island County. Tr. Vol. 5, 1113:24-1114:6, 1119:13-15 (Testimony of Anne 3 4 LaCour, Island County Chief Deputy Auditor); TX 7789. 5 6 Kittitas County. Tr. Vol. 5, 1090:8-1091:18, 1092:3-8, 1093:3-13, 22-25, 7 8 1094:7-1095:9, 1096:20-1097:4 (Testimony of Sue Higginbotham, Kittitas County 9 10 Deputy Administrator); TX 7799, 7979, 7800. 11 12 Pierce County. Joint Designation of the CR 30(b)(6) Deposition of Pierce County 13 14 at 12:19-13:21, 92:15-93:10, 94:12-95:15; TX 7932, 8047. 15 16 Spokane County. Tr. Vol. 5, 1102:19-1103:5, 1104:20-1105:8 (Testimony of Vicky 17 18 Dalton, Spokane County Auditor); TX 7818. 19 20 Stevens County. Tr. Vol. 5, 1123:20-1124:3, 1127:16-1129:12, 1129:13-1131:4 (as a 21 22 matter of policy, did not check signatures on provisional ballots prior to counting) 23 24 (Testimony of Tim Gray, Stevens County Auditor); TX 7826, 7827. 25 26 Walla Walla County. Tr. Vol. 5, 1146:7-9, 1147:1-5 (as a matter of policy, did not 27 28 check signatures on provisional ballots prior to counting), 1154:6-1155:3 (Testimony 29 30 of Karen Martin, Walla Walla County Auditor); TX 7831, 7936. 31 32 8. Even if it was election official error that caused misfed provisional ballots to 33 34 be cast directly at the polling place, the Court is neither inclined nor authorized to 35 36 disenfranchise qualified, registered voters in these circumstances. As the Walla Walla 37 38 County Auditor testified, there is no reason to disqualify a qualified, registered voter who 39 40 had not otherwise voted merely because the voter placed the provisional ballot envelope 41 42 directly into the ballot box. Tr. Vol. 5, 1146:2-18 (Testimony of Karen Martin). The 43 44 evidence showed that the overwhelming majority of claimed illegal provisional ballot votes 45 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 4 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 are ballots that were cast by qualified, registered voters, and the outcome of this election 3 4 should not be determined by throwing out the ballots of qualified, registered voters. 5 6 9. Even if the Court were to find the misfed provisionals from registered voters 7 8 were illegal and use proportionate deduction, however, the result is the same. Provisional 9 10 ballots are intended to be cast by voters outside the county or precinct where that voter 11 12 resides, and so the precinct in which the vote was cast does not reveal anything about the 13 14 voting preference or demographics of the particular voter unless registered in the precinct. 15 16 Because the voters of this State voted for Governor Gregoire and Mr. Rossi in virtually 17 18 identical numbers, the Court finds that, in the absence of information about the particular 19 20 voter who cast a provisional ballot, there is no basis – even under a proportionate reduction 21 22 theory – for believing such a ballot was voted for any particular candidate or even any 23 24 candidate at all in the Governor's race. In the absence of such information, the Court finds 25 26 that such a ballot is the same as a lawful vote and had no effect on the outcome of the race. 27 28 10. The other polling place discrepancies alleged by Petitioners in King County 29 30 do not prove any improperly counted ballots. During the canvass and in the course of this 31 32 litigation, King County worked to resolve discrepancies in the reconciliation of votes cast at 33 34 its 540 poll sites. The testimony indicated that such discrepancies are not unusual in any 35 36 county. In the course of that work, King County produced a spreadsheet which was 37 38 admitted as Trial Exhibit 36. This spreadsheet indicates that because the label from the 39 40 provisional ballot envelope had not been transferred to another document, see Tr. Vol. 7, 41 42 1437:10-1438:4 (Testimony of Dean Logan); TX 8013 (provisional ballot envelope), an 43 44 additional 437 provisional ballots might have been cast directly into the poll site tabulators. 45 46 Tr. Vol. 2, 374:16-375:12; 377:19-23 (Testimony of Bill Huennekens). However, the 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 5 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 testimony indicated that this list of additional 437 was based on the best "guess work" of the 3 4 election workers, after the fact, and that there were alternative explanations for the 5 6 discrepancies noted in King County's records. 7 8 11. The total of all precinct positive discrepancies (more votes tallied in the 9 10 machines than poll book signatures) was 1,156. Tr. Vol. 7, 1664:2-5 (Testimony of Linda 11 12 Sanchez). However, the evidence showed that a substantial number of these discrepancies 13 14 were explained by a factor referred to as cross-over. Every ballot is coded for a particular 15 16 precinct and, when tabulated, is attributed to that precinct. However, because there are 17 18 usually many precincts at a polling place, there are many reasons why a voter might receive 19 20 a ballot coded for a different precinct than the precinct in which the voter is registered, 21 22 including poll workers mixing up their stacks of ballots or running out of one precinct's 23 24 ballots and borrowing from another. The Court notes that such discrepancies were not 25 26 unique to King County but are of a nature that would happen anywhere and in any election. 27 28 E.g., Tr. Vol. 5, 1117:13-1119:7 (Testimony of Anne LaCour, Island County Auditor). For 29 30 example, person registered in one precinct at a polling place might sign her name in the poll 31 32 book at the correct precinct (and get credited with voting in that precinct, causing a negative 33 34 discrepancy in that precinct), but be given and vote a ballot from another precinct at the 35 36 same polling place (causing a positive discrepancy there). Tr. Vol. 2, 294:1-8 (Testimony of 37 38 Evelyn Arnold, Chelan County Auditor); Tr. Vol. 5, 1141:11-1142:7, 1144:14-1445:1 39 40 (Testimony of Kristina Swanson, Cowlitz County Auditor); Tr. Vol. 2, 412:19-25, 435:2-20 41 42 (Testimony of Bill Huennekens) It would be misleading to consider the sum of the positive 43 44 discrepancies without taking into account the negative discrepancies. Tr. Vol. 5, 1141:11- 45 46 1142:7, 1144:14-1445:1 (Swanson). 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 6 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 12. At trial, Petitioners asserted that the spreadsheet mentioned above supported 3 4 a claim that there were 1,156 more votes than voters at the polls. However, these ballots and 5 6 the names of those who may have cast them were never disclosed in accordance with the 7 8 Court's pretrial order or the requirements of RCW 29A.68.100, which provides that "[n]o 9 10 testimony may be received as to any illegal votes unless the party contesting the election 11 12 delivers to the opposite party, at least three days before trial, a written list of the number of 13 14 illegal votes and by whom given, that the contesting party intends to prove at trial." 15 16 (Emphasis added). Petitioners' pretrial disclosure of April 15 disclosed only 317 of the 17 18 1,156 allegedly illegal votes, and these were voters in King County's list of 348 misfed 19 20 provisional ballots. 21 22 13. Petitioners did not present sufficient evidence to support a finding of more 23 24 than 352 misfed provisional ballots in King County, of which 252 came from registered 25 26 voters that had not cast another ballot. Petitioners' claim regarding "improperly cast" 27 28 provisional ballots counted by King County rested on faulty assumptions and inferences 29 30 based on inadmissible hearsay, accounting discrepancies, and crediting discrepancies. 31 32 Without direct evidence, Petitioners relied on second, third, and sometimes fourth-hand 33 34 summaries prepared weeks after the fact. This evidence did not amount to the necessary 35 36 evidence that any of the votes were improperly counted for either of the candidates involved 37 38 in this election contest. 39 40 14. WSDCC also proved that election official errors were made in King County, 41 42 which erred in not counting lawful votes in three different categories: (a) four provisional 43 44 ballots labeled "research needed" because King County could not find the registration record 45 46 for these voters; (b) 47 absentee ballots referred to as "no signature on file" (NSOF) ballots 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 7 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 because King County lost or misplaced the registration records for these voters; and six 3 4 provisional ballots not counted because King County election officials erred in failing to 5 6 forward the ballots of these individuals to the counties to which King County knew that 7 8 these voters had moved.2 The voters whose lawful votes were not counted by King County 9 10 are identified in Exhibit B. 11 12 B. Petitioners' Claims Regarding Absentee Crediting 13 14 15. Petitioners contend that comparison of the King County voter registration 15 16 database to the precinct by precinct manual recount results indicates that the number of 17 18 registered voters who received credit for casting an absentee ballot is less than the number of 19 20 absentee ballots that were tabulated. It appears that, following the manual recount, 565,014 21 22 absentee ballots were tabulated by King County and that King County's DIMS voter 23 24 registration database reflects only 564,206 voters whose histories had, as of early January, 25 26 been credited with voting an absentee ballot. Tr. Vol. 3, 682:5-24 (Testimony of Clark 27 28 Bensen).3 This would appear to indicate a discrepancy between credits and ballots of 808. 29 30 Id. 682:25-3. However, the parties agree that 320 of the absentee ballots counted by King 31 32 33 2 34 The Court heard testimony that Spokane County counted five provisional ballots for which 35 it had no signature on file, and that Stevens County forwarded provisional ballots to the counties to 36 which it knew such voters had moved. Tr. Vol. 5, 1108:2-19 (Testimony of Vicky Dalton, Spokane 37 County Auditor); Tr. Vol. 5, Tr. 1134:22-1135:3 (Testimony of Tim Gray, Stevens County Auditor). 38 39 3 The Court has admitted the testimony of Clark Bensen as to this subject solely as it relates 40 to the representation by Petitioners' counsel that Mr. Bensen's testimony would be strictly limited to 41 numbers present on a set of diskettes obtained from King County. Counsel stated that Mr. Bensen is 42 "going to express no opinion other than this data set from King County has this number in it. [He's] 43 not going to tell you what the data set means. [He's] going to say what the numbers are on the data 44 set." Tr. 675:23-676:5. To the extent that Mr. Bensen's testimony went beyond testifying as a lay 45 witness as to what the numbers are on the data set, the testimony is stricken. As the Court noted 46 during trial, this "witness is just walking a very fine line between a lay witness and an expert witness. 47 The saying is trying to lick honey from the edge of a razor blade, I think." Tr. Vol. 3, 677:3-6.

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 8 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 County are either federal write-in ballots (251 ballots) or address confidentiality ballots (69 3 4 ballots). Id. 682:5-10. Voters casting such ballots do not appear in the DIMS database and 5 6 thus no credit will be found in that database related to their ballots. After accounting for 7 8 these 320 ballots, there remains an apparent discrepancy of 488 between credited voter 9 10 histories and ballots tabulated. 11 12 16. Petitioners contend that the absentee ballot credit discrepancy should be 13 14 increased by 292 because, they assert, 292 of the credits in the database relate to absentee 15 16 ballots rejected post-validation because they were from the wrong election or were multiple 17 18 ballots. However, it appears from the undisputed testimony of Nicole Way that such ballots 19 20 are challenged at the time of opening and do not result in any credit being issued to a voter. 21 22 Nicole Way Dep. 50:8-51:22. The Court finds that the apparent 488 ballot credit 23 24 discrepancy should not be increased by 292 as Petitioners contend. 25 26 17. The Court has previously ruled that voter crediting is a post-election 27 28 administrative exercise that does not bear on the authenticity of the election. Petitioners 29 30 contend that absentee voter crediting is not merely an administrative exercise because the 31 32 crediting of absentees during canvassing is a safeguard that prevents a voter from casting 33 34 both an absentee ballot and a provisional ballot. That safeguard is implemented in King and 35 36 other counties that use the DIMS system by means of return date codes for absentee ballots 37 38 rather than "crediting." 39 40 18. King County does not process any provisional ballot received from a voter 41 42 who has returned an absentee ballot. In addition, King County postpones the processing of 43 44 any provisional ballot received from a voter who has been issued an absentee ballot until the 45 46 time has passed for absentee ballots to be returned. Carlos Webb Dep. 237-38; see also Tr. 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 9 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 Vol. 6, 1370:3-19 (Testimony of Bob Terwilliger, regarding Snohomish County's 3 4 procedures with DIMS). Voter registration histories are automatically flagged by the system 5 6 when absentee ballots are issued to a voter and when a ballot is returned by the voter. 7 8 Crediting of absentee voter registration histories in King County plays no part in the 9 10 prevention of double voting and is, in that county and several others, a post-election 11 12 administrative exercise that does not bear on the authenticity of the election. After the 13 14 conclusion of the election, voting histories are updated based upon the information in the 15 16 DIMS system regarding whether an absentee ballot was returned and whether there are any 17 18 challenge codes associated with the ballot. Garth Fell Dep. at 209:1-5. Prior to that time, 19 20 the status of their absentee ballots were indicated by other data in the database which data is 21 22 eventually used to determine whether to credit the voter's history. The disposition of 23 24 challenge codes is recorded on the absentee ballot outer envelope and the challenge codes in 25 26 the DIMS computer system are then manually removed from the associated absentee ballot's 27 28 record. Because voter history records are subsequently credited by a computer program that 29 30 checks for the absence of challenge codes, a voter whose ballot is eventually properly 31 32 counted may not be credited with voting in the county's voter registration database due to 33 34 human error in failing to remove all challenge codes from the computer system as they are 35 36 cleared. 37 38 19. Thus, an apparent discrepancy between absentee ballots tabulated and 39 40 absentee voter histories credited does not indicate that any double voting or unauthorized 41 42 voting has occurred. At numerous points in the processing of absentee ballots in a DIMS 43 44 system, challenge flags or codes are entered which, unless removed, will prevent a voter 45 46 history from being credited. An absentee ballot that has been held up to resolve a challenge 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 10 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 code can be cleared and counted but, due to operator error, the challenge codes may not be 3 4 fully removed. The result is an excess of valid ballots counted over credits. Tr. Vol. 6, 5 6 1351:8-1352:7 (Testimony of Bob Terwilliger). Petitioners have not offered any evidence 7 8 beyond the mere presence of a credit discrepancy to show that an apparent discrepancy of 9 10 583 between absentee ballots counted and absentee voters credited, out of more than 11 12 565,000 ballots counted, is anything other than inadvertent error. 13 14 20. The Court finds that Petitioners did not establish that 583 (or, as Petitioners' 15 16 trial brief alleged, 875) illegal absentee ballots were counted. Likewise, Petitioners have not 17 18 established election official error in the processing of absentee ballots in King County that 19 20 materially changed the result of the 2004 gubernatorial election. 21 22 C. Findings Regarding Expert Testimony and the Application of 23 Proportionate Deduction 24 25 21. The Court finds that the data on which Petitioners' experts, Professors Gill 26 27 and Katz, relied was not a complete census of illegal votes, nor was it a random or scientific 28 29 sample of illegal votes within the State of Washington. In particular, Petitioners' data was 30 31 overly weighted to include allegedly illegal votes from King County, particularly in 32 33 precincts in which Governor Gregoire prevailed. This is not consistent with generally 34 35 accepted scientific standards, and there was no proof that illegal voting by felons or others 36 37 was more likely to occur in King County than any other county, in light of the distribution of 38 39 felons around the State. Relying on any party's selection of illegal voters, when it is clear 40 41 that there are many more that could have been identified, creates the risk that the Court 42 43 might make an erroneous determination that someone other than the certified winner of the 44 45 election received the most lawful votes in the State, and risks substituting the Court and the 46 47 litigation process for the will of the people and the election process.

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 11 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 22. The Court finds that the statistical methods used in the reports of Professors 3 4 Gill and Katz depend on an assumption that determines the outcome they obtain. In 5 6 particular, they depend on the assumption, without any collateral indication of validity, that 7 8 illegal voters in a precinct vote for a candidate with a probability equal to the overall 9 10 distribution of votes in the precinct among candidates. 11 12 23. Petitioners failed to support that assumption with proof, and the Court finds 13 14 that the assumption relied upon by Professors Gill and Katz has not been generally accepted 15 16 in their field of science. The "principle of insufficient reason" was not shown to be 17 18 scientifically accepted as a substitute for evidence or other scientific proof in these 19 20 circumstances. While it can be speculated that illegal voters might tend to vote like their 21 22 precincts, there is no certainty of that, and the level of uncertainty is unacceptable when the 23 24 Court is faced with the possibility of overturning a certified election. 25 26 24. The Court finds that the method of proportionate deduction and the 27 28 assumption relied upon by Professors Gill and Katz are a scientifically unaccepted use of the 29 30 method of ecological inference. In particular, Professors Gill and Katz committed what is 31 32 referred to as the "ecological fallacy" in making inferences about a particular individual's 33 34 voting behavior using only information about the average behavior of groups (in this case, 35 36 voters assigned to particular precincts). The ecological fallacy leads to erroneous, 37 38 misleading results. Petitioners' attempts to recast their experts as employing something 39 40 other than ecological inference do not remove the "ecological fallacy" from their opinions. 41 42 25. Election results vary significantly from one similar precinct to another, from 43 44 one election to another in the same precinct, and among different candidates of the same 45 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 12 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 party in the same precinct. Felons and others who vote illegally are not necessarily the same 3 4 as others in the precinct. 5 6 26. The only voters who testified at trial gave credible testimony that they voted 7 8 for Rossi or Bennett, yet the proportionate reduction method advocated by Petitioners and 9 10 their experts would have partially deducted these votes from Governor Gregoire's total 11 12 because these individuals lived in Gregoire-leaning precincts. 13 14 27. The Court finds that the statistical methods used in the reports of Professors 15 16 Gill and Katz ignore other significant factors in determining how a person is likely to vote. 17 18 In this case, in light of the candidates, gender likely was a significant factor. The illegal 19 20 voters were disproportionately male, and less likely to have voted for the female candidate. 21 22 28. The Court finds that Petitioners' experts did not establish with sufficient 23 24 certainty that illegal votes or election official errors changed the outcome of the election. 25 26 29. The Court finds that Petitioners did not offer credible evidence that more 27 28 illegal votes were cast for Governor Gregoire than were cast for Mr. Rossi and accordingly 29 30 Petitioners have failed to make even a prima facie case of election contest based on illegal 31 32 votes. 33 34 30. The Court finds that Petitioners did not offer credible evidence that election 35 36 official errors caused Governor Gregoire to be issued a certificate of election when she did 37 38 not have the highest number of lawful votes 39 40 31. The Court finds that Governor Gregoire's certificate of election was not 41 42 issued irregularly or in error. The Court finds that Governor Gregoire was duly elected and 43 44 certified as Governor of the State of Washington. 45 46 47

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 13 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 II. CONCLUSIONS OF LAW 2 3 1. According to the Washington Supreme Court: "Election contests are 4 5 governed by several general principles. Chief among them is the principle, long followed by 6 7 this court, that the judiciary should 'exercise restraint in interfering with the elective process 8 9 which is reserved to the people in the state constitution.' Unless an election is clearly 10 11 invalid, 'when the people have spoken, their verdict should not be disturbed by the 12 13 courts . . . .' In adhering to this principle of judicial restraint, this court has adopted the rule 14 15 that an 'informality or irregularity' in an election which did not affect the result is not 16 17 sufficient to invalidate the election. Statutory provisions relating to conduct of an election, 18 19 such as requirements for notice, have been held to be directory only, and even though not 20 21 followed precisely, will not render an election void."4 22 23 2. Petitioners filed this election contest, and they bear the burden of proof. 24 25 Their burden of proof is to prove by clear and convincing evidence that illegal votes and 26 27 election official error materially changed the result in the gubernatorial election.5 28 29 3. Petitioners also bear the burden of establishing that the election of Christine 30 31 Gregoire as Governor was clearly invalid.6 32 33 4. The clear and convincing standard reflects the extraordinary nature of relief 34 35 that Petitioners seek – to unseat a sitting Governor.7 36 37 38 39 40 4 Dumas v. Gagner, 137 Wn.2d 268, 283 (1999) (internal citations omitted). 41 42 5 See RCW 29A.68.070; RCW 29.68.110; see also RCW 29A.08.820 (To invalidate voter 43 registration, challenger must prove "by clear and convincing evidence that the challenged voter's 44 registration is improper."). 45 46 6 Dumas, 137 Wn.2d at 283; see also In re Contested Election of Schoessler, 140 Wn.2d 47 368, 383 (2000) (same).

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 14 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 5. Petitioners have not met their burden. They have not satisfied even the lower 3 4 standard of preponderance of the evidence.8 5 6 6. It is not enough to show that an error occurred. It is not enough to show that 7 8 129 or more errors occurred or that 129 or more illegal votes were cast. 9 10 7. Election officials and the certificate of election are entitled to a presumption 11 12 of regularity. Petitioners failed to rebut that presumption.9 13 14 8. As to Petitioners' claims of illegal votes under RCW 29A.68.110, Petitioners 15 16 failed to prove that an amount of illegal votes was given to Governor Gregoire that, if taken 17 18 from her, would reduce the number of Governor Gregoire's legal votes below the number of 19 20 votes given to Dino Rossi, after deducting from Rossi's total the number of illegal votes that 21 22 were given to him. 23 24 9. As to Petitioners' claims of election official error under RCW 29A.68.070, 25 26 Petitioners failed to prove that any election official error was sufficient as to procure 27 28 Governor Gregoire to be declared duly elected. It is not election official error to fail to 29 30 intercept every mistake that can happen in the process. 31 32 33 34 35 36 37 7 Dumas, 137 Wn.2d at 283; Hill v. Howell, 70 Wash. 603, 613 (1912) ("'An election 38 honestly conducted under the forms of law ought generally to stand[.]'") (internal citation omitted). 39 40 8 Even if they had met their burden, they would not be entitled to the remedy they sought in 41 the Petition, an order "directing that a new election be conducted as soon as practicable." The 42 Washington Constitution, Article III, § 10, does not permit this Court to order a new election for 43 governor this year, because no such election may be held until the next "general election." 44 45 9 Quigley v. Phelps, 74 Wash. 73, 77 (1913) ("Every presumption is in favor of the faithful 46 performance of official duty."); RCW 29A.08.810 (voter registration constitutes presumptive 47 evidence of ability to vote).

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 15 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 10. Petitioners did not allege or prove that any candidate or party procured or 3 4 participated in any mistaken act by election officials. Thus, under Hill, 70 Wash. at 613, the 5 6 Court finds that the votes must not be charged against either party. 7 8 11. Petitioners' expert testimony, offered by Professors Anthony M. Gill and 9 10 Jonathan N. Katz, failed to meet the standard of generally accepted scientific evidence 11 12 required by Frye, and so is inadmissible.10 Both Professors Gill's and Katz's testimony was 13 14 based on an assumption of "homogeneity" among voters from the same precinct—an 15 16 assumption that the illegal and legal voters from the same precinct voted in identical 17 18 proportions. Petitioners failed to demonstrate that this assumption has been generally 19 20 accepted in the scientific community, and they failed to introduce any evidence in support of 21 22 the assumption. 23 24 12. Petitioners' expert testimony further failed to meet the standard of ER 702 25 26 because it was not helpful to the Court, and is inadmissible on those grounds as well.11 The 27 28 homogeneity assumption Petitioners' experts made was not tested by Professors Gill or Katz 29 30 for reliability. Similarly, Petitioners provided Professors Gill and Katz an incomplete and 31 32 non-representative sample of illegal votes, heavily weighted toward King County, in which 33 34 Governor Gregoire prevailed. Because the sample examined was incomplete and biased, the 35 36 expert testimony was even more unreliable and therefore unhelpful to the Court.12 37 38 39 40 41 42 10 State v. Cauthron, 120 Wn.2d 879, 887 (1993) (citing Frye v. United States, 293 F. 1013 43 (D.C. Cir. 1923)). 44 45 11 ER 702; State v. Kalakosky, 121 Wn.2d 525, 541 (1993). 46 47 12 State v. Huynh, 49 Wn. App. 192, 196 (1987).

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 16 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 13. The circumstantial evidence on which Petitioners relied was insufficient to 3 4 prove, by clear and convincing evidence, for which candidate illegal voters voted in the 5 6 2004 gubernatorial election. Under Washington law, in the absence of timely and 7 8 substantiated allegations of fraud, an election contestant must prove for which candidate 9 10 illegal voters voted in order to carry their burden of proof, and Petitioners failed to do so 11 12 here.13 13 14 14. The Election Contest Petition did not allege fraud, which must be pled with 15 16 particularity under CR 9(b).14 The allegations made for the first time in Petitioners' trial brief 17 18 filed one court day before trial began are not sufficient to satisfy CR 9(b),15 and the Court 19 20 notes that Petitioners did not specifically allege fraud in any of their earlier (and numerous) 21 22 briefs filed with the Court in this case. 23 24 15. Petitioners' claim of fraud on the eve of trial was untimely, a violation of 25 26 CR 9(b),16 and precluded by the election contest statute, which requires that an election 27 28 29 13 Hill, 70 Wash. at 612. 30 31 14 32 Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 165 (1987) ("To determine 33 whether allegations of fraud satisfy CR 9(b), the court will consider only the complaint, and not 34 additional allegations made in the briefs."). 35 15 36 The Trial Brief stated at page 28 that "[t]here is ample evidence of fraud, and of the 37 opportunity for fraud." Similarly, Petitioners' opening statement, which of course is not evidence, 38 repeatedly alleged fraud. Tr. 7:16-18 ("This is a case of election fraud by the upper management of 39 the King County elections."); Tr. 32:18-19 ("outright fraud by high-ranking King County elections 40 officials"). 41 42 16 Civil Rule 9(b) "ensures that plaintiffs seek redress for a wrong rather than use lawsuits as 43 pretexts to discover unknown wrongs." Haberman, 109 Wn.2d at 165. To satisfy the heightened 44 pleading requirements under Washington law, the circumstances of fraud should include the time, 45 the place, the substance of the false representations, the facts misrepresented, and the identification 46 of what was procured by the fraud. Id. ("A complaint adequately alleges fraud if it informs the 47 defendant of who did what, and describes the fraudulent conduct and mechanisms."). "The

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 17 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 contestant "set forth specifically . . . [t]he particular causes of the contest" "no later than ten 3 4 days following the issuance of a certificate of election." RCW 29A.68.030. The statute of 5 6 limitations for election challenges is clear and unyielding.17 Adding a new claim beyond the 7 8 statute of limitations is the functional equivalent of bringing a time-barred election 9 10 challenge. Both frustrate the public goal of finality of elections. 11 12 16. The Court nonetheless allowed Petitioners to present their evidence on this 13 14 claim. The Court concludes that, even if Petitioners' allegation of fraud had been timely and 15 16 specifically made, as required by Washington law, the evidence at trial did not show that any 17 18 fraud occurred. The Court rejects Petitioners' argument that "this case is the Foulkes case 19 20 except on a much larger scale." Tr. 15:22. The facts of Foulkes v. Hays, 85 Wn.2d 629 21 22 (1975), are clearly distinguishable. In Foulkes, ballots were "locked in canvas bags with the 23 24 key to each bag to the outside, and the bags were stored in a vault at the county auditor's 25 26 office." Id. at 631. Because the "keys to the padlocked sacks of ballots were accessible" 27 28 and, more importantly, because of evidence that "ballots had been altered between the time 29 30 of the original tally and the recount," id., the Washington Supreme Court upheld the setting 31 32 aside of the results of the election at issue in Foulkes. 33 34 35 36 37 38 39 40 complaining party must plead both the elements and circumstances of fraudulent conduct." Id. 41 Petitioners clearly failed to satisfy the dictates of CR 9(b) in this case. 42 43 17 Becker v. County of Pierce, 126 Wn.2d 11, 19 (1995) (noting that election contests are 44 governed by "strict" time limits); Reid v. Dalton, 124 Wn. App. 113, 122 (2004) (dismissing election 45 contest based on the "bright-line time limitation of elections challenges"). An election contest filed 46 outside the ten-day statute of limitations is untimely and should be dismissed. See Becker, 126 47 Wn.2d at 22.

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 18 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 17. In this case, there was no evidence that any ballots were altered, and, despite 3 4 intimations by Petitioners of ballot box stuffing and the disappearance of other ballots, no 5 6 such acts were shown to have occurred. 7 8 18. Foulkes was not simply a case of the "opportunity" for fraud, but was a case 9 10 in which ballots in fact were fraudulently altered. "Fraud is never presumed."18 The burden, 11 12 which rests squarely on the party alleging fraud, requires clear, cogent and convincing 13 14 evidence by the accuser to prove all the elements of fraud.19 Petitioners failed to do so here. 15 16 19. In this contest, which is based on allegations of illegal votes and election 17 18 official error, Petitioners were required to prove who received the highest number of illegal 19 20 votes. RCW 29A.68.050, .070, .110. Petitioners failed to do so. 21 22 20. RCW 29A.68.011 does not grant the Court power to base relief only on a 23 24 showing that the number of illegal votes exceeds the margin of victory. Election contests as 25 26 to the office of Governor rest solely on, and are limited by, the rights conferred by the 27 28 Legislature under statute.20 Neither RCW 29A.68.011 nor any other Washington election 29 30 contest statute provides for the exercise of judicial power when the contestant has failed to 31 32 show that he has received more legal votes than the certified winner of the election. The 33 34 35 36 37 38 39 40 18 Crandall v. Lee, 89 Wash. 115, 121 (1916); see also Pedersen v. Bibioff, 64 Wn. App. 41 710, 722 (1992). 42 43 19 Tokarz v. Frontier Fed. Sav. & Loan Ass'n, 33 Wn. App. 456, 463 (1982). 44 45 20 Becker, 126 Wn.2d at 18 ("Early this century we clearly established that the right to 46 contest an election 'rests solely upon, and is limited by, the provisions of the statute relative 47 thereto.'") (internal citations omitted).

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 19 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000 1 2 exercise of judicial power absent such a showing has only been exercised in local elections, 3 4 where the contestant has shown fraud, and neither of those circumstances is present here.21 5 6 21. The Election Contest Petition is hereby dismissed with prejudice. 7 8 9 DATED this ______day of June, 2005. 10 11 12 13 14 15 JOHN E. BRIDGES 16 CHELAN COUNTY SUPERIOR COURT JUDGE 17 18 Presented by: 19 20 PERKINS COIE LLP SPEIDEL LAW FIRM 21 Russell J. Speidel, WSBA # 12838 22 7 North Wenatchee Avenue, Suite 600 23 24 By /s/ Kevin J. Hamilton Wenatchee, WA 98807 Kevin J. Hamilton, WSBA # 15648 25 JENNY A. DURKAN 26 David J. Burman, WSBA # 10611 Jenny A. Durkan, WSBA # 15751 27 William C. Rava, WSBA # 29948 28 c/o Perkins Coie LLP 1201 Third Avenue, Suite 4800 1201 Third Avenue, Suite 4800 29 Seattle, WA 98101-3099 30 Seattle, WA 98101-3099 31 32 Attorneys for Intervenor-Respondent 33 Washington State Democratic Central 34 Committee 35 36 37 38 39 40 41 42 43 44 45 46 47 21 See Foulkes, 85 Wn.2d at 634.

WSDCC'S [PROPOSED] SUPPLEMENTAL Perkins Coie LLP FINDINGS OF FACT AND CONCLUSIONS 1201 Third Avenue, Suite 4800 OF LAW - 20 Seattle, Washington 98101-3099 Phone: (206) 359-8000 [15934-0006-000000/044efd1d37448e6ac44f4f6d682017a8.doc] Fax: (206) 359-9000