Trial begins in Brannon city election challenge

COEUR d’ALENE — In a case that has limped along for more than 10 months, Monday was relatively action packed as Jim Brannon’s challenge of November’s city council election finally went to trial.

First District Judge Charles Hosack dismissed an 11th-hour motion to prevent him from presiding over the election challenge case, squashed an attempt to prohibit five potential witnesses from testifying, and trial officially began around 10 a.m. Monday.

Whether those five witnesses show up to testify remains to be seen.

Nevertheless, they are part of the 21 allegedly illegal voter names turned over by attorney Starr Kelso, on which the outcome of the contest may rely.

“We will show there were more than five voters who voted for (Mike) Kennedy,” Kelso said during opening arguments on the allegedly inadmissible ballots.

Enough, he said, to “impact the result of the election.”

City Council Seat 2 challenger Jim Brannon is challenging his five-vote loss to incumbent Mike Kennedy on grounds that inadmissible ballots had been included. A majority of those ballots are from citizens who allegedly listed addresses in which they do not reside in order to vote, the complaint states.

None of the 21 names testified Monday, as only Coeur d’Alene City Clerk Susan Weathers and Kootenai County Clerk Dan English took the stand on the trial’s first day.

That testimony, which resumes with English this morning at 9, focused on proper clerical handling of municipal, state and county election procedures — specifically how to properly document absentee ballot applications and envelope returns by the controlling office.

Kelso’s questions focused on how different reports provided by the Kootenai County Election’s Office document different number of absentee ballots counted.

Weathers testified she did not have direct oversight over the election, as it was contracted to Kootenai County. She said she did not question — or have reason to — the numbers the county tallied after the election of the total number of absentee votes. Those numbers were adopted by the City Council a week after the after the Nov. 3 election and showed there were 2,051 absentee ballots received. In other reports provided by the Kootenai County Election’s Office that number drops to 2,041.

“Where is this record?” Kelso asked English on the official report of the number of absentee applications requested, the number of ballots received, and the number of those ballots rejected.

Those figures are entered into a state electronic data base through the Secretary of State’s Office. There is not a hard copy in the elections or clerk’s office, English said.

English added that election staff verifies legal voters by checking their residency information in the state database, but as far as the handling of the absentee envelopes once they come in through the mail he wasn’t the person to ask.

“I didn’t supervise that part of the process,” he said, adding that federal regulations are different for legal abroad voters.

At the heart of the legal battle is what constitutes a legal city voter, and should allegedly illegal votes be thrown out if those terms are violated.

Kelso said the city and county clerks’ primary responsibility was to “maximize the correctness” of the election process to ensure those terms weren’t violated, if they were.

“We’re still looking to find somebody who knows what happened according to the law of the election,” he said following Monday’s testimony. “We’re not there yet.”

Included in Kelso’s complaint is a list of 53 names who live in crossed jurisdictions. It’s unclear which ballot, city or county, those voters received.

Kennedy’s attorneys have maintained that the election was conducted legally, and possible mistakes don’t warrant the complaint.

Kennedy’s attorney, Peter Erblund, said all Kelso had was “hypothesized” guesses as to what the different numbers meant.

But Kennedy’s other attorney, Scott Reed, had his motion to prevent the five out-of-state and potential witnesses denied. Reed argued it hadn’t been proven that they were illegal voters, therefor they shouldn’t be asked to testify.

“How do you know that?” Hosack asked. “That’s what the trail is for.”

Hosack ruled several months ago the city was proper in contracting out the election to Kootenai County, and wasn’t going to change that ruling during the four-day trial. He brought the city back in the suit after it was originally dismissed as a potential remedy provider because the case involved its city council.

During the daylong hearing, Kennedy and Kelso had a verbal confrontation at the back of the courtroom. Kennedy had heard complaints that an investigative firm hired to look into the votes had been misrepresenting itself to voters, and voiced these complaints to Kelso’s son, Matt, who is helping his father during the trial. Starr Kelso told Kennedy not to complain to his son, but rather to him.

Hosack is the fourth judge presiding over the case, and his decision, not a jury’s, will decide the case’s outcome.

Before opening arguments, he dismissed the motion to disqualify himself from the case.

Kelso brought that motion before trial was to begin at 9 a.m.. It stated that Hosack, a former attorney for Coeur d’Alene, said unfavorable things about the election trail during a contempt of court hearing stemming from but not directly tied to the election challenge in August.

Hosack said during that hearing that the election litigation “has ramifications upon the average voter that in the view of this court is not a salutary connotation” — or it’s unfavorable — and for a voter to be “grilled by a judge with regard to their votes is an anathema (a curse or loathsome) to everything about our democratic process.”

Hosack said those were hypothetical situations, not for the case at hand. He then dismissed Reed’s attempt to disallow the four Canadian and one California voter from testifying.