Canadian could decide election

COEUR d’ALENE — Closing arguments are today.

But Jim Brannon’s election challenge of Mike Kennedy’s narrow win in last year’s Seat 2 City Council race could already be decided in the First District Court’s view.

Witness testimony from voters in Coeur d’Alene’s Nov. 3 general election concluded Friday, and even if the three remaining illegal voters’ testimony is taken as fact that they voted for Kennedy, it could still leave the incumbent winning by one vote.

The difference now is four, and Brannon has to prove enough illegal voters cast ballots for Kennedy to change the result.

First District Judge Charles Hosack still has to weigh all the evidence submitted during the weeklong trial, but the judge ruled Friday that one voter living abroad followed the letter of the federal law when she cast her ballot in the city race.

That could have sealed the case’s fate at the district level.

“I don’t know when I’ll be coming back,” testified absentee voter Denise Dobslaff via an Internet hook up that allowed her to see and hear the courtroom from her home in British Columbia, Canada, and vice versa. That image was transferred to a courtroom wall for the courtroom to see. “I haven’t ruled out coming back to the states.”

Whether voters living abroad indefinitely were legal to vote in the city election was one of the debates around which a good portion of the case centered.

Municipal elections have specific statutes that classify legal voters as city residents who have lived at their primary abode for 30 days prior to the city election.

Federal absentee laws adopted by Idaho say those voters remain legal absentee voters regardless of how long they are away so long as they don’t register elsewhere.

Which rule superseded which was the decision for Hosack.

He said he had to rule in favor of the federal law, at least until the state legislature passes a stricter requirement, but added that the municipal argument had merit.

“I’m not comfortable making that ruling that doesn’t extend that right” to vote, Hosack said on the decision to allow Dobslaff’s residency since she testified she wished to one day return to Coeur d’Alene, but didn’t have foreseeable plans to do so. “I’m not comfortable making that call.”

Married to a Canadian, Dobslaff said she has lived in Canada since 1988, although she is from Coeur d’Alene originally. A landed immigrant, she is only allowed to leave Canada for three months every five years. She has maintained her residency as well as a 1 percent stake in property in Coeur d’Alene in case she ever came back. She said she requested an absentee ballot for the 2008 Presidential election. Under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) federal absentee laws, she is eligible to vote in two general elections after that.

That led her to receiving and casting her city ballot, which she said she wasn’t expecting at the time.

Her situation wasn’t unique for the election trial, as three other voters living in Canada used the same standards to cast ballots. They didn’t testify and weren’t proven to be illegal.

Dobslaff did though, and Hosack decided on her UOCAVA status. And since she was legal in the court’s eyes, the next question — for whom she voted — wasn’t allowed to be asked.

Illegal voters aren’t afforded the Constitutional right of secrecy of vote, and can be asked under oath from whom they cast their ballot. Brannon’s attorney Starr Kelso had to first prove that they were illegal before finding their vote.

He did prove there were six illegal voters during the week, (one for Brannon) but not all of them, including Rahana Zellars on Friday, could testify with absolute certainty for whom they voted.

“I’m not sure,” Zellars testified from Portland, Ore., in the same video method as Dobslaff. “I usually vote for Democrats so I probably voted for Kennedy.”

“It’s fair to say,” she said. “Almost always Democratic.”

On cross examination, Kennedy’s attorney, Peter Erbland, asked her if it was a non-partisan race. Zellars said it was, and agreed that parties weren’t indicated on the ballot so she couldn’t say for sure.

One absentee voter from California couldn’t be reached to testify Friday afternoon.

Hosack is yet to determine what he would do with Zellars’ vote. He’s also yet to rule on the votes of Hayden couple Ron Prior and Susan Harris that were proved to be illegal on Thursday. Neither Harris and Prior testified they could recall for whom they voted.

But because the couple testified, “circumstantial” evidence was allowed as evidence to dispute what they said on Friday.

Erin Jenkins, president of Confidential Investigations, the firm hired by Kelso to investigate potentially illegal votes, testified that the couple said they had each voted for Kennedy when he interviewed them.

He recorded the conversations (two over the phone with each person and one in-person interview with just Harris at her home). Those weren’t allowed to be played in the courtroom, but the firm turned over the recordings in March to The Press for a story on the questionable votes.

According to those recordings, the couple first told Jenkins they didn’t know for whom they voted, the were more interested in the countywide jail bond issue at the time. They said they usually vote Republican, then said they probably voted for the incumbent since they were satisfied with the current city government.

Jenkins informed them that Kennedy was the incumbent, they said it was probably for Kennedy then.

When Jenkins attempted to have them sign an affidavit that they lived in Hayden and voted for Kennedy, they said they’d only sign the address part of it, and not that they voted for the incumbent.

Erbland used that doubt in their answers during his cross examination of Jenkins, repeating that Harris referred to the attempt to establish for whom they voted as a lawyer trick.

In the recording, Harris said it was “throwing out a lot of lawyer stuff.”

Whether that testimony will weigh in Hosack’s decision hasn’t been ruled upon. Other evidence such as what the different absentee report numbers mean must be factored, too.

Hosack hasn’t said how long a decision will take once both sides rest their cases.

The judge did rule on Friday that the complaint shouldn’t be changed to malconduct, since the county wasn’t a named party and it wouldn’t affect the evidence submitted. He also ruled that Martie Chamness, who voted at the wrong precinct in Coeur d’Alene although she was a legal voter with a new Coeur d’Alene address, was a legal voter regardless. Poll workers there noted the difference in the address and allowed her to vote there, and that was sufficient, he said.

But the question around federal UOCAVA laws might surface again soon.

Kootenai County Clerk Dan English said outside the courtroom he’s heard from the Secretary of State’s Office since the election challenge was filed that new legislation might be proposed next session to more clearly identify in what elections and how often abroad voters should be entitled to vote.

“Things need to be clarified,” he said.