High drama

COEUR d'ALENE - The 2009 Coeur d'Alene city election lawsuit went before the Idaho Supreme Court Wednesday, with the high court saying it will consider whether to uphold or reverse a previous ruling that solidified a City Council incumbent's narrow victory over his challenger.

The five-member bench, four of which were present at First District Court, didn't give a timetable on when a decision would be reached, meaning it could be weeks or months before a written ruling is issued on the three-year old case.

"The issue here isn't vote totals, and who won and who lost," said Starr Kelso, attorney for then-Seat 2 City Council challenger Jim Brannon, who filed the lawsuit. "It's the sanctity of the" election process.

The lawsuit claimed inadmissible ballots had contributed to incumbent Mike Kennedy's five-vote victory in the 2009 general election. After a year of litigation and a six-day trial in September 2010, 1st District Judge Charles Hosack upheld the election, sealing Kennedy's victory.

Before the 2010 ruling, however, the court had identified six illegal votes, and threw out four of them. That reduced Kennedy's victory to three votes, as one of the tossed ballots was for Brannon.

The apex of the 2010 trial came when Hosack ruled absentee voters living abroad who had cast ballots were allowed to do so under the federal Uniformed and Overseas Citizens Absentee Voting Act.

By doing so, the court also decided at least five American citizens living abroad who voted under the same guidelines that year had the right to do so.

Wednesday's hearing before the high court centered around that component again, just as it had two years ago.

Citing statutes and a 1988 Idaho case, Kelso argued that federal election law applies only when there are federal offices to elect, which the 2009 general election didn't have. Because it was a municipal election, municipal rules should apply, like the one that states municipal residents are people who have lived in their primary homes at least 30 days prior to the city election.

The UOCAVA voters had lived in Canada for years each, although none of them had registered to be a voter in any other jurisdiction.

"All these votes were counted," Kelso said. "That five is two more than what was ultimately" the difference.

The lawsuit sought to throw out the election results.

But counsel defending the city (named in the suit because it was their election although Kootenai County was contracted to run it) and Kennedy urged the high court to uphold what the previous judge and Secretary of State's office believed - that voters can exercise their right to vote under federal laws if they chose.

"This was no way confined to federal elections," said attorney Scott Reed, representing Kennedy. "It's an opportunity to vote. That's what they provided."

Regardless, the defendants said, the case doesn't pass the burden of proof test anyway.

Burden of proof falls on the appellant, and in this case Brannon would have to prove, not only that the overseas votes shouldn't have counted, but that removing them would be enough to change the outcome of the election. That's to say, they would have to prove the abroad voters voted for Kennedy, and Kelso never obtained that information on the record.

"We don't know who they voted for," said Mike Haman, representing the city, adding that without that information the abroad voter status becomes moot.

The suit also claimed administrative malconduct during the process warranted a new election, like the discrepancy in ballot counts between various reports.

But the defense countered that the only irregularity proven at trial was that the elections office should have printed off an absentee voter report from the Secretary of State's database right after the polls closed, rather than three days later. That didn't amount to fraud or warrant a new election, just as Hosack ruled earlier, they said.

Nearly 100 people filled the courtroom in the old courthouse building Wednesday - including Brannon and Kennedy - as many of the same people did during the 2010 trial.

The high-profile case made headlines and blog posts over the year it went through litigation. The 2010 trial was at times contentious, as the campaign between the candidates had been leading up to the election.

At the end of the hour-long hearing, the justices, in Coeur d'Alene this week to hear North Idaho cases, said they would take the matter under advisement.

Justice Warren Jones was absent from the hearing.