October 6, 2010 in City

Judge upholds CdA election result

Kennedy retains seat on council by 3 votes
By The Spokesman-Review
 
The case

Challenger Jim Brannon argued that the November 2009 election was invalid because of illegal votes.

The city of Coeur d’Alene and an incumbent councilman emerged victorious Tuesday in a lawsuit that challenged the legality of the November 2009 City Council election and accused Kootenai County’s elections department of misconduct.

Challenger Jim Brannon lost the Nov. 3 election to Mike Kennedy by five votes and responded by suing his opponent, the city and Kootenai County, which was later dropped from the suit. The trial began Sept. 13 and lasted six days.

“The Court concludes that there were insufficient illegal votes cast to change the outcome of the election,” ruled Kootenai County 1st District Judge Charles Hosack, in a decision released Tuesday afternoon. “The Court concludes that there was no error in counting votes that would change the result of the election. The Court confirms the election result of Mike Kennedy’s election to Seat #2 on the City Council for the City of the Coeur d’Alene.”

Kennedy said he was pleased, but not surprised, at the verdict. “This election was run very well, as we had said from the beginning,” Kennedy said just before heading to a Tuesday night council meeting.

Brannon and his attorney, Starr Kelso, could not be reached for comment.

The court’s finding, however, did reduce Kennedy’s winning margin to three votes instead of five. Six votes were found to be illegal due to residency issues. An agreement among attorneys led to three of them being thrown out – two for Kennedy and one for Brannon – which reduced the margin to four votes.

Of the three remaining illegal votes, two of the voters testified they could not remember who they voted for, testimony that Hosack found to be credible. The last illegal voter testified that she thought she had “probably” voted for Kennedy, and Hosack threw that vote out as well, reducing the vote margin to three.

Another legal city resident was proven to have voted in the wrong precinct. When Kelso attempted to have her vote thrown out, Hosack said he would not disenfranchise a voter who was a legal city resident and had attempted to do the right thing despite a mistake by elections workers.

The trial was a battle of numbers, with attorneys for both sides doing elaborate calculations to show how many absentee votes had been cast and counted. Voters took the stand both in person and via video conferencing.

Kelso hammered county elections officials on state and federal laws, particularly those that permit U.S. residents living overseas to vote in municipal elections. The ruling said Brannon did raise legitimate concerns about the fact that laws regarding municipal residency requirements are different than those at the federal and state levels.

“The issue will remain unsettled without further clarification by either a legislative body or appellate court,” the ruling said.

Hosack’s ruling made note of the complex nature of election litigation. However, in the end, the judge found that none of the irregularities alleged by Brannon constituted misconduct on the part of county elections workers.

“Having listened to six days of testimony, the Court is impressed by the complexity of the election process, and at how well the County ran the election,” the ruling said.


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