Election worker warned of mail ballot problems

05:43 PM PDT on Wednesday, May 25, 2005

By ROBERT MAK / KING 5 News, KING5.com Staff and Wire Reports

WENATCHEE, Wash. - The mail ballot supervisor in Washington state’s most populous county testified Wednesday that she had raised concerns about the county’s inability to track ballots months before last year’s disputed governor’s race.

Nicole Way, King County supervisor of absentee ballots, said she repeatedly told her bosses as early as spring 2004 that the King County elections department couldn’t tell how many ballots were being mailed out or received back. About two-thirds of the county’s 900,000 votes in the November election were mail ballots.

She testified on the third day of a trial in the GOP’s challenge to the governor’s race, which Gov. Christine Gregoire, a Democrat, won by 129 votes on the third count. Way is currently suspended from her job while King County investigates uncounted absentee ballots that were discovered accidentally long after election day.

Republicans have build part of their case on the idea that Way and her higher ups knew the report was inaccurate when they created it. Democrats tried to show that the report was put together with the best information available at the time.

In what seemed like an endless back and forth between GOP and Democratic attorneys Wednesday afternoon, Way seemed to say both until she was asked by Durkin whether she would like to explain.

"I was concerned because we didn't have anything to check it against," she said. "I was concerned it was wrong, but I did not know until the 95 ballots were found," she said.

After Nicole Way stepped down, Republicans called Virginia-based consulting data analyst Clark Bensen. He testified as to how he created the data sets that GOP experts used in creating their "proportional analysis" to determine how the election would have turned out depending on which votes are determined to be invalid.

Bensen's testimony, and how he arrived at his numbers by extracting them from King County records became immediate fodder for Democratic objections.

"Your honor, it is my concern that it puts into the record a data set that we now know is inaccurate," objected Democratic attorney David Burman.

Burman also complained that Bensen's data sets had been given to Democratic attorneys after deadlines for discovery had passed. In the end, Judge Bridges allowed Bensen's testimony to be included.

Republicans try to prove election errors

The Republicans are trying to prove election errors and fraud stole the victory from Dino Rossi. They want Chelan County Superior Court Judge John Bridges to nullify Gregoire’s victory, prompting a new election.

Under questioning by GOP attorney Harry Korrell , Way said she was asked to create spreadsheet to track absentee ballots after the election. The spreadsheet was intended to track the total ballots issued and the total ballots returned.

KING / Courtesy TVW

Nicole Way, King County supervisor of absentee ballots, took the stand during day three of the trial challenging the election of Washington Governor Christine Gregoire.

Way testified that she asked what information she should put in the spreadsheet since the computer system for tracking didn't accept some ballots, so the numbers didn't reconcile.

GOP lawyers tried to show that upper level supervisors knew about problems with the county's vote tracking software. Way said she told supervisors about problems, but she eventually gave up.

Later, Korrell asked Way to lead the court through a detailed reading of a batch slip, the form that follows a group of ballots through the time they arrive to the end of the counting process.

Specifically, Korrell used examples of batch slips where the number of ballots that were recorded as ultimately counted appeared to exceed the number that moved through the system.

Way testified that on this mail ballot report, county workers put in a false number for the total number of absentee ballots returned. In fact, there were 96 absentee ballots that never got counted, but the canvassing board would never know that from the mail ballot report.

Democrats cross examine

Democrat attorney Jenny Durkin took over cross examining Way, focusing first on security and how absentee ballots get from the post office to the county, from there to a vendor that sorts the ballots by district.

Durkin attempted to establish that the vote counting process was open and thus not susceptible to the kind of ballot box stuffing fraud that Republicans alleged during their opening arguments.

"Are there observers able to watch every phase of absentee ballots when they are tabulated," Durking asked.

"Yes," said Way.

After a lunch break, Durkin walked Way through the stages that a batch of votes goes during the processing of ballots and how voters are credited with voting.

Way also testified that there was friction in the elections office between the computer people, who believed that the DIMS system worked well, and the users, who didn't.

An email from Way to another election worker that the Democrats asked to be admitted into the record, outlined a problem the other worker was having in which she had mistakenly credited some voters with voting.

In response to a question from Durkin, Way said it was correct that although she tried to fix the problem, she could be sure that it was entirely fixed because she wasn't sure what the entire problem was.

Sworn deposition

In a sworn deposition before she took the stand, Way said that she and her direct supervisor, Garth Fell, an assistant elections superintendent, approved a Nov. 17 mail ballot report that falsely showed all absentee ballots had been accounted for. She said they couldn’t get the numbers to add up otherwise.

In his deposition, Fell said elections superintendent Bill Huennekens knew about the inaccuracies in the report before the county canvassing board certified the election results.

But in testimony Tuesday, Huennekens denied knowing in advance about inaccuracies in the report. He acknowledged, however, that he didn’t “have an exact number” of absentee ballots in the Democratic-leaning county that includes Seattle.

Bridges ruled Tuesday that he will allow Republicans to present evidence that King County counted 875 more votes than it recorded registered voters. Democrats had sought to block that evidence, saying Republicans brought it up too late.

“I don’t believe the claim is new,” Bridges said, but added:

“The court is not in a position at this time to determine that these are illegal votes.”

What's next

Democratic attorney David Burman asked that he be able to begin his cross examination of data consultant Clark Bensen Thursday morning, saying he needed more time to prepare and complaining that GOP attorneys had only just given Democratic attorneys the information they were introducing.

In addition to Bensen, Thursday is likely to be taken up with expert witnesses who will analyze the data Bensen has presented.

The trial will resume at 8:30 a.m. Thursday.

The Associated Press contributed to this report.