Idaho justices reject Brannon’s appeal in election loss

The Spokesman-Review photo

Mike Kennedy

November 16, 2012 10:59 a.m. - Updated: 6:09 p.m.

A Coeur d’Alene man who contested his loss in a 2009 City Council election, alleging numerous irregularities, has lost on appeal to the Idaho Supreme Court.

In a unanimous decision today, the justices rejected most arguments Jim Brannon made in his legal fight over a narrow election loss to Coeur d’Alene City Councilor Mike Kennedy.

The court found no evidence that disputed votes in the case were illegal, and it determined that Kootenai County 1st District Judge Charles Hosack correctly refused to order non-city residents to testify about their residency at trial. The justices also said Hosack did not err in dismissing Brannon’s claims of improper conduct or in denying his motion for a new trial.

“I’m happy to put it to bed once and for all,” Kennedy said Friday.

He estimates he spent at least $10,000 of his own money in the case, and the city covered legal bills on his behalf to the tune of $126,000, not counting many hours of city staff time.

“It was a pretty long and costly matter for taxpayers and for me and my family,” Kennedy said. “But it’s done, and that’s a good feeling.”

Brannon released a statement saying he was disappointed in the opinion, but added that his suit “was always about the integrity of Idaho’s elections.”

Kennedy was declared the winner of the November 2009 election by five votes. That margin was reduced to three during a District Court trial after several votes were found to be illegal due to residency issues.

Hosack found in October 2010 that there was no error in vote count, as Brannon had argued, nor misconduct on the part of county elections workers that would change the results.

Coeur d’Alene lawyer Starr Kelso, who argued Brannon’s appeal, raised a long list of issues with the Supreme Court but focused on the legitimacy of several absentee ballots cast by voters living out of state. Kelso also seized on a disparity in the total number of absentee ballots cast and counted in the election as reason to void the results.

He further argued the city did not have the legal authority to contract with Kootenai County to conduct the election, and he alleged misconduct on the part of the county’s elections department.

Attorneys Michael Haman and Scott Reed, representing the city and Kennedy, countered that the court does not know and may never know who the contested absentee voters cast ballots for, so there’s no evidence that including or excluding their votes changes the outcome.

“The Supreme Court saw it the way we did from the very beginning, which is that no election is perfect, and this once wasn’t, but Judge Hosack said that it was pretty well run,” Kennedy said.

Brannon said the suit did resolve an important issue regarding absentee voting. The Supreme Court agreed with his argument that the requirements of the Uniformed and Overseas Citizens Absentee Voting Act do not apply to municipal elections prior to 2011.

“Until now, that issue was unresolved,” Brannon said Friday. “With an increasingly mobile workforce, this clarification is extremely important.”

He also said the suit should encourage the Legislature and Secretary of State to address potential vulnerabilities in absentee voting, residency requirements and Idaho election law in general.

“Components of those laws are simply unworkable,” Brannon said. “For example, the 30-day trial requirement for election contests to be heard or that malconduct in administering an election is not clearly defined.”


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