Reader Elmer sends today's Corning Leader story documenting yesterday's reversal of the convictions of five protesters who occupied Randy Kuhl's Bath office in August, 2007. Money quote:
[Judge Marianne] Furfure ruled Kuhl’s office was the public office of an elected official with no signs or public access restrictions. In addition, the trespass did not meet the standard for the misdemeanor charges because it did not occur in an area “fenced or otherwise enclosed ... to exclude intruders,” she said.
Attorney Ray Schlather, the legal advisor for the protesters, said the push by the county District Attorney’s office to make the offense “a fingerprintable crime” showed a lack of judgment and allowed the protesters to turn the charges into political theater.
“This should never gone before a jury,” Schlather said. “That lack of good judgment effectively played into the protesters’ hands.”
Readers might recall that a similar protest at Kuhl's Fairport office was defused when a clever policeman invited the protesters outside and locked the door behind them. If the Bath PD and Steuben County prosecutor had exercised the same good judgment, Steuben County taxpayers would have been spared the tens of thousands of dollars it cost to litigate this innocuous little sit-in.
Sean Carroll of 13-WHAM sent over the court order [pdf] governing the re-canvass of voting machines and canvass of absentee ballots. Here are some highlights:
Since the counts start in Monroe today, if absentee ballots in Monroe are overwhelmingly cast for Massa, it's possible that Kuhl might concede to the inevitable today. In 2006, Massa conceded before all the absentee ballots were counted.
Update: Reader Pystew says Yates will be done by Monday, also.
WETM reports that the absentee ballot count in the 29th will start tomorrow, which is earlier than the last reported date of next Monday, the 17th.
Exile at The Albany Project reports that an audit of Randy Kuhl's 2004 campaign by the Federal Election Commission found some irregularities. From a scan of the audit, it looks like Kuhl's State Senate campaign committee was working as his Congressional committee for a while, and those in-kind donations weren't correctly accounted for. The FEC says that the total of mis-stated contributions is about $118K.
It's not clear to me what the Kuhl campaign owes because of the mis-statement. Exile thinks they owe the whole $118K, because the report says so. Duh. (Updated)
The Star-Gazette has Eric Massa's schedule for today. He's in Schuyler County, Canandaigua, Elmira and Bath.
Happy Veterans Day to all the Veterans reading this.
13-WHAM's Sean Carroll posts his reflection on covering the 29th for the last four years. Sean notes that the combined difference between the 2006 and 2008 races was less than 2,000 votes.
Sean wonders if there will be a Massa/Kuhl III. I never got the impression that Randy Kuhl enjoyed fundraising or campaigning. A rematch by Kuhl would require a much bigger fundraising effort, since he wouldn't be able to count on as many "automatic" PAC donations running as a challenger. I just don't see a Kuhl challenge in 2010.
David Kubissa at the Star-Gazette sees hostility in Massa's recent fundraising letter.
The Massa campaign's latest fundraising letter makes the following claim:
Teams of lawyers representing Kuhl have already descended upon our district, and you can bet your last dollar that they will challenge every vote they can that was cast for Eric. With Kuhl's corporate backers, he has all the funds he needs to challenge the votes of thousands of our friends and neighbors. We need to fight to make sure that EVERY vote gets counted accurately and fairly, but to do that, we need your help.
(Emphasis in original.)
It might be worth comparing Massa's situation to that of a much closer race, the Minnesota Senate race. In that race, unlike this one, there's going to be a recount. Because Minnesota uses optical scan ballots, every original ballot will be re-scanned, and any rejected ballots will be hand-examined. That race has thousands of "undervotes", where the voter marked the ballot for President but not for Senator. That means that thousands of ballots may be disputed, and both sides will be able to argue about marks made in the wrong place on each of those ballots.
In this race, for better or worse, any voter mistakes by voters who used the lever voting machines can't be recovered. The only mistakes with regular (non-absentee) votes that could sink Massa's boat are multiple major errors by election workers who transcribed the tallies from the election machines, which is extremely unlikely.
The other possible route to a Kuhl victory is an unprecedented swing in absentee votes. It's hard to see how Kuhl can swing 4,400 votes out of the 20,000 absentee ballots cast. And I definitely don't see how Kuhl's team of lawyers will sway the tally appreciably. Accepted wisdom on voting errors is that the error rate is 1% or less. This means that something under 200 absentee ballots will be disputed. Even if Kuhl's crack attorneys push all of those votes into his total, he still isn't going to win the election.
Massa supporters may well believe that it's critical that Massa have the best possible legal representation, and Massa might be able to raise money based on that belief. But even if Kuhl has resurrected Clarence Darrow, I doubt that he'll be able to snatch victory from the jaws of defeat.
Eric Massa is visiting a Brighton Middle School today to discuss what it means to be a Veteran.
Today's news that Chris Van Hollen [MD-8] has agreed to continue at the head of the Democratic Congressional Campaign Committee makes this as good a time as any to evaluate the presence of the DCCC in the 29th race.
Unlike last cycle, the DCCC poured real money into the 29th this year, spending almost $1 million on ads and mailers. This money was spent entirely on one message: Randy Kuhl voted for free trade legislation that hurt the district.
Whether that message resonated in the 29th is anyone's guess. Even though the TV ad contained one misleading claim (it tried to tie jobs lost because of NAFTA to Kuhl, who wasn't in Congress when NAFTA passed), that distortion didn't become a campaign issue. I assume part of the reason was that the NRCC released a distorted ad around the same time.
In that respect, Eric Massa was lucky. In neighboring NY-26, Howard Owens at the Batavian thinks the DCCC caused real damage:
Whatever chance Kryzan had, the DCCC killed it. First, the negative ads were over the top and in no way truthful. Second, they also crowded out Kryzan's message and didn't allow Alice to be Alice. In the end, they played right into the Lee/GOP strategy of muting Kryzan's plans and policy voice.
The DCCC spent almost $2 million on that race.
I used to think Massa was unlucky because the DCCC wouldn't recognize that the 29th was winnable and only committed money at the last minute. Now I think he's lucky that the DCCC didn't spend more in the 29th. Their cookie-cutter, misleading ads and one-size-fits-all message are often a hindrance, not a help, to the candidates they are trying to support.
The Star-Gazette has some more details on the counting procedure.
The Democratic and Republican election commissioners from each county will ride together to each voting machine in every district in their county.
Each campaign shall be allowed two operatives to accompany the commissioners.
The commissioners and the campaign operatives shall open each machine and allow all present to read and record the results.
Every board of elections shall provide each operative with a copy of the congressional race results from each voting district to compare in the field with the actual machine counter being observed.
The process shall not start until all operatives from each campaign are present.
Each operative shall have a full opportunity to look at each counter number on each machine.
In addition, all paper ballots — including absentee, military, emergency ballots and affidavits — will be counted in each election district starting Nov. 17. Again, operatives from each campaign will be allowed to observe the process.
Each ballot will be examined one at a time on a table large enough to accommodate the campaign operatives and board of election staffs, Pulos said.
If either side objects to any ballots counted during the process, those ballots will be set aside for review by a judge.
2008 was a brutal year for Republican incumbents. The economic crisis, a war that most Americans believe was unnecessary, and the most unpopular President in modern history were major obstacles. These factors alone could cause a loss for an average Member of Congress.
Randy Kuhl was in some ways above-average, because he had a 20+ year relationship with constituents in the Southern Tier. Randy is a household name there, yet his loss in some Southern Tier counties lost him the election. My view is that Randy lost because he lost that connection.
In 2006, Randy made and kept a promise to visit every town in the district. In 2008, Randy moved away from that promise. Because of a few raucous town hall meetings, Randy chose to turn what were open forums into appointment-only meetings.
Not only did Kuhl essentially curtail town-hall meetings, he compounded the problem by pretending that the new, appointment-only charades were equivalent to the old, open meetings. This just isn't true, and it reflects an unfortunate habit of Kuhl's: trying to have it both ways.
The worst aspect of Kuhl ducking town-hall meetings was how weak it made Randy look. If a few noisy radicals in Monroe County cause him to back away from a lifetime commitment to constituent interaction, voters start to wonder if Randy can stand up for them in the far tougher environs of Washington, DC.
Kuhl's refusal to debate Massa in an open forum fed into both the alienation from his constituents and the appearance of weakness. It's especially damaging that Kuhl refused to participate in the Leader/WETM debate, which was sponsored by two widely-respected Southern Tier media organizations.
Kuhl's whole handling of the debate controversy turned what could have been a negative for Massa into a positive for him. Whenever Massa brought up the issue, Kuhl attacked him for begin an eternal candidate, and for being a carpetbagger. Those attacks might have had some traction, but Massa also proved that he was tough enough to challenge the most powerful man in the Southern Tier. Kuhl could have made the whole thing go away by agreeing early on to a reasonable set of debates. Instead, Massa was able to drag it out, and look like a fighter for doing so.
The debate conversation was typical of the whole Kuhl/Massa conversation in the last two years. Massa would dare, and Kuhl would ask "How dare you?" In a time of economic uncertainty, voters prefer the candidate who appears tough and daring, not defensive.
Kuhl was very proud of his minority whip appointment in 2007, and it's clear that hanging out with the Republican leadership had a distinct impact on his rhetoric and campaign strategy. It's pretty easy to trace one of Kuhl's biggest blunders, ending town hall meetings, back to the bad advice he got from his new Republican buddies. In early 2007, at one of the raucous Monroe County town hall meetings, Kuhl noted that many of his friends in Congress criticized him for having a meeting in every town in the district. My thought at the time was that Randy needed some new friends -- that anyone who mistook one of his Randy's strengths for a weakness didn't understand Randy or the 29th.
I didn't hear his remarks at his "victory party" Tuesday night, but I'm told that San Francisco liberalism and Nancy Pelosi were heavily featured. Randy stuck to those talking points to the bitter end, and while they may have motivated the core of the base, the focus on Pelosi is another symptom of how Randy's new friends didn't help him much. Like every Republican, Randy was running against "change", a word emblazoned on Eric Massa's yard signs and embedded in the Obama campaign. Hating Nancy Pelosi is not a strategy for countering a change message.
It really is a shame about Randy. He's a decent guy with a long record of service. I think the 2006 Randy Kuhl might just have won this election. The 2008 Kuhl was just a little too close to DC, and bit too far from the Southern Tier, to pull it off.
Today's Star-Gazette has a couple of analysis pieces. One, by Erin Kelly, points out that Republicans are down to a couple House seats. The other, by David Kubissa, points out the role of Monroe County in the 29th.