COEUR d'ALENE - A 1st District judge could decide today whether the city general election challenge lawsuit will proceed to trial.

Trial is scheduled to begin Sept. 13, but 1st District Judge Charles Hosack could dismiss the case during a 3 p.m. summary judgment hearing - which determines the merits of a case without a full trial.

Meanwhile, Jim Brannon's attorney, Starr Kelso, has filed several new affidavits in support of why the case should move forward - one that claims the ballots were "stuffed" and an amended complaint alleges "fraud or corruption."

Mike Kennedy's attorney, Scott Reed, said those filings were submitted too late for the court to consider, missing the 14-day cutoff, and even if the court could consider them, they're unsubstantiated claims.

But Kelso said the deadline is three days before the trial begins, and his most recent affidavit, filed Monday afternoon, alleges fraud in the election process since Kootenai County or the city did not comply with Idaho code that requires it maintain a record or application for absentee ballots including when it was issued and when it was returned.

Those numbers weren't provided, Kelso said.

Another affidavit identifies 72 votes as illegal.

Those include several people who voted absentee from others states and Canada who do not live in Coeur d'Alene permanently, nine unknown voters who had undocumented absentee ballots mixed with documented and received ballots, and 53 people for whom Kelso said it is unclear whether they received the proper ballot at their precinct.

Kelso said several voters who lived outside Coeur d'Alene were also served summons to testify at trial, according to Kelso's affidavit. They were first served subpoenas at their Coeur d'Alene addresses, but weren't living there, an affidavit states.

Another affidavit shows Kootenai County Elections Office reports that list the final number of absentee ballots as having different totals in different reports.

Those ballot counts, mostly from different dates in November 2009, had the office receiving between 2,041 and 2,051 absentee ballots, according to Kelso's affidavit.

Those 10 are more than twice the number separating the Seat 2 election, it states, and "the only explanation for these illegal undocumented ballots is that one or more persons 'stuffed' the ballots."

An affidavit of Kootenai County Clerk Dan English states otherwise.

English said that the like number difference is the number of ballots returned according to the Secretary of State's database - a real-time tracker of current and changing voter counts in the area.

That number will likely always change since it's always updating whether those voters who voted in the city election are still registered. That number will vary compared to the 2,051 absentee ballots that the city counted on Nov. 3 after the election.

But Kelso said absentee applications and their receipt at the elections office should be documented and maintained for two years, as mandated by the Secretary of State's office.

"We've been trying to get that information since December," he said.