COEUR d’ALENE — Mike Kennedy lost two votes, and Jim Brannon lost one. Now, the difference between the two could be four.

Legal counsel for both sides agreed that three voters who cast ballots in the Nov. 3 Coeur d’Alene city election weren’t legal voters, and 1st District Judge Charles Hosack accepted the agreement, subtracting the votes from the five-vote difference in the Seat 2 City Council race.

None of those voters needed to testify Wednesday, but none of the other allegedly 20 or so illegal voters testified either, frustrating Hosack regarding the pace of the four-day trail that is bound to exceed that limit.

“I’ve lost control of this trial,” Hosack said about the length of witness testimony, its relevance, and the “unprofessional” banter between Kennedy and Brannon’s legal teams, before calling all the lawyers into private chambers. “I’ve got to regain control of this trial.”

Hosack threatened to impose time limits for witnesses the rest of the way to speed it up. After the legal teams met with the judge, they returned and the agreement on the three votes was established.

“It’s no surprise,” Kennedy, the Seat 2 incumbent, said outside the courtroom. “I always knew there were a couple of mistaken votes. Nobody’s ever questioned that, but it’s not enough to turn the election.”

The trial isn’t over, so any decision isn’t set in stone.

And if any other votes should be discarded remains to be seen. Those voters haven’t taken the stand. Instead Wednesday’s testimony focused again on the discrepancy of the number of absentee ballots the Kootenai County Elections Department received, according to different reports the department ran after the election, and the tabulation number of votes, 2,051, which the city adopted as its final tally.

Those reports, run on Nov. 6 and Nov. 16, are 2,047 and 2,049 respectively, Brannon’s attorney Starr Kelso has pointed out over three days. They drop even further when subtracting the number of voided ballots on those reports, five and seven, respectively, to 2,042. But Kelso also found one name appearing twice, dropping the total to 2,041.

The problem, Kelso argued, is there is no proper record to compare those numbers with the 2,051. That 2,051 total only appears as the counting machines’ final numbers, called the tabulation.

Instead, Kelso said, elections officials should have kept documentation of the number of people who applied for absentee ballots, the number and dates of absentee ballots the department received, and the number of voided ballots in accordance with Idaho statute immediately after the polls closed at 8 p.m. Nov. 3.

That didn’t happen, according to Dan English, Kootenai County clerk.

English said outside the courtroom that that record keeping is proper protocol but didn’t know why it wasn’t done in the elections department. Deedie Beard, elections manager at the time of the election but since retired, declined to comment on the ballot report the department should have had since she is a witness in the litigation who will testify during the trial.

Tim Hurst, chief deputy in the Idaho Secretary of State’s Office, testified Wednesday that the report should have been printed out and kept by the elections department.

When Kelso asked Hurst if the tabulation page showing 2,051 — as opposed to the printed-out report with dates, times and numbers of all the absentee voter records — proved all the ballots were legal and received before deadline, Hurst responded: “That alone doesn’t show it.”

Hurst added that of the tabulation and Nov. 6 and 16 reports, the one on Nov. 6 was the most accurate in the courtroom to determine which absentee ballots were legal and received before deadline.

Adding to the confusion between the difference in numbers is the electronic database from which the Nov. 6 and Nov. 16 printed-out reports generated. Those came from a real time, electronic database from the Secretary of State’s Office. Real time means it’s always updating, so when someone moves, dies or is otherwise removed from the system, their name won’t appear if the list printed out after the election — even if they voted.

So if a person voted absentee in October, then moved or died before Nov. 3, that vote would still be counted, but the name could also be purged from data base in Kootenai County. Every election department in the state has access to that database to update it, too.

Since that’s the case, even a report run at 8:01 p.m. Nov. 3 isn’t necessarily a direct comparison between what the machine counted and every absentee ballot on the report, English said, although it would be a good indication.

Also Wednesday, testimony indicated that the absentee ballots and envelopes were counted by hand in June and July.

Senior Magistrate Judge Eugene Marano, as agreed upon by the court during discovery, counted both.

He testified he counted 2,086 absentee envelopes and 2,027 ballots on June 22. He was told those were the ballots and envelopes, but that he was later called back by Kootenai County officials in July because the department had 17 “duplicate” ballots and seven “invalid” ballots that he added to the total, he said.

On Tuesday, elections officials testified that the number of absentee ballots should match the number of envelopes exactly.

During cross examination of Marano on Wednesday, Kennedy’s attorney, Peter Erbland, took a large, poster-sized Post It note from a pad Kelso is using and hung it on the wall. In marker, Erbland added 2,027, 17 and 7, and underlined the total 2,051.

Those yellow posters hang all over the courtroom walls with all the various numbers and other testimony scribbled on them. It was then the banter between the two legal sides began again.

“What’s good for the goose,” Erbland said as he took a piece of paper to begin doing the math.

“I won’t even object,” Kelso said, and on redirect Kelso wrote on another page on the wall the number of envelopes counted on June 22 (2,086) and the number of ballots Marano counted at the time (2,027), indicating that duplicate and invalid ballots shouldn’t be counted.

Hosack expressed frustration during different points Wednesday. He reminded counsels to keep a degree of professionalism, later saying he had abandoned all hopes of that.

That back and forth began Monday, cooled off by Tuesday, then picked back up Wednesday.

On Monday, Kelso’s opening arguments were in a loud tone, which Erbland questioned. At Monday’s conclusion, Hosack asked both counsels to meet him in chambers to discuss the nature of the proceedings, although he didn’t specify what was discussed.

On Tuesday, trial proceeded in a more hushed tone, but Hosack did take a time out to tell the audience that people would be removed from the court if they called out, rolled their eyes or otherwise acted out of order. One person was removed Tuesday.

After Hosack’s warning Wednesday, another back and forth began.

Kelso called Dustin Ainsworth, a voter, as a witness. Ainsworth was not in the courtroom, but had surrendered his phone number to be called as he was needed. When Kelso went to check if Ainsworth was in the hallway, he said that Ainsworth “had been subpoenaed.”

“Two days ago,” Kennedy said as Kelso walked past him.

“Do you have a comment Mr. Kennedy?” Kelso asked.

“Talk to my attorney,” Kennedy said.

Enough, the judge said, and he warned counsels that his attention and patience was wearing. He then interrupted testimony that he said veered too far off topic regarding illegal voters. These sidetracks included whether Brannon’s team had been stonewalled from discovery requests, and what part the county prosecutor’s office allegedly played offering or receiving legal advice with Kennedy’s attorneys during the 10 months since the election challenge was filed — even though the county wasn’t a named defendant for a majority of those months.

“What’s that going to prove to me?” Hosack asked, referring to the questioning as “conspiratorial.”

He also told Kelso he was tired of hearing the same testimony about the ballot reports from different witnesses, and was waiting for new testimony and more witnesses.

He ended Wednesday’s daylong hearing by calling both counsel in to talk.

In the end, three votes were tossed.

One was Ainsworth’s vote for Kennedy. Ainsworth moved into his Coeur d’Alene home from outside the city around two weeks prior to the election. That didn’t meet the 30-day minimum to qualify as a voter for the city election.

Nancy E. White’s vote for Kennedy was disqualified because she listed a Coeur d’Alene home as her address although she lived outside of town, and Gregory Proft, a Post Falls resident serving in the military oversees, had his vote for Brannon thrown out for listing the Kootenai County Courthouse as his residence, according to court document copies.

Kelso said the agreement saved three hours of testimony and that he agreed to give Proft’s vote up “because it was the right thing to do.”

“I didn’t know,” Ainsworth said during court recess Wednesday about the mix-up that allowed him to cast his ballot. “I was proud I had voted.”