Friday, November 24, 2006

Recounts Begin Next Week

The State Recount Commission will begin its work next week recounting ballots in four contested House races: Mahern v. Elrod; Hile v. Harris; Sutton v. Lehe; and Bright v. Cheatham. The Commission is chaired by Secretary of State Todd Rokita, who is joined by two other members, one Republican and one Democrat, each appointed by the state party chairs.

Someone asked me last week if the ballots would be recounted by hand. The answer to that question is yes--at least with respect to ballots cast on the optical scan machines for which there is a paper ballot. What about the absentee ballots? Those which were included in the count can be discerned from other ballots and can be subject to additional challenges if they fail to meet any of the requirements for absentee ballots. In the Elrod-Mahern race, where Elrod defeated Mahern by 7 votes, the three uncounted absentee ballots are likely to be a bone of contention. According to Indiana law, the county clerk has an affirmative duty to retrieve any absentee ballots returned by noon on election day from the post office and deliver them to the voters' respective precincts to be counted with all other votes. The clerk is allowed to disregard absentee ballots which arrive by mail after 12:00 noon. The law does provide, however, for the counting of overseas absentee ballots with a timely postmark which arrive by the deadline for counting provisional ballots.

It should be pointed out that Indiana's Election Law prescribes very specific procedures to follow in determining whether to count a vote--leaving little discretion to the vote counters. The law makes it clear that fulfilling the voter's intent is the foremost concern in deciding how to count a vote. From a historical standpoint, the declared winners in each of these races can take comfort in the fact that every legislative recount in recent memory has sustained the vote outcome certified to the Election Division following the election. One notable exception was a congressional recount between former Rep. Frank McCloskey (D) and his GOP opponent Richard McIntyre in 1984. Initially, McCloskey was declared the winner by 72 votes; however, it was later discovered that the vote totals for two precincts in a Democratic county had been counted twice. After the error was corrected, the official tally showed McIntyre the winner by 34 votes. A recount by the State Recount Commission (chaired by then-Secretary of State Evan Bayh (D)) confirmed McIntyre's win. Democrats in the U.S. House of Representatives conducted their own recount under their own rules and declared McCloskey the winner by 4 votes.

Rep. Billy Bright (R) lost his race to David Cheatham (D) by 1,617 votes. This election recount has very little to do with changing the outcome and everything to do with drawing attention to potential election irregularities in Jennings County, where it is reported that as many as 30% of the votes cast were absentee ballots. Absentee ballots typically make up less than 10% of the total votes cast. Jennings County's vote gave Cheatham 5,010 votes to Bright's 4,257 votes, or a difference of 757 votes. Two years ago, Bright carried Jennings County over Rep. Markt Lytle (D), 5,781 to 4,158, or a margin of 1,623 votes. Bright's reversal of fortunes in Jennings County alone explains his loss this year. AI hears that Republicans aren't the only ones complaining about the absentee ballots in Jennings County. A Democratic sheriff's candidate, who also lost, is raising questions as well.

Like the U.S. House, the Indiana House of Representatives is the ultimate judge of the members it chooses to seat. It is highly unlikely, however, that House Democrats would attempt to seat one of its own over a Republican declared the winner by the State Recount Commission. Unlike the U.S. House, it takes an extraordinary majority to form the necessary quorum to conduct business in the Indiana House. If Democrats refused to seat a duly-elected Republican, the Republicans would in all likelihood stage a walkout and refuse to conduct business. It is highly unlikely Speaker Pat Bauer would run that sort of a risk at the beginning of a session where he already has a thin, two-seat majority.


Anonymous said...

I'm curious to know whether or not the provisional and absentee ballots give Mahern the edge. If not, then, I'd guess he's lost. It is reminiscent of Kurt Coonrod losing his City County Council seat by taking it for granted that he'd win. Give Elrod his due respect, he worked hard to get elected. And, I might add, deserves his chance to serve more the Mahern.

Anonymous said...

Elrod did work hard. Mahern didn't until the last minute. Two things did Mahern in ultimately--turnout, and lack of focus until the final few days.

AI, I believe your election law history is somewhat faulty, but I'd be glad to be corrected.

Indiana's voter intent law came after McCloskey's "win" in 1984, I believe. The law prior to that date did not allow recounters to consider voter intent as the chief determiner. I was a watcher in that recount. Under state law, if, for instance, there was a stray mark on the ballot, it could be challenged, and ultiamtely, thrown out. If one of the two election clerks forgot to initial an absentee ballot before it went out, and that error was not found until after it was returned, the ballot, by law, could not be counted. We found multiple county clerks in that district who had ignored the law for decades and counted them anyway, and some who had not. There was zero consistency. In the McCloskey race, there were over 60 of those fanned out across the district. Few counted on election night. Most counted in the end, because U.S.House rules allowed a more-liberal interpretation of the law nd mandated voter intent as the chief determiner.

By the way, for what it's worth, that recount also turned up scores of other counting problems across that district. One county sheriff candidate (the county escpes me now) probably should've asked for a recount, because he'd have won instead of losing by ten.

The shoddy application of Indiana's voter laws led to some reforms after that recount. I am pretty sure "Voter Intent" was added after that point.

There are enough questions in Marion County to justify the 97th district recount. Absentee ballots not counted, for one.

But again, it looks to me like turnout was an issue. Center Township's dismal turnout in 2006 did not help Mr. Mahern.

But Lord knows, all the Center Township Dems won. Thank the Lord for that, huh?

Gary R. Welsh said...

anon, 4:59, not sure what part of my post involves "faulty" election law history. I did not assert that the voter intent provision was a part of the law at the time of the McCloskey-McIntyre recount. The law was indeed amended a couple of years after that-and specifically that provision. The fact is that a commission chaired by Evan Bayh certified McIntyre the winner, and that the U.S. House threw out that vote count and devised their own recount in a fashion that insured a win for McCloskey. The Democrats were vilified by even liberal members of the press at the time for what was viewed as a brazen exercise of power.

Anonymous said...

Re: McCloskey.

The Indiana Recount Commission was not empowered to consider voter intent. They abided by the law at the time, which discarded, I believe, 50-55 ballots where intent was clear, but the archaic Indiana law didn't allow the ballots to be counted.

The US House counted all of them.

McCloskey won, I believe by three or four votes when all were counted. Nothing brazen about that.

Indiana's law was changed shortly thereafter to reflect the exact rules used by the US House Recount at the time. Lead testifier in the Indiana Recount law House and Senate hearings: loser McIntyre, advocating the law as changed. RIght is right, and his supporters had a lot of guts to stand up for a change in the law to count all ballots unless clear fraud was demonstrated.

Re: Mahern, Hile: I don't expect the Indiana Recount Commission to find in favor of anyone who didn't get the most votes. In each race, there are enough questioned ballots to tip the scale.

But the Billy Bright thing is very bizarre. Local Democratic organizers there, wasted no time in October, and got an unusually large number of absentees in before the deadline. Hard work, plainly and simply.