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4 December 2012

Further thoughts on Welch’s recount

News reports published yesterday after I uploaded my 3 November post on Sandy Welch’s decision to seek a recount make the situation much more interesting.

Updated Sandy Welch probably cannot win a recount story first posted on 11 November.

First, a summary of the new information with links to the stories quoted. Then, some comments on what I think is happening.

The biggest news is Welch’s legal team and strategy. Writing for the Lee newspapers, Mike Dennison reported:

She said the state and national Republican parties will help pay for the recount, as well as individual donors, whose identity will be reported to the state political practices commissioner.

Listed as lead counsel on Welch’s application is James Bopp, of Terre Haute, Ind., a prominent lawyer who has successfully attacked campaign-finance limitations throughout the nation. He was one of the original lawyers for Citizens United, the group whose legal challenge led to the landmark 2010 U.S. Supreme Court ruling that said corporations and unions can spend money directly from their treasuries to influence elections.

Welch said Bopp is the lawyer hired by the Republican National Committee to work on the case.

Welch asked the judge to allow her campaign representative to witness the recount and be allowed to challenge any decision by a local recount board on whether to count disputed ballots. She also asked for a post-recount hearing at which she could challenge the decision on counting any ballots.

♦ ♦ ♦ ♦ ♦

Welch’s 17-page application outlined numerous examples of alleged vote-counting errors across the state on Nov. 6, including ballots jamming in electronic counting machines, re-marking of ballots that were run through the machines multiple times, failure to give voters new ballots to replace spoiled ballots, and ballots that weren’t officially stamped.

And, reported the Daily InterLake:

“This is an opportunity for the public to learn how our election process works,” Welch said. “We are aware of instances where there were some significant systematic errors made in counting ballots, and this is the best process to confirm this. The public must be aware of these problems.”


Bypassing Montana’s Secretary of State

Welch went directly to state district court, declining to file her recount notice with Montana’s Secretary of State, Linda McCulloch, a Democrat. That obviously raises a question of whether she should have exhausted her administrative remedies before placing the matter before the courts (I’m sure Denise Juneau’s attorneys will make that argument). More important, I think, going to court takes the recount out of the Secretary of State’s hands and places it in the hands of a judge in the most conservative large county in Montana. This has the effect of making McCulloch a defendant. It also creates an opportunity to ask for remedies not available in Montana’s recount manual.

Expect to hear some creative arguments, expertly presented. That’s why Bopp is involved. His involvement is also an attempt to intellectually intimidate the judge.

Elections and errors

No statewide election is without error or problem. Election officials make mistakes, equipment malfunctions. Some voters get screwed.

For example:

In Yellowstone County, folded ballots submitted by mail began jamming in the counting machines, which were not certified for folded ballots by the manufacturer. That slowed the count. But that did not necessarily result in the ballots being miscounted once the machine accepted them. Auditing a couple of precincts with hand counts would reveal a problem caused by a machine failure. An audit also would catch a programming error that wrongly allocated the votes counted. Are systemic errors such as these possible? Certainly. Are they probable, as Welch seems to be alleging? Not in my opinion.

In West Yellowstone, some voters were turned away when elections officials lost their computer connection with the state’s department of motor vehicles, thereby losing the ability to check voter registrations made through the motor voter program. News reports said they were told to drive to Bozeman to resolve the issue; some didn’t have time to reach Bozeman before the polls closed at 2200. Is Welch collecting “we were unlawfully turned away from the polls” affidavits from voters in West Yellowstone and elsewhere? If so, how many can she collect? How many will she present to the judge at the hearing on Friday?

Sometimes a counting machine will not accept a ballot. In those cases, elections officials often transfer the voter’s choices to a new ballot, which is then run through the machine. Proper records of what was done must be kept, but the transfer preserves the voter’s choices so that his vote counts. The ballot could also be hand counted and added to the tally produced by the machine. Either method of working around a machine resistant ballot honors the voter’s intent.

It won’t be enough for Welch to prove that election workers and officials made mistakes, or that equipment malfunctioned. She must be able to prove the number of mistakes and malfunctions caused the Secretary of State to mistakenly conclude that Juneau won the election. Ultimately, Welch must find and/or disqualify enough votes to overcome a 2,231-vote deficit. I doubt she can do that no matter how many ballots she challenges, how many voters she angers, how many election administrators she antagonizes, or how much earth she scorches.

The real winners of the recount will be the lawyers.