BERRYVILLE -- Motions in the lawsuit of Berryville attorney Cindy Baker against the Carroll County Election Commission and Prosecutor Tony Rogers were taken under advisement by Special Circuit Court Judge Ed Jones Monday morning.
In a casual meeting with the parties following the hearing, Jones stated he had no idea how he would rule and planned to review various cited cases before making his decision. He also noted the time element and, although the case involves the Democratic primary for the prosecuting attorney nomination and there is no Republican candidate in November's general election, he said that he would make his decision as soon as possible.
During that meeting Attorney Bill Putnam who represents the election commission addressed the September school board election with the voting machines locked in the county clerk's vault as possible evidence in the lawsuit.
The parties agreed that using the machines themselves would not be a problem, with printouts of the primary results and isolation of the personal electronic ballot (PEB) software.
At the conclusion of the hearing, Jones complimented all the attorneys involved "for a thorough job."
Baker, acting as her own attorney, is asking to be declared the winner of the primary, or, in the alternative, for the election to be conducted again.
Her complaint alleges that while she lost the primary to Rogers by 53 votes, there were enough questionable ballots to swing the election by 82 votes and make her the winner.
The election commission and Rogers are asking for a default judgement based on failure to meet deadlines in contesting the election.
Civil court rules and procedures in matters involving elections are special, and attorneys spent considerable time arguing how such procedures apply, compared to more ordinary civil procedures. Depending on Jones' ruling, the case could establish new law.
Attorney Greg Thurman, representing Rogers, breached the meat of the matter arguing Baker's position regarding early votes, iVotronic votes and absentee votes.
Regarding the possible disqualification of 42 early votes, Baker's contention that 27 early votes were cast on May 8 when early voting took place on May 9 or later due to not having ballots, was discounted by Thurman, stating that voters cannot be disenfranchised due to a mistake in writing the wrong date, and that County Clerk Shirley Doss stated in an affidavit that the ballots were available on May 8..
He argued that Baker was taking law governing absentee voting and applying it to absentee votes, yet cannot cite any case authorizing such application. Early voting is treated like same-day election voting, he said.
With 27 early ballot applications with a possible "wrong date by a right date allowed," only 15 remained with other errors, Thurman said, adding that there is no authority to toss any of those votes.
Without those 42 ballots there would only be 44 votes left in question, which is not enough to overturn Rogers' official 52-vote winning margin.
Thurman also discounted disqualification of absentee ballots due to failure of the voter to designate a bearer, yet bearers signed the applications, and failure to designate a political party. He also stated that case law says that a clerk's failure to date an absentee ballot is not a basis for disqualification.
Thurman further argued that contesting of questionable votes is to take place at the time they occur rather than after results are certified. Baker, he said, was "trying to confuse the court by applying absentee voting law to early voting."
As to Baker's request to void the election, he cited an 1883 case in arguing that Baker's allegations do not rise to that level, as the violations are technical as opposed to fraud.
Putnam, for the election commission, argued the importance of Amendment 81, which placed a greater burden on candidates and clerks, and does not allow retrieval of ballots to determine how individuals may have voted.
Largely echoing Thurman's statements, he said that Baker had no basis for her case and that it should be dismissed.
Plaintiffs' attorneys also said that Baker had other remedies she could have pursued, such as asking for a recount, or obtaining poll watchers, which she did not exercise.
Baker, long known for her minutely-detailed legal arguments, argued against the plaintiff's motion for a summary judgment, stating that is only permitted when there is no dispute of facts, which does not exist in her case.
She argued at length regarding assuring the accuracy of voting machines, noting that some machines tested for one ballot were used where the ballot was different.
She also maintained that the vote tabulator must be tested and certified separately, and questioned that if that is not done and the counter misses votes, how the candidate can know of the situation prior to an election.
"It's not an issue until it happens," she said, adding that the candidate's right to challenge is not affected by Amendment 81.
She said no security was exercised regarding absentee ballots, and added that state law mandates several pieces of information, including residence, reason for absentee voting, the party whose primary the voter wants to participate in, and the election, "shall" be obtained. "You will not find 'ors,'" she said. "It's and, and, and and and. You must do all this to be an eligible absentee voter."
She continued, "It is not an option. Only a few are eligible to vote absentee. All require strict compliance, even after the election -- it's case law."
Regarding the bearers of absentee ballots, she said that law requires the person requesting an absentee ballot to designate on the application who their bearer will be. "That's why the voter prints the name of the bearer, and the bearer signs it. The bearer can only be designated by the voter."
In essence, she argued that there are material issues for the court to decide, therefore a summary judgement is inappropriate."
"It is not our burden at this time to prove" her allegations, she said. Rather the hearing is to see how the allegations could potentially affect the outcome of the primary election.
"The plaintiff is entitled to present information to establish uncertainty or wrong. We should have our day in court. It is not to late (for her points) to be moot," she concluded.
Putnam countered that a motion to dismiss the case is appropriate, and as for the basis for a summary judgement, he said that "We think there are no material facts that can be supported."
He indicated that there is not enough law governing elections to skew the primary's outcome. "There are not enough votes at issue to make a difference," he said.
He also indicated that Baker might not understand voting machine technology, saying that PEBs can be tested on any machine then transferred to another one.
Regarding information supplied in a voter's request for an absentee ballot, he said that the statute does not say that not providing it all invalidates the ballot, and that inaccurate dates are a simple mistake, like misdating a check. "That's the type of errors we are looking at here. They are not sufficient to invalidate a ballot."
He said that Amendment 81 "trumps" other election law.
Little Rock Attorney Jeff Rosensweig, who is assisting Baker, said that there are enough conflicts for remedies to be sought whether or not the ballots are traceable to the voters.