Baker's lawsuit against Election Commission, prosecutor is dismissed

Friday, May 4, 2007

BERRYVILLE -- Special Circuit Judge John Linebarger dismissed the lawsuit of Berryville attorney Cindy Baker against the Carroll County Election Commission Wednesday.

The suit, which also named Prosecuting Attorney Tony?Rogers, who was Baker's opponent in the 2006 Democratic Primary, was dismissed with prejudice.

Eureka Springs attorney Greg A. Thurman, who represented Rogers, stated that "today's ruling confirms ... that Ms. Baker's allegations are not supported by the law nor were her allegations factual."

Rogers won the election by 53 votes, but Baker called into question the legitimacy of 88 ballots and called for 286 ballots cast using iVotronic machines to be deducted from the vote total due to procedural irregularities involving testing and certification of the machines; and sought to have the primary election declared void or for her to be found the winner of the nomination.

There was no Republican candidate for prosecutor in the 2006 general election.

In his ruling, Linebarger acknowledged that deficiencies in the absentee ballot applications did occur, but that Baker offered no proof of anything that raises doubt as to the legitimacy of the votes cast.

He cited Arkansas Supreme Court rulings that deficiencies in absentee ballot applications do not cast doubt on the legitimacy of the vote itself. Further, he said, Baker failed to show that any of the absentee votes at issue were cast for Rogers.

Due to ballot secrecy, the only way Baker could have objected would have been prior to the absentee ballots being separated from its corresponding ballot applications. As Amendment 81 prohibits tracing of ballots back to the votes who cast them, there is no way the court can determine whether any of the applications resulted in votes for Rogers or Baker.

Linebarger also noted that Arkansas law has long held that prior to an election, "provisions of election laws are mandatory, whereas after an election they are directory." He cited a 1997 ruling of the Arkansas Supreme Court which stated, "once votes have been cast, we will not set aside the election unless the procedural errors rendered the results doubtful or prevented the electorate from casting free and intelligent votes."

As to technical aspects of the election, Linebarger said that Baker's claim that certain machines were improperly used for voting in a different precinct "appears to be based upon a misunderstanding of how the iVotronic voting machines work. Hardware of the machines ar either changeable, while software is precinct-specific, thus the "integrity of the voting process is not dependent on the use of a specific terminal as a specific polling site."

Linebarger also found that Baker's contention that some election officials were not properly educated and that there may have been misconduct on the part of some was without merit.

"There was no fraud or misconduct by any election official," he wrote, adding that "lack of specific poll worker education requirements played no part in the outcome of the election."

Citing a 2000 case, he stated that "courts do not favor disenfranchising a legal voter because of the misconduct of another person, such as an election official."

Linebarger acknowledged testimony given on?April 7 which showed that early voting started on May 8 ran counter to Baker's contention that ballots were not available on that date.

Further, her contention that 15 early votes should be excluded due to technical errors on the applications showed no proof of casting doubt on the legitimacy of the votes, not that any of the 15 actually voted for Rogers.

The counting and certification of the early election votes were properly done by the Election Commission, he ruled.

Baker also sought for the results of the election be declared void because the commission failed to publish notice in a newspaper of general circulation 48 hours ahead of the date that the voting machines would be tested and certified.

Evidence, however, showed that the commission received less that 24 hours noted from the voting machine company of when technicians would be present to conduct the testing.

Once notified, the commission did take "reasonable steps to provide public notice" by contacting local radio and print media. "There is no indication that the failure to give the 48-hour notice was the fault of the Commission or that it affected the outcome of the election," the judge wrote.

As to the changing of the location on the Winona polling site without complying with Arkansas Code, Linebarger said that postcards were mailed to voters in the precinct, and that there was no evidence indicating that any voter was deprived of the right to vote because of lack of notice in changing the polling site.

The Arkansas Supreme Court has "consistently declined to set aside election results or otherwise disenfranchise voters in the absence of 'grievous and pervasive fraud and intimidations.'

"The wrong should appear to have been clear and flagrant, and its nature diffusive in its influence, calculated to effect more than can be traced, and sufficiently potent to render the result really uncertain," he wrote, quoting a finding in an 1883 case.

Regarding Baker's motion invoking negative inference against Rogers and the commission due to "spoliation of evidence," Linebarger concluded that none of the evidence at issue was spoiled, and that the "commission preserved the evidence according to the requirements of law. There is no basis for invoking any negative inferences against the defendants."

The case coincides with the first time uniform state-wide machine voting was available. However, most county voters used paper ballots in the May 23 primary.

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