KALISPELL – A Flathead County district judge on Friday ordered a statewide vote recount in the race for Montana schools superintendent, ruling that Republican Sandy Welch’s narrow defeat to Democrat Denise Juneau may have been the result of voting machine errors and departures from election law.
“Certain votes might not have been properly counted, and the right to vote and to have that vote recorded is a fundamental right,” said Flathead County District Judge Stewart Stadler. “No harm can come from a recount, especially when the applicant is expected and charged the costs of the recount.”
Welch resides in Martin City, so legal jurisdiction for the manual recount lies in Flathead County.
Official results had Juneau winning the seat by a 2,231-vote margin out of the nearly 468,600 ballots cast in the Nov. 6 election, but Welch argued that widespread voting machine errors and a host of other Election Day foibles were grounds for the recount, and may reverse the outcome in her favor – particularly given vote counting problems in Lewis and Clark, Yellowstone, Missoula and other counties.
A recount also may reveal shortcomings in the state’s election process and lead to more uniform practices, she said.
“I really hope that the kinds of errors we’ve seen this time around, which the court has recognized as kind of systemic and widespread, that they are all resolved and that we make sure the integrity of our election system is strong and that every Montanan can rely on it to ensure that every vote is counted,” Welch said following the judge’s order.
Montana law gives candidates the right to request a recount if their margin of victory is one-half of 1 percent or less, and Juneau won by approximately 0.48 percent.
Still, Welch remained hopeful.
“We believe that the kinds of errors that we are seeing are systemic enough that it does overturn the outcome,” Welch said.
Attorneys representing Juneau and Secretary of State Linda McCulloch, the state’s chief election officer, announced their intent to appeal Stadler’s decision to the Montana Supreme Court, as well as to request a stay in the recount pending the high court’s consideration of the appeal.
Kalispell attorney Amy Eddy, who represents Juneau in the case, said Welch furnished no evidence in her application that votes had been improperly counted, but rather drew repeated inferences – based on alleged mishaps in a smattering of precincts – that widespread errors may have occurred.
“The practical effect of the judge’s decision creates a very dangerous precedent, because it would allow any unsuccessful candidate to come to court and argue that votes were improperly passed in one particular county, and that would therefore entitle them to a statewide recount,” Eddy said.
Stadler said state election law requires that the recount must occur within five business days of his decision, and ordered Welch to deposit a bond of $115,000 by Tuesday. The bond is meant to fund the manual recount efforts by election officials in each of the state’s 56 counties.
Welch could have automatically forced a recount by making a formal request to Secretary of State Linda McCulloch, the state’s chief election officer. Instead, she elected to bring the matter before Stadler, who was charged with finding “probable cause” that an erroneous count occurred before ordering the recount.
Welch’s 17-page application for the recount outlined numerous examples of alleged vote counting errors, including ballots jamming in electronic counting machines, election officials re-marking ballots that were run through machines multiple times with Sharpie markers, mending “spoiled ballots” with stickers rather than giving voters a replacement ballot, and ballots that weren’t officially stamped.
“This court does not find anywhere in election law that allows stickers or Sharpies to be used to correct mistakes on ballots,” Stadler said. “The election laws require that new ballots be filled out.”
Stadler stressed that state law merely requires him to determine whether or not there exists probable cause that violations occurred – namely, that votes cast were not correctly counted – and not to determine the extent of the violations.
“The court does not have the authority to determine whether these violations are substantial or material. If I was I would probably find that they are not material. But they are violations,” he said.
Jorge Quintana, chief legal counsel for McCulloch, said the mere specter of human and mechanical error should not trigger a court-ordered recount.
“Your honor, the vote is about the closest to sacred thing we have in our secular society. And it should take more than assumptions and allegations, more than the ghosts of partial jams and partial counting to overturn the actions of the local election administrators,” Quintana said. “The election administrators did their job, they acted reasonably and they followed the law. This is not probable cause.”
Welch 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, Bopp 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 treasury to influence elections.
Welch said Bopp is the lawyer hired by the Republican National Committee to work on the case, but another attorney from his firm, Anita Woudenberg, delivered arguments Friday.
Reporter Tristan Scott can be reached at (406) 531-9745 or at email@example.com.