‘Razor-thin’: Judge hears arguments in Arnold’s ACHD recount appeal

Arnold and Pickering
Posted at 6:43 PM, Dec 11, 2020
and last updated 2020-12-11 20:43:34-05

This article was originally published by Margaret Carmel in BoiseDev.

Ada County Highway District Commissioner Rebecca Arnold got her day in court Friday afternoon to contest the results of the recount in the race between her and Alexis Pickering.

In the nearly two hour hearing Ada County Judge Ron Wilper, heard from Arnold’s attorney former Lt. Governor David Leroy, Ada County Clerk Phil McGrane and Pickering’s attorney Elizabeth Koeckeritz to determine if the recount results should be thrown out and the ballots recounted by hand. On Election Night, Pickering bested Arnold by two votes. After the recount, her lead increased to four votes.

A decision from Wilper is expected Monday.

Arnold takes issue with the accuracy of the process and the inclusion of 31 “newly discovered” absentee ballots. To remedy this, she is requesting the court hand count all of the ballots if possible, or at minimum some precincts where the additional ballots were from. She also requests 24 of those ballots, which came from a single precinct, to be thrown out entirely.

“Because of the narrowness and the importance of those under votes and the critical nature of these surprise 31 votes we are still talking about in a state of bluth, I ask you to cut through the knot and to address the inconfidence here and to allow us to all know the proper outcome of this election,” Leroy said in his concluding statement.

31 additional ballots…

These 31 additional absentee ballots in Arnold and Pickering’s race part of the 57 additional absentee ballots county wide McGrane uncovered during the recount. Because absentees are not separated out by precinct, the entire county’s absentee ballots had to be recounted last week in order to save time.

Of those additional 31 absentee ballots counted, 10 were for Arnold, 15 were for Pickering and the final six were under votes. An under vote means a ballot was filed, but the person casting the ballot chose not to make a selection in the ACHD race.

McGrane, a Republican, said he believes the additional ballots were not counted twice or added to the total to be counted later due to his preliminary analysis of the process. Because all 57 of the additional ballots found during the recount came from precincts next to each other, he believes there was a scanning error by an elections employee in the lead up to the November election.

The ballots are currently impounded by the Ada County Sheriff’s Office during the count proceedings. McGrane said until he can access the ballots himself once they are released, he cannot know the exact reason for the additional 57. He also said by studying the reports tracking each absentee ballot and comparing it to voting records, he is able to tell these ballots were not counted originally, instead of counted twice during the recount.

“Every indication I have is instead of counting a batch twice, a portion of one batch was not counted,” he said. “We have already been able to identify which batch this was from.”

Arnold: Logic & accuracy is off

Arnold also argues the logic and accuracy test administered prior to the recount shows too high of a margin for error, and the ballots should be hand counted.

During the test, roughly 5% of the ballots were hand counted and then run through a machine to see if they matched. Arnold selected ballots from four precincts to be counted. During the test, two of the precincts’ results matched the result of the hand count, but in the other two there was a vote each that was counted as an undervote. One took a vote away from Arnold and the other from Pickering.

Leroy says because the election was so close, the machines being off by two votes means the margin of error was too high and it should have been counted by hand. He also argued that Arnold was not permitted to have absentee ballots counted during the voting test, which means it violates the law because then the test was not random.

In her arguments responding to Leroy, Koeckeritz said the margin of error was below the 1% required to trigger a hand count under state statute. She also reiterated McGrane’s point about how absentee ballots were not sorted into precincts and would need to be all recounted, meaning they could not be easily selected for the accuracy test.

“By not getting to pick these kinds of ballots there’s no allegation that it harmed them and there’s no evidence they were harmed in any way,” Koeckeritz said.

In her brief filed with the court, Koeckeritz included some national research showing hand counts are subject to human error and more likely to have mistakes than machine counts. Both she, and McGrane, said recounts done by machines, including this one, are typically most accurate because it is completed slowly over the course of many days and cuts down on the possibility of mistakes.

“The research indicates that hand counts are vulnerable to human error,” McGrane said. “That is one of the things that the Idaho Secretary of State and the legislature have taken into consideration (in the statue). Machines are most commonly used throughout the state of Idaho.”

Concern over ‘curing’

The process of “curing” absentee ballots is also a concern of Arnold’s.

In his arguments, Leroy argued that because there is nowhere in the state code specifically allowing McGrane’s office to contact voters who turned in ballots filled out improperly to fix them so they can be counted, that process is illegal and those ballots should be thrown out.

The Idaho Secretary of State Lawrence Denney allows this process, according to reporting from the Idaho Press in October. Both Ada and Canyon County did this in 2020.

According to a report from the clerk’s office, 242 ballots were rejected in the November election. This is either because they arrived to the office after election day, were missing a signature or the signature on the envelope did not match the signature on file with the county.

But, at this time, McGrane said while the ballots are impounded there is no immediate way to tell how many ballots were turned in improperly and fixed by the voters after they were contacted by the clerk’s office. Because there’s no way to know how many were “cured” at this time, those ballots could not be thrown out by the court.

Wilper said he had sympathy for both sides in the close election.

“I very much appreciate the fact that the legislature thought about recounts and put together a statute that seems to address most everything here and we have some terrific experienced attorneys and elected officials who have done their best to instruct me and urge me to decide one way or the other.”