Republican Rep. Jim Sorvillo has gone to the state Claims Commission to argue that his District 32 seat should not be filled by Democrat Ashley Hudson, who was certified by the winner by 24 votes.
In his complaint, Sorvillo said the results of the election are incapable of correction because of the erroneous inclusion of disqualified absentee ballots. He asked the Claims Commission to recommend that Hudson not be seated by the House and that the governor should call a new election to remedy the errors.
Hudson argued in response that the state Constitution requires that the courts hear his contest, not a body appointed by the governor that makes recommendations to the legislature. She asked that the claim be dismissed or, it it’s heard, that the commission canvass all uncounted absentee ballots as well as determining how votes were cast by the improperly counted ballots.
Sorvillo had earlier sued to prevent certification of the results because the vote totals in the race included as many as 32 provisional absentee votes that had been disqualified for technical problems. It is not known how those votes were cast, but Sorvillo argues they could have changed the outcome. Hudson won about 65 percent of absentee votes while Sorvillo carried in-person voting,
Circuit Judge Wendell Griffen dismissed Sorvillo’s suit seeking a new election, saying it was not ripe until the County Election Commission certified the election. Sorvillo appealed that decision to the Arkansas Supreme Court after the election was certified. Sorvillo’s attorney, A.J. Kelly, hasn’t responded to my question of whether this means the Supreme Court appeal will be dropped. But Hudson’s attorney, Jennifer Waymack, notes that the case is still pending and the Supreme Court has approved an expedited schedule.
Sorvillo’s claim repeats some allegations made in his original lawsuit about other problems with election day voting, such as a shortage of proper ballots at one polling location. But they seemed typical of election day glitches and were corrected, election commission staff has said. Hudson’s response disputes any errors resulted from these problems cited by Sorvillo.
In the course of the Circuit Court proceeding, Griffen rejected a filing by Secretary of State John Thurston, a defendant in the suit, that said the state Claims Commission, not circuit court, was the place to determine the outcome a challenge of a House election. There is a procedure under a law Thurston cited. It says a challenger may file a petition with the commission within 15 days after an election is certified (Nov. 17 in this case.) Then, the law Thurston cites says:
For House of Representatives election contests, the complaint shall be filed within fifteen (15) days after the election returns are certified by the county board of election commissioners. A responsive pleading shall be filed by the House of Representatives contestee within fifteen (15) days after receipt of the complaint unless an earlier or later date is set by the commission for good cause shown. Upon receipt of the complaint, the commission shall establish a schedule for discovery and hearing, which schedule shall allow the commission to take and review evidence presented by the parties and submit a nonbinding recommendation to the House of Representatives no later than five (5) days before the date fixed for the assembling of the General Assembly.
Taking the case to the Claims Commission increases the partisan flavoring.
The current five members of the Commission — Courtney Baird, Dexter Booth, Henry Kinslow, Paul Morris and Sylvester Smith — are all appointees of Republican Gov. Asa Hutchinson. Their recommendation would go to a House of Representatives with at least 75 Republicans.
Typically, a panel of three commissioners is named to hear specific complaints. The commissioners on this case haven’t been determined yet, I was told by Kathryn Irby, director of the commission.
Hanging over this contest is the fact that another Republican, Rep. Carlton Wing, won re-election over Matthew Stallings by only 16 votes in a race in which 38 disqualified absentees were erroneously counted. Again, how those votes split isn’t known.
Hudson’s lawyer said the count of 32 improperly counted ballots appears by their examination to be incorrect, and the number was actually 27. She also said there was no evidence any voter was denied a vote or voted on the wrong ballot. She also said mathematical probability suggests Hudson would be the winner if the 27 votes were identified and disallowed. She won 65 percent of absentees and need only two of the 27 to still win. Finally, she said to disqualify votes, Sorvillo must produce evidence of how individual voters voted.
The Hudson response also raised questions about whether the County Election Commission had improperly invalidated some absentee ballots, such as for failure to put absentee materials in the proper envelope It challenged disqualification of 12 ballots of signatures that did not “match,” when the statute says they only must “compare.” Also, some people weren’t given notice of an opportunity to cure a failure to include ID, as the law requires, or for minor clerical errors.
Respondent requested the voter materials for all uncounted ballots for the 32nd District. Those have not yet been provided. However, if the Claims Commission deems it appropriate to consider Claimant’s claims for relief, it should first re-canvass the voter materials for all uncounted ballots in the 32nd District, declare those ballots that were erroneously disqualified to be legal votes, and order them to be counted. No vote should go uncounted due to an error or mistake.