Category Archives: recounts

Breaking & Analysis —Commonwealth Court Issues Injunction in PA Republican Primary Recount

The Commonwealth Court of Pennsylvania ruled in favor of Dave McCormick’s petition for a “judicial declaration that ‘timely returned absentee and mail-in ballots may not be rejected due solely to the lack of a date in the declaration on the exterior envelope’” and a special injunction directing various county boards to count such ballots. McCormick argued both state and federal grounds, maintaining that “the dating provisions set forth in Sections 1306(a) and 1306-D(a) of the [PA] Election Code are not material to determining the qualifications of that voter under federal and Pennsylvania law.” In terms of the state law ground, McCormick emphasized that the Pennsylvania Constitution requires that “the Election Code is to be liberally construed so as not to deprive voters of their right to elect a candidate of their choice.”

The Commonwealth Court ruled McCormick is likely to succeed on the merits with respect to both arguments–ordering counties, inter alia, “to provide two vote tallies to the Acting Secretary, one that includes the votes from those ballots without a dated exterior envelope and one that does not” so that “when a final decision on the merits of whether the ballots that lack a dated exterior envelope must be counted or not, the Acting Secretary will have the necessary reports from the County Boards.”    

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As Two Republican U.S. Senate Candidates Anticipate a Recount in Razor-Thin Race, Neither Attacked the Legitimacy of the Vote Counting or the Ballots

This is what happens in a very close race but one that does not pit a Republican against a Democrat:

The legal fight for every single vote in Pennsylvania’s Republican Senate primary has begun.

Armies of attorneys representing David McCormick and Mehmet Oz, separated by a razor-thin margin in the ongoing vote count, had been descending on the state when a federal appeals court jolted the process Friday.

Shortly after 4 p.m., the court ruled that undated mail ballots from Lehigh County in last fall’s election should be counted. That sent counties and campaigns scrambling because state courts had previously held that Pennsylvania law required voters to date their ballots or have them thrown out.

Less than 90 minutes later, the McCormick campaign sent an email blast to lawyers for the state and all 67 counties.

“We trust that in light of the Third Circuit’s judgment you will advise your respective boards to count any and all absentee or mail-in ballots that were timely received but were set aside/not counted simply because those ballots lacked a voter-provided date on the outside of the envelope,” wrote attorney Ron Hicks. “To the extent you are not willing to provide this advice, we ask for a formal hearing before your boards on this issue.”

Hicks is one of Pennsylvania’s top Republican election lawyers. He and his firm, Porter Wright Morris & Arthur, represented the campaign of then-President Donald Trump as he fought his loss in 2020. Hicks helped file a lawsuit aimed at stopping certification of the results in Pennsylvania before abruptly withdrawing from the case — and from representing Trump — days later.

Both the Oz and McCormick campaigns have brought in small armies of lawyers in recent days. But as they geared up for a bruising legal fight, they did not attack the legitimacy of the votes or the process of counting them, a dramatic contrast to the way Trump and his allies smeared the process in 2020.

As of Saturday afternoon, with more than 1.34 million votes counted in the race, Oz had 1,070 more counted votes than McCormick — a difference of less than 0.08% of the vote. By law, a difference of 0.5% or less would trigger a recount….

The fight over mail ballots now puts McCormick in the position of being a Republican defending a voting method that the GOP has spent the last two years attacking. Trump’s lies about election rigging and fraud have pushed Republicans to generally avoid voting by mail.

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Investigation corrects claim that 74,243 Arizona mail-in ballots were counted that had “no clear record of them being sent”

An excerpt from an Arizona Mirror investigation:

The county’s master file, known as the “voted list,” shows each person who cast a ballot in the election — and a letter code indicating whether they voted on Election Day, by mail or at an in-person early voting center. The reason there was no record of mail-in ballots being sent to them was because, like [State Treasurer Kimberly] Yee, they voted early at an in-person voting center during the last 10 days before the election.

[Cyber Ninjas’ Doug] Logan explained to [Senate President Karen] Fann and [Senate Judiciary Committee Chairman Warren] Petersen that he pulled his numbers from two types of reports that the county elections department provides to political parties during the early voting period. One of the reports, known as an EV32, lists every voter who requested an early ballot each day, while the second, called an EV33, shows every voter who returns an early ballot each day.

ABC15 and the Arizona Mirror examined the same records that Logan has, and found 74,241 people who are listed as voting by early ballot but aren’t on the EV32 reports. Of those voters, 74,238 appear in the master file of general election voters. More than 99.4% of those people — 73,819, to be exact — voted in-person at early voting centers. 

Another 392 submitted their ballots by mail and requested them just before the deadline, but the county didn’t process those requests until the next business day, meaning they weren’t included on the EV32 report, election officials said . Another 57 people had recently registered to vote and had separate voter identification numbers — the records were merged after the election — while two other voters mailed ballots that weren’t counted because they didn’t have signatures affixed to them. 

That means Logan, who is in charge of a team tasked with determining whether there were problems with the 2020 general election in Maricopa County, either didn’t take the basic step of checking the names against the master list of voters or knowingly told Fann and Petersen — and, by extension, the world — something that was untrue.

Had Logan checked the voted file, he would have found that nearly every one of those 74,000 names was listed as having cast an in-person early ballot.

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“Maricopa County and Dominion won’t comply with new subpoenas issued by Arizona Senate”

The Arizona Republic:

Maricopa County supervisors and Dominion Voting Systems refused to produce additional election material on Monday in response to new subpoenas filed by the Arizona Senate.

The subpoenas, issued July 26 by Republican Senate leaders, demanded that representatives for the county Board of Supervisors and Dominion appear and produce the materials by 1 p.m. Monday at the state Capitol.

Instead, county officials and a Dominion attorney sent Senate President Karen Fann a letter outlining why they will not comply. However, county officials said they will work with the Senate to provide some documents sought via a public-records request.

Fann, in a released statement, said she saw some progress in the Senate’s efforts to get county cooperation, but took a wait-and-see stance on the refusal to produce subpoenaed materials.

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“Texas audit proposed by GOP would miss minor but real errors”

Associated Press:

A group of Texas Republicans wants to audit the 2020 election results in just the large, mostly Democratic counties across the state. If they get their way, they’ll miss many of the real — but minor — errors in the state’s vote count.

That’s according to a team of researchers that conducted a statewide analysis of the results across both Democratic and Republican counties. The group found a series of errors that would not come close to changing Republican Donald Trump’s victory in the state or any other statewide race. But the errors stretch across both Republican and Democratic counties.

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“Dems sound alarm at prospect of overturning Iowa race”

Politico:

The prospect of a floor vote to overturn a contested congressional race in Iowa has suddenly become a real dilemma for House Democrats’ most vulnerable members.

Moderate Democrats are privately squirming over the possibility that they could be forced to choose a winner in the race for Iowa’s 2nd district, where the GOP candidate, now-Rep. Mariannette Miller-Meeks, won by just six votes — the smallest margin of any candidate in decades. Her opponent, Rita Hart, declined to appeal through state channels and instead took her challenge directly to the Democratic-run House.

A handful of nervous Democrats have spoken up publicly as the House Administration Committee reviews the case. But behind the scenes, more moderates are voicing concern about the dynamics of possibly unseating a GOP lawmaker — particularly after they hammered Republicans for trying to do just that to President Joe Biden, which led to a deadly insurrection in the U.S. Capitol.

The topic even surfaced at a call on Monday between Democratic Congressional Campaign Committee officials and the party’s most vulnerable members — a discussion that, at times, grew tense as lawmakers aired concerns about the looming committee decision.

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“Close GOP Win in Iowa Gets Second Look From House Democrats”

WSJ:

A House committee’s probe of a congressional race in Iowa has become a flashpoint on Capitol Hill, forcing Democrats to explain how reviewing that election outcome differs from Republicans’ efforts last year to overturn several states’ presidential results.

GOP Rep. Mariannette Miller-Meeks took office in January after the Iowa State Board of Canvassers certified her victory over Democratic candidate Rita Hart. She won by just six votes out of the nearly 400,000 total votes cast, following a recount of the entire district. Ms. Hart filed in late December to challenge the results under the Federal Contested Elections Act. It isn’t unusual for candidates to appeal to the House to review a race’s results, but such efforts rarely succeed.

Earlier this month, the House Administration Committee voted along party lines to review the case, and further filings from the candidates are due Monday to the panel. There isn’t a set timeline for the review.

The debate is emerging at a heated time in the House, when many Democrats remain deeply angered with Republicans for echoing former President Donald Trump’s baseless claims that the election was stolen from him. During a joint session of Congress on Jan. 6, some GOP lawmakers unsuccessfully challenged results in several states that President Biden won and rioters mobbed the Capitol to protest the certification of Mr. Biden’s victory.

“The American people deserve to know who actually won this election and the people of Iowa’s second congressional district deserve to be represented by that person,” said House Administration Chairperson Zoe Lofgren (D., Calif.).

In the House race, a successful challenge by the Democrats would bolster their narrow majority, which currently stands at 219-211 with five vacancies.

The Constitution gives states the authority to administer elections, but says each chamber of Congress is the final judge of the elections and qualifications of its own members. The Federal Contested Elections Act sets out the procedures for the losing candidate in a general election to the House to contest the seat.

Rep. Rodney Davis of Illinois, the top Republican on the committee, questioned why Ms. Hart hadn’t pursued her challenge through Iowa’s court system and said Democrats were being hypocritical.

“You cannot complain about anyone questioning election certificates again if you’re willing to do the same with a duly elected member, especially since Rita Hart did not finish the court process in Iowa,” he told reporters.

Ms. Hart’s lawyer, Marc Elias, said in a filing that exhausting the state judicial process isn’t a requirement for challenging the election in the House. The Hart campaign didn’t respond to a request for comment on its decision to not challenge the case in Iowa courts….

Ms. Miller-Meeks had initially led by 47 votes, but Ms. Hart asked for a recount in all 24 counties, which whittled the Republican’s lead to six votes. But the counties used different methods for the recount and Ms. Hart alleged they didn’t count all legal ballots. Ms. Miller-Meeks’s legal team said Iowa law gives counties flexibility in how they choose to count ballots and that Ms. Hart’s campaign pushed in each county for the method that would benefit the Democrat there.

Ms. Hart, a former state senator, is now asking for a “uniform recount” of the results. In investigating previous contests, the Administration Committee has impounded election records and ballots, conducted recounts, examined disputed ballots and interviewed election officials, according to the Congressional Research Service. The committee can issue a report and a resolution with its recommendation on who should hold the House seat, which the chamber votes on.

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“Claudia Tenney to be certified as winner of New York’s 22nd race, judge rules”

Syracuse.com:

 Republican Claudia Tenney will be certified as the winner of New York’s 22nd Congressional District race, a judge ruled Friday, ending a three-month ordeal in the only undecided House race in the country.

The ruling represents the most definitive answer to who won in an election saga with many twists and turns, though it’s not entirely over yet. Democrat Anthony Brindisi has promised to appeal at the state court, and he could seek to contest the election results at the House of Representatives itself.https://9bbfba686363572403305ba1ef9dc273.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

Tenney, of New Hartford, is ahead of Brindisi by 109 votes. She earned 156,099 votes to Brindisi’s 155,989.

State Supreme Court Justice Scott DelConte ruled that counties and the state elections board are to certify the election, rejecting an effort by Democrat Anthony Brindisi, who occupied the seat until November 2020, to keep the election unofficial until his appeal to a higher court concludes.

In ruling against Brindisi, DelConte argued that the Democrat did not provide enough evidence that certifying Tenney would cause “irreparable harm,” given that he still had a remedy at the federal level.

It’s not clear when Brindisi’s appeal will begin. His attorneys announced Friday morning that they will appeal DelConte’s rejection of several hundred ballots that Brindisi wanted counted.

In his ruling, DelConte criticized local elections boards for what he said amounted to “systemic violations of state and federal election law” that affected both candidates. In particular, he singled out Oneida County’s failure to process more than 2,400 applications from voters who registered via the DMV, which rendered them unable to vote on Election Day.

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“NY-22 may come down to DMV voter registrations”

Rome Sentinel:

Who will represent the 22nd Congressional District in Washington may come down to whether nearly 70 people who filled out a voter registration form through the Department of Motor Vehicles were really registered to vote.

The legal teams representing Republican Claudia Tenney and Democrat Anthony Brindisi have filed briefs with state Supreme Court Justice Scott DelConte outlining how they believe he should rule on the paper ballots filled out by more than 60 voters. Brindisi’s filings mention 69 such voters and Tenney’s 64.

It emerged during previous hearings in the court review of the ballot counting that Oneida County election commissioners did not include those ballots because they considered the voters not registered on time.

Commissioners and their deputies said they received registration applications but did not process them as they were overwhelmed with a flood of absentee ballot requests during the COVID-19 pandemic, carrying out recent changes in the law regarding registration, and preparing for the first major general election with 10 days of early voting at multiple polling sites, as well as preparing for Election Day.

Whether they should have may decide whether Tenney’s lead of 29 votes in unofficial tallies holds up.

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Derek Muller: “Iowa’s Second Congressional District Contest Should Be Dismissed for Lack of Exhaustion of State Remedies”

The following is a guest post from Derek Muller about Iowa’s Second Congressional District Contest:

Iowa’s Second Congressional District is officially one of the closest congressional elections in American history. Congresswoman-Elect Mariannette Miller-Meeks led by 47 votes after the official canvass. After challenger Rita Hart requested a recount in all 24 counties, Miller-Meeks led by just six votes. Miller-Meeks received a certificate of election from the state and will be seated, absent an extraordinary move from the House of Representatives, in the 117th Congress.

Hart has filed an election contest under the Federal Contested Elections Act of 1969. Under the Constitution, each House is “the judge of the elections, returns and qualifications of its own members.” In doing so, however, Hart skipped the opportunity to file an election contest in Iowa courts.

Hart’s lead-up to the election contest was a thaumatrope. On one side, the Hart campaign alleged that not all the votes were counted, and every vote needed to be counted. On the other side, the Hart campaign complained that the time to seek an election contest in state court was too short, so the House was the only mechanism for it. Spinning this thaumatrope, the two claims appeared as a single concern.

But now that the contest has been filed, we see two distinct claims. The first are discrete claims about twenty-two ballots that were not counted that the Hart campaign argues should have been counted, amply within the window of a state court contest to resolve. The second are sweeping claims asking for, effectively, a second recount (or a third count) of thousands of ballots, something a contest court would never have entertained because Hart would have been estopped from raising it.

I’ll provide an overall setup of the dispute, then dig into some of the specific claims Hart raises in the contest. I’ll refer to some of the points in the Notice of Contest, but I’ll also refer to relevant facts omitted from the Notice. But in short, Hart raises two types of claims, and both should be dismissed, in my judgment, on fairly straightforward procedural grounds: the first claim should be dismissed for lack of exhaustion; the second claim should be dismissed for estoppel, waiver, or laches.

Continue reading Derek Muller: “Iowa’s Second Congressional District Contest Should Be Dismissed for Lack of Exhaustion of State Remedies”
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Antrim, Michigan Hand Recount Confirms Accuracy of Machine Recount, with 12-Vote Gain for Trump

Detroit News:

An audit of Antrim County election results Thursday gave President Donald Trump a net gain of 12 votes from the certified results in the northern Michigan county. 

Democratic presidential candidate Joe Biden’s total decreased by one vote, from 5,960 to 5,959, while Trump’s increased 11 votes, from 9,748 to 9,759, according to preliminary results from the county’s more than 7-hour, livestreamed audit. Biden won the state of Michigan by more than 154,000 votes on Nov. 3, according to certified results. 

Third-party presidential candidates in Antrim County were off by zero to one vote compared with certified results. 

“This is very typical of what we find in a hand-count of ballots,” said Lori Bourbonais, with the Michigan Department of State. “It is normal to find one or two votes in a precinct that differ between a hand tally and machine count.”

The reliably Republican County has been the center of controversy in the weeks since the election after initial results posted in the early morning hours of Nov. 4 showed Biden ahead of Trump by thousands of votes. Election officials later determined a clerk’s failure to properly update software had resulted in transposed results and Trump actually won the county by more than 3,700 votes. Your stories live here.Fuel your hometown passion and plug into the stories that define it.

But the error triggered a series of unproven fraud allegations regarding Dominion Voting Systems, which Antrim County and 47 other Michigan counties use in elections.

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New York: “Judge orders partial recount in Brindisi-Tenney House race” [Updated with link to court opinion]

Syracuse.com:

A state Supreme Court judge today ordered a partial recount of absentee ballots in the undecided House race between Rep. Anthony Brindisi and Claudia Tenney.

Justice Scott J. DelConte also denied a motion by Tenney’s lawyers, who had asked the court to order the eight counties in the district to immediately certify her as the winner by 12 votes in an election where more than 318,000 ballots were cast.

Instead, DelConte ordered each county Boards of Elections in the 22nd Congressional District to correct their counting errors in the election.

Where it’s not possible to correct the errors, the counties must go back and conduct a manual hand count of the ballots in question, DelConte wrote in a 20-page order.

DelConte wrote that Tenney’s proposal would require him to “ignore multiple errors by the respondent Boards of Elections, disregard proper challenges to invalid ballots that were counted and valid ballots that were not counted…and ignore hundreds of ballots that were never canvassed in the first place.”

The judge added, “That is not the role of the court. The winner of this election must be decided by the real parties of interest: the voters. And to do so, every valid vote must be counted.”

Update: you can find the 20 page opinion at this link.

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