HD 12 controversy heads for the courts
The outcome of the House District 12 tie vote between Democrat Jeanne Windham and Constitutionalist Rick Jore may be a step closer to settlement this week, but the situation was still not settled at the Leader's deadline Tuesday night.
Among developments during the past week:
? Lake County Attorney Bob Long on Monday was compiling an "agreement of the facts" to hand over to a district court judge assigned to the case. There are seven double-marked ballots being contested by Windham, all of which were counted for Jore. And there are three ballots that were given to Windham that Jore may be questioning.
? The Helena District Court has enjoined the State Board of Canvassing from certifying the recount until the facts come before a judge on Thursday (today). That hearing could result in an injunction against the state canvassing board certifying the results. The four member State Board of Canvassers, three of them Democrats, will abide by the order.
? On Monday, Windham's attorney Mike Meloy of Helena petitioned the State Supreme Court asking that the seven double-marked ballots be thrown out and to declare Windham the winner.
State law provides for the Governor to appoint the representative in case of a tie.. But the order enjoining certification effectively blocks any action on the part of Republican Governor Judy Martz to make an appointment at this time.
In the meantime, various parties chimed in with remarks reflecting their positions.
Montana Republican chairman Roy Brown (no relation to Secretary of State Bob Brown) termed the Windham suit a "ploy" to delay settlement until such time that Gov.-elect Brian Schweitzer would assume the office.
Present House minority leader Dan Wanzenreid of Missoula countered that the move was not a stalling tactic, but that a quick resolution was desired to ensure the proper candidate is seated.
On Monday of this week, the Constitutionalist party entered the fray.
Party chairman Jonathan Martin asserted the Democrats involved only seek to delay the process long enough for Schweitzer to be sworn in as governor, upon which Democrats would expect Schweitzer to hand the contested seat to a member of his own party.
Martin contended the state law allows "the Democrat candidate to file a legal protest over contested ballots, but only after the Secretary of State and Governor have done their jobs. The Democrat candidate could conceivably even win the seat by playing the by the rules. What we object to is the end-run attempted around existing law by the delaying tactic of the injunction filed in Helena."
The recount drama began after the official county canvass Nov. 9. Because it was a state legislative race, the county canvass results had to be certified by the state later in November. The state certified the county canvass that had Jore leading by two votes.
Windham requested and was granted a recount. At the end of the counting Monday, Nov. 29, Jore had 1,560 votes to Windham's 1,559 and Cross' 1,108. But there was a discrepancy between the machine count and the hand recount.
To assure accuracy, another recount of Precinct 11 was done Tuesday morning of last week and Windham led by one vote, 1,159 to 1,558 and Cross' total dropped to 1,107. But the recount board found 1,020 ballots were counted. There should have been 1,021 ballots cast in Precinct 11.
A third recount of Precinct 11 ballots resulted in the machine count and hand recount balancing. In other words, the machine count was correct, while the hand recount had erred. Result: A tie with 1,159 votes apiece for Windham and Jore.
At issue are the double marked ballots. Ovals beside both Jore's name and Republican Jack Cross' name were filled in, but an X drawn over the oval by Cross name negated a vote for Cross, the recount board felt, and counted it for Jore.
The questionable ballots were included in the single vote margin.
Commissioner Dave Stipe said that the commissioners were confident that their decisions on the ballots would be upheld in any court action.
The HD 12 outcome will have statewide repercussions. If Windham wins, the Democrats and Republicans would be tied at 50 representatives each, but the position of speaker of the House would go to the Democrats because a Democratic governor was elected. If Jore wins, the Republicans would hold a 50-49 margin.
In the November election Democrats gained a four-vote margin to control the State Senate.
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