Election Attorney Says Recounts Rare, Expensive; Says Party Would Have To Approve And Requesting Candidate Likely Pay Costs

Clem Says 2 Other State Contests Were Closer Than 10th Senate District

Saturday, August 4, 2012

Hamilton County Election Commission Attorney Chris Clem said Saturday that recounts are rare and costly.

He said it would be up to the state party to request any recount and the requesting candidate would likely have to pay the costs.

Greg Vital said he is seeking a recount of votes in his close loss to Todd Gardenhire in the Republican primary for the 10th state Senate District.

Election officials said Mr. Gardenhire won by 15 votes across the district. The margin was widened to 40 votes after Mr.

Gardenhire picked up 25 votes at Eastdale that were not initially counted.

Attorney Clem said, "We have not had an election contest in Hamilton County since I have become the attorney. Further, we have not had a requested recount since we obtained the new computer scanning voting machines.  I researched Tennessee Code and called the state election office regarding this process.  

"The Hamilton County Election Commission will not certify the election until Aug. 16 at 8 a.m.  Pursuant to T.C.A. 2-17-104 any candidate has five days from the certification to contest a primary.  The state election commission has always said five days from the “last county to certify.”  However, it is possible that the state Republican Party (which has authority over such disputes) may say five days from state certification or five days from the first county to certify. .  

"I know that provisional ballots have not been counted.  The provisional ballots were in sealed election boxes on election night.  The provisional ballots could be people who did not have picture ids. Those people will have until Monday at 5 p.m. to return with picture id in order for their ballots to be counted.

A number of provisional ballots will also be people that claim to be registered but were not on our election rolls. These people may have had their picture ids but for whatever reason they were not on our registered rolls as voters. We will check with the state election commission for each person who filed a provisional ballot under this process.  The state election office basically researches and tells us whether to accept the ballot or not.  There are cases where someone may have been purged who should not have been.  Those provisional ballots are counted. 

"Contested primaries appear to be handled differently than other elections.  T.C.A. Section 2-17-104 appears to vest all jurisdiction for contested primaries with the state parties.  Courts have been held to have no jurisdiction.  So, it appears that the State Republican Party must be appealed to by any candidate wishing to contest the primary results.

"I have already spoken to the state party and the state election commission.  There are a number of very close legislative primaries in Tennessee this primary.  One Republican primary was won by five votes.  Another Republican primary was won by 11 votes.  So this state Senate primary is not the closest primary.  

"Only the state party can hear the request by a candidate for a recount or an election contest.  In other words, the election commission is not the entity that the candidate should appeal to.  And, only the state political party can ask the election commission for a recount.  

"It is not possible to “recount” only one county.  T.C.A. Section 2-17-117 requires all ballots to be recounted, not just one county. This applies to the state Senate primary or the congressional primary.  

"The costs are very expensive should a state party ask for a recount.  Someone must pay for the recount.  Two years ago we had one memory card go bad on one machine. We had to run all the ballots through that machine again.  It took several hours for that one machine.  Hamilton County has several hundred machines.  So, it would costs thousands of dollars to recount all 50,000 ballots in Hamilton County. 

"While Hamilton County has not had a contested election in recent times, the state election office told me that both the Democrat and Republican state parties have required the contesting candidate to pay for such costs in advance.  And, that is assuming the state party agrees to contest the election and ask for a recount, which the state parties have sole discretion whether to accept or not.  It is my understanding that the state parties rarely approve or accept a request by a candidate to contest a primary result.

"In 2007 Democrat Senator Rosalind Kurita was the deciding vote to make Ron Ramsey Senate Speaker over John Wilder.  The next election Rosalind Kurita won her Democrat primary by about 100 votes.  The losing Democrat contested the election.  The state Democrat Party accepted the contest and overturned the result. The Courts refused to interfere. The Courts held that the state parties had total control over primaries. And, in Kurita’s case the Democrat Party even had control to overturn the vote of the primary.  

"Any contesting candidate does not need to wait until Aug. 16 to contact the state Republican Party. I would recommend doing so today if the candidate intends to contest the results and ask for a recount.  I would also suggest finding out how many provisional ballots have been found in Hamilton and Bradley.  

"I have explained all of this to Vital’s attorneys.  Any public press releases by Vital’s campaign is not sufficient to start the recount or contesting process."



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