September 26, 2006 Hamblen County Election Contest (II)

Readers should scroll down and read my previous post (Hamblen County Election Contest I) before reading the trial details provided in this post.

An Election Contest complaint was filed by attorney Paul Whetstone on behalf of County Commissioners Edwin Osborne (1st district) and Bobby Reinhardt (4th district) in connection with the Aug. 3 election. A Trial was held in Hamblen County on September 22. Most of the allegations of Osborne and Reinhardt are found in my previous post (I).

After hearing the testimony of the Petitioners (Osborne and Reinhardt) and petitioners' witnesses as well as the testimony of Respondents (Wanda Neal, Randall Johnson, and Dwaine Evans, Gayle Bruce) and respondents' witnesses, the Court delivered a Memorandum Opinion on September 26.

In his Opinion, Chancellor Corlew pointed out that Petitioners Edwin Osborne and Bobby Reinhardt testified in a firm and straightforward manner. He added that Respondent Wanda Neal testified in a matter of fact but "mildly confrontational manner" and that Election Commissioner Randall Johnson was "vigorous" in his own defense when questioned about his vocal support of a political candidate (Petitioner Osborne's opponent) while serving as a member of the election commission.

The Chancellor pointed out several reasons for the delay in tabulating the election results on August 3. One problem was the length of the Aug. 3 ballot. Other delays occurred because two types of Microvote machines were being used in Hamblen County for the first time.

In addition, delays resulted from Microvote software problems as well as issues connected with the two Microvote "contract employees" who had been provided to help in the tabulation of votes from the new Infinity machines.

Administrator of Elections Wanda Neal stated that these two workers were unfamiliar with the process for tabulating the vote. She also stated that it was her hope that Microvote would send other personnel to Morristown for the November election.

The Chancellor acknowledged the longer-than-normal delay in reporting the final results from the Aug. 3 election but stated that the delay, standing alone, is not significant.

What caused concern for the Chancellor were the clearly erroneous voting reports that were given out at various times during the night.

One of the first reports to be issued that night was a report of early voting totals.

Petitioner Osborne and 11th district commission candidate J. B. Elmore testified that they saw an early voting printout that had the candidates' names reversed and also had clearly erroneous early voting totals for their districts.

Osborne and Elmore pointed out to WCRK reporter Mike Rypel that the vote totals for each of their races were clearly wrong. As a result, Rypel did not report the first totals he had been given on air but, instead, took the report back in to the Election Commission office.

Election Commission Chair Dwaine Evans agreed that the early voting totals in commission races were wrong on this initial report but stated that the names were not reversed.

The Election Commission apparently no longer has a copy of the first erroneous early voting report that Osborne, Elmore, and Evans reviewed.

Later, another printout was provided to the press and to the candidates by the Election Commission. Osborne and Elmore testified that the names were listed in the correct order on the new printout but that the vote totals were still clearly erroneous.

The Chancellor stated that these factors and other coincidences that occurred that night cause the mind "not to rest easy as to the vote count. Thus, because of the combination of all these factors, we find that the Petitioners have carried the burden with respect to their demand for a recount."

In regard to Reinhardt's request that the election be voided due to the Election Commission allowing the use of machine ballots and paper ballots during early voting, the Chancellor stated that this could be interpreted as a violation of T.C.A. section 2-16-104 (which states that the county election commission shall choose one method of early voting, i.e.a race shall be on machine ballots, or a race shall be on paper ballots, or some races shall be on machine ballots and other races on paper ballots).

However, the Chancellor did not void the election because of this possible violation. There was no evidence of fraud in the casting of the two paper ballots, and the individuals would have likely voted by machine had they been required to do so.

The Chancellor did note that this was a very "sensitive" issue because Reinhardt lost by exactly two votes. If the two paper ballots had been for Reinhardt's opponent and if the Election Commission had chosen not to count them, then Reinhardt's race would have ended in a tie on August 3.

The Chancellor also refused to void the election on the basis of Election Commissioner Randall Johnson's vigorous support of Osborne's opponent Paul Lebel who is a business partner of Mr. Johnson's son (Morristown Mayor Gary Johnson).

The Chancellor discussed the importance of elected and appointed officials avoiding "even the appearance of impropriety" in carrying out their duties. While he noted Mr. Johnson's right of free speech, he also pointed out that the "better rule is that of maintaining neutrality and detachment in respect for the grave duties and responsibilities placed upon one as an election commissioner."

Several exhibits (mostly Election Commission documents) at the trial were contradictory.

For example, one document showed that 10,945 total votes had been cast with only 95% of precincts reporting.

You would expect, then, to see a higher number of votes when all precincts had reported.

Instead, another document showed that fewer votes----10,620 votes---- had been cast with 100% of precincts reporting.

CONCLUSION:

The Chancellor determined that the election should not be voided but that there should be a recount. The attorneys for the parties shall get together and agree upon a special Master. If they can't agree, then they will submit names to the Chancellor and a decision on appointment of a Master will be made by the end of the day on September 30.

The Master will conduct a machine and and paper ballot recount. The parties and their attorneys may be present.

The Master will also examine each of the machines used in District 1 (Osborne-Lebel) and District 4 (Reinhardt-Sexton) to make sure that when a voter pushes a button for Osborne that a vote is recorded for Osborne and likewise for Reinhardt.