Repub skips recount, appeals to House to win

Part of the Jim Glenn Case series


After losing his Kentucky House race to Jim Glenn by one vote, Republican D.J. Johnson has bypassed the normal recount process and appealed directly to the House of Representatives to carry out their own recount.

In a close race, a recanvas is when the vote totals are checked for accuracy, but individual votes are not looked at. A recanvas is typically done free of charge to the candidates. A recount, on the other hand, involves looking at each individual vote, and is charged to the candidate asking for the recount. A typical recount can cost $25,000 or more, so most candidates for seats like state legislator decide that is more than their campaign can spend.

Johnson, though, has decided to bypass the normal recount process, and has filed a notice with the Clerk of the House that he wishes to contest the election in the House itself. He is using an old statute wherein the names of all the House members are put on skips of paper and placed in a box, then the clerk draws out 5 to 9 names. Those names then make up the recount committee, and they do a manual recount of the ballots.

There is a later statute that lays out today’s practice of filing a recount petition with the courts. This is the statute that Johnson ignored in appealing to the House.

The issues involved

  • Note that the House is not required to take up Johnson’s appeal. They can choose to ignore it, or vote on taking it up and the motion failing. They cannot act on it until the House convenes in January, but they can take discovery on it before then. BUT, that discovery must cease 10 days before the session starts, so if they are going to do discovery, they have only a few days to do it.
  • Also, the House is not required to honor the outcome of an election and seat everyone who wins an election, as the House has the right to determine its membership. There is already some discussion of the House refusing to seat Glenn. If they did that, though, it would immediately go to the courts, AND there would be concern that the losing party would try the same thing whenever the majority switches.
  • The Johnson motion notes that there were voters who did not sign the poll register, and says that this should invalidate their vote. The motion states that signing the poll book is required by law. Glenn’s attorney says that the only requirement is that the voter either provide adequate identification or be known by the poll worker; there is no requirement to sign the poll book.
  • The problem with this part of the motion, of course, is that there is no way to know how those voters voted without singling them out and asking them how they voted, thus breaking the privacy of the election process. If you do not know how they voted, how can you know whether or not their vote changes the outcome?
  • The motion also notes that seventeen absentee ballots were rejected by the local election board, and says those absentee ballots should be counted. The problem here is that the bipartisan local board unanimously rejected the ballots, and courts have almost never overturned such bipartisan, on-the-ground decisions.

Ultimately, the basis for Johnson’s motion involves overriding both the local election board and the normal process for handling recounts, and instead putting the outcome of an election into the hands of a partisan body. This undoes the rights of voters to elect their representatives and have their votes count.

More to come.