Not All Elections End on Election Day
Jim L. Burdge
This article originally appeared in Winning Campaigns Magazine.
The Saga of a Lost Campaign Being Won
As campaign consultants we must offer our clients more than just the usual fare of voter targeting, issue research, polling, message crafting, and all the nuts and bolts of campaigning.
We must be aware of the election laws and the procedures used by local election officials to conduct the elections and enforce these laws. In close elections, the consultant must be ever vigilant for anomalies and obvious changes in voter patterns on a precinct-by-precinct basis.
A case in point is a recent election for a City Council seat in Tulsa, Oklahoma. Oklahoma is a closed primary state. Voters may only cast ballots for the Candidates in their own party. The primary election was held on February 3, 2004. In addition to the local primary, the Presidential preference primary was held on the same day. There were no Republican candidates for the City Council seat; so the ballots consisted of one Democrat ballot for the Presidential primary with nine candidates, one Democrat ballot for City council with two candidates and one Republican Presidential preference ballot with two candidates.
When the vote was counted, my candidate had lost by only four votes. By Oklahoma law, the losing candidate has until five o’clock P. M. on the next Friday to request a recount or file a petition of protest to challenge the results of an election.
As is true in all close elections, rumors and accusations abounded. This election was no exception. There were tales of voters being turned away from the polls, voting machine glitches, and polls opening late and closing early, all the usual rumors. However, in an election this close we attempted to confirm all rumors. By comparing the voter list that had been run through the National Change Of Address directory, I found 117 voters who had voted in the February 3rd election that no longer resided at the addresses listed by the Election Board in that district.
Over the next two days, we discovered that one voter was registered at a vacant lot, several were registered at boarded up houses and some had moved and left no forwarding address. We contacted some of these other voters and confirmed they had returned to their old precinct to vote. On February 6, 2004, my candidate filed for a recount and for a hearing on irregularities. A hearing was set for February 19th, 2004.
During the many visits to the Election Board verifying my findings, I was informed that it was not illegal for people to continue to vote at their old addresses. After careful review, we concluded that we should hire an attorney to argue our case. The legal nuances were complex enough that we needed legal council to present our evidence. On February 12th my candidate hired an attorney to represent him at the February 19th hearing.
Most of the rumors we investigated turned out to be just that, rumors. The one rumor that turned out to be not only true, but also the single lead that changed the course of our protest was passed on to me by another city council candidate.
The other Councilor, also a client of mine, called to let me know that his daughter, a schoolteacher, had a conversation with another teacher about the elections. The other teacher mentioned to the councilor’s daughter that she had voted in the protested election. His daughter was surprised and said, “I thought you were a Republican? The other teacher responded, “I am, but I voted in the City Council election”. The daughter’s response was, “I don’t think that is legal.” When this information was passed to me I contacted the Republican teacher who claimed to have voted in the Democrat primary and confirmed her story. We prepared an affidavit for her to sign and added that to our list of irregularities.
As we tried to assemble more than four provable irregularities, I was becoming more and more curious about why Precinct 20 had a much larger than normal turnout for this type of election.
There was a 20% increase in total voter turnout compared to previous elections. This anomaly did not occur in any other precinct in the District. On February 17th, I informed the candidate and his attorney that I was convinced that something was wrong with the numbers in Precinct 20 and that I was going back to the Election Board to recheck the totals.
On February 18th, the day before the hearing, I made my last trip to the Election Board. For the first time, I added up the total votes for all nine Democrat candidates for President in Precinct 20 (203). I then hand counted the signatures of all Democrats who signed in to vote on February 3rd. The total signature count was 203. I then added all Republican votes in the Presidential primary, there were 53. I counted the Republican signatures, again an exact match, 53 votes cast and 53 signatures.
When I checked the total votes cast in the City Council race I was amazed to see 255 votes. At that point, I was sure of what had happened. Democrat ballots were given to ALL Republican voters when they came in to vote. We already had one affidavit from a Republican stating she had been given a ballot and that she had voted it. I immediately contacted the attorney with my findings and we set out to subpoena as many Republican voters as we could for the hearing on the following day.
An affidavit was prepared outlining these facts. The Amended Petition was filed as soon as the courthouse opened on February 19th. We arranged for six Republican voters to testify in person that they voted in the Democratic Primary Election for Tulsa City Council District 3 in Precinct 20. The morning of the recount and the irregularities hearing, we provided the opposing attorney a list of our witnesses and advised him six Republicans who had voted in Precinct 20 in the Democratic Primary would be testifying.
The recount narrowed the margin of the outcome of the election to three votes. The law is clear that if three or more people had improperly voted, a new election is required. The Court then convened the hearing on the irregularities petition. The opposing attorney strongly urged the Court to dismiss the case because the original Petition lacked specificity. We argued that the law our opposition relied upon was out-dated and that any deficiencies were corrected by the filed Amended Petition. The Court passed the matter for decision to the next day.
When the irregularities hearing reconvened on Friday, February 20, 2004, the judge dismissed the case on the basis that the original Petition was not specific enough and that because it was not, the Amended Petition could not be considered.
On February 25, 2004, we asked the Oklahoma Supreme Court to assume original jurisdiction and to issue an order requiring the Judge to hear the evidence of the irregularities. We provided the voting records to the Supreme Court together with five affidavits from Republicans who had voted in Precinct 20.
A hearing was held before a Referee of the Supreme Court on March 1, 2004. Before that hearing, opposing council filed a brief with the Supreme Court and filed evidence of his own, primarily the attorneys own affidavit stating that the precinct workers had stated to him that they did not hand out Democratic ballots to Republicans
We presented our argument. The opposing counsel vigorously opposed the Supreme Court's involvement in the case and claimed the trial judge made no mistake dismissing the case.
On March 8, 2004, the Supreme Court ruled in our favor and issued an order requiring the District Judge to conduct an evidentiary hearing on our irregularities petition and its amendment. The District Judge set this matter for hearing on March 12, 2004.
At the hearing for the presentation of evidence of the irregularities in the election, opposing Counsel announced to the Judge in open court that they now believed sufficient irregularities had occurred in the election to require a new election be held. Because the affidavit we had filed in court on February 19, 2004 established Republicans had improperly voted in the Democratic Primary and those facts were not controverted, the trial court ordered a new election.
The Governor ordered the new election for April 6, 2004.
We started a new campaign for the April 6, 2004, election. Because of the controversy and our opponents attempt to have the election certified even after knowing of the voting irregularities, we were successful in defeating the incumbent councilor by over 200 votes. My client was certified as the winner on April 9, 2004 sworn into office on April 13, 2004.