After the unexpected tie in the historic 13th District recount conducted by the Daviess County Clerk’s Office Saturday, officials were unsure what to expect next in the contested election between Jim Glenn and DJ Johnson. The clerk’s office filed a report Monday with the special-formed House of Representatives committee that requested the recount as a part of their investigation.
According to Chief Deputy Clerk Richard House, the clerk’s office received an email Tuesday from the Clerk of the House of Representatives asking for the Daviess County Board of Elections to speak to the committee on Friday.
“We don’t know what it’s regarding,” said House, who assumes he will be asked about Saturday’s recount process.
House said he, along with Major Barry Smith of the Daviess County Sheriff’s Office and County Attorney Claud Porter, will address the committee in Frankfort on Friday.
After receiving a copy of that report, Glenn’s attorney Anna Stewart Whites filed a motion to disqualify Johnson’s lawyer, who she says violated the recount process by interfering with the decision making of the board of elections over one specific ballot.
Whites’ motion states, “During the recount process, DJ Johnson and his counsel intentionally, obviously, and has been reported not only by Representative Glenn’s observers, but by the media, approached and pressured election officials to alter the vote count and, with particularity, to grant DJ Johnson an additional vote.”
According to House, Johnson’s attorney spoke to Porter Saturday, but he said he did not see Johnson speak to the board.
“I didn’t in any way try to sway their decision making,” said Johnson, who was present for the all-day recount process. “I made a general comment to the board that I would accept any decision they made.”
Whites is referring to a ballot from Precinct 7, where the box for a straight-party Republican vote was partially filled in and then a solid line marked through the entire box and “Republican Party” text. Boxes throughout the ballot were then colored in completely for different candidates, however, the 13th Legislative District race was left blank. On Election Day, the voting machine counted this ballot for Johnson.
The board of elections discussed the ballot and unanimously decided the intent of the voter was not to vote straight-party and took away a vote from Johnson early Saturday. The report filed by the clerk’s office states the ballot was shown to the stakeholders present at the recount and Associated Press reporter Adam Beam tweeted an image of the ballot. “The representatives from DJ Johnson then questioned the move and asked for clarification based on 31 KAR 6:030 Section 5,” the report states.
After consulting Porter, the board revisited the ballot at the end of the process Saturday. Porter and the board discussed the regulation, which defines the definition of a paper ballot vote, giving specific examples of marking, including the use of a line. The board unanimously appealed their original decision and gave the vote back to Johnson.
Whites claims that Johnson’s attorney interfered with the election, which she says is a Class D felony. Whites has requested Johnson’s attorney be disqualified from the case and for the House committee to consult the attorney general on the matter. Whites also asked the committee to remove the altered vote from the count as spoiled, which would give Glenn a one-vote win over Johnson.
“This case places the County Board of Elections under a lot of pressure,” Whites said. “We believe they felt directed.”
Whites also argues that the 17 rejected absentee ballots should never have been opened.
“This is not what we do in elections,” Whites said.
Of the 17 absentee ballots in question, only 12 were in the 13th District. “Ballots that did not have signatures on the outer envelope or inner envelope were immediately rejected per statute,” the report states. “Next, ballots that contained no inner envelopes or detachable flaps were rejected per statute.” This left five ballots for review that were all previously rejected for signature issues.
The board made the following rulings on these ballots:
- The first ballot was initially rejected because the signature was not properly signed on the front outer envelope. The board found the signature on the back of the outer envelope at the seal. With Porter’s counsel, the board agreed to count this ballot.
- The second ballot was rejected because the signature was in the wrong place on the inner envelope. The board decided to accept this ballot after discussion and advice of counsel.
- The third ballot was originally rejected because the signature did not match, but the board identified to be so because a power of attorney had signed the application. On advice of counsel, this ballot was accepted.
- The fourth ballot was rejected because the signature didn’t match. With discussion, the board noticed that the voter was in an assisted living facility. “It was assessed by the board that they could have had health issues which may have created the discrepancy,” the report states. The vote was counted.
- The final ballot was rejected because the voter signed on the assistance line rather than the voter’s signature line. “The board going on a prior determination counted this ballot,” the report states.
According to Whites, the board should not make assumptions of voters, noting they took into consideration one ballot that came from an assisted living facility.
“We are urging the committee to further investigate before a potential coin toss,” Whites said, pointing out that a seated representative cannot be impeached with the flip of a coin.
The committee’s decision after hearing from the board of elections Friday will not be final. According to both Whites and Johnson, should a coin toss be the committee’s deciding factor after a tied recount, that result will be put before a full House vote, potentially including seated 13th District Representative Glenn.