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Wagner appeals county commission recount

July 7, 2018

BUTTE COUNTY –– The issue of who may be the next Butte County commissioner continues.

Karen Wagner, of Belle Fourche, filed a petition for writ of certiorari June 29 appealing the June 25 decision of an appointed recount board that confirmed her opponent James Ager as the victor of the June 5 primary election for the District 1 Butte County Commission seat.

A petition for writ of certiorari, informally called a “cert petition,” is a document that a losing party files with either the circuit or Supreme Court asking the court to review the decision of a lower board or court. The term “writ” refers to a formal written order issued by an agency with judicial or administrative jurisdiction, most commonly a court. The most commonly used types of writ issued include subpoenas, warrants, and prerogative writs, all of which are used to initiate some action.

On the petition, Wagner is listed as the petitioner and Ager the respondent.

According to Wagner’s petition, she claims the recount board did not follow the recount procedure required by law. The board, consisting of Jonette Burns, Rodney Bean, and Tim Barnaud, was appointed by 4th Circuit Court Judge Michael Day to perform the June 25 recount.

Wagner alleged that, contrary to the recommendation of the South Dakota Secretary of State’s office and the suggestion of the South Dakota Attorney General’s office, state law does specifically address the circumstances in South Dakota Codified Law (SDCL) 5:02:09:05 governing recount procedure. Specifically, Wagner cited section 3, which states, “If any discrepancy remains after subdivisions (1) and (2) have been completed and the total number of ballots in a precinct exceeds the number of names in the pollbook, the ballots shall be placed in a box and the recount board shall draw from the box, the number of ballots that is equal to the excess and place these in an envelope labeled ‘ballots drawn by recount board to justify totals.’”

“And we basically had a discrepancy in the poll book and the number of ballots,” she said.

During the recount procedure, the board performed a hand count, which found discrepancies between the ballot book, which lists the registered voters who cast ballots, and the number of ballots. First, in Precinct 16, one of three precincts within District 1, it was discovered that the number of Republican and non-political ballots recorded on the ballot book and the recap sheet attached by volunteer election workers the day of the election did not match with the number of physical ballots that were hand counted. Election workers recorded 279 Republican ballots and 49 non-political ballots in both the ballot book and attached recap sheet tabulated June 5. But, according to the hand recount by the board, 280 Republican and 48 non-political ballots were cast.

In addition to the discovery of the ballot number discrepancy, an additional vote was found and tallied in Wagner’s favor. The discovery resulted in 215 votes for Ager, and 214 for Wagner, narrowing the gap even more.

Following the June 25 hand count, the board ran the ballots through the tabulator used initially on Election Night, yielding results that mirrored those of the initial count – 215 Ager, 213 Wagner.

During the recount, Barnaud, who was appointed as the referee, said state law designates that in the case of a recount, the hand count is intended to verify those of the tabulator and, therefore, since the result differed, the hand count trumped the twice-consistent results of the mechanical tabulator.

Barnaud speculated that a potential mistake made by an election worker likely accounted for the discrepancy, adding that a Republican ballot may have been given to a voter of another political party. This would result in an extra ballot being tallied where it should not have been. However, there is no way to identify a cast ballot to a specific voter, and therefore, no way for the suspected miscounted ballot to be identified and/or removed.

Because the inconsistency was solely related to the political affiliation of the ballots cast, and the total number of ballots cast matched the total number of those recorded on the ballot books, Barnaud said there is no mechanism laid out by state statute to resolve the discrepancy.

Seeking guidance, the board twice called the Secretary of State’s office and once called the Attorney General’s office.

Kea Warne, deputy secretary of state, spoke to the group via phone during the June 25 recount, advising that the state statute only refers to the number of people who voted as recorded in the poll book, not the accuracy of the numbers with corresponding political party affiliation.

“So I can’t advise you guys (the board) to do anything other than that because there really isn’t a scenario in state law that talks about if the number of people in the poll book that voted don’t match the number of ballots cast; it doesn’t say the ballots cast for a certain party ballot,” she told the board during the call.

Wagner disagrees.

“After further review of the state statute regarding recount procedures, I believe that the recommendation from the Secretary of State’s office did not correspond with the steps set forth in the law,” Wagner said Friday. “So my only recourse is to file a petition through the circuit court and to request further review.”

Wagner said she felt the recount board performed its duties to the best of its ability in following the recommendations given to them.

“This has nothing to do with how they voted,” she said. “They were given a recommendation from the Secretary of State’s office.”

Wagner wants guidance on whether the state statute was followed based on the board’s decision following the recommendation.

“My bottom-line hope is to go back and follow the proper procedure,” Wagner said. “Basically … I believe the (proper) process has not been followed according to state law. So, therefore, the results are inconclusive, and I feel that that potentially means that the election results are invalid.”

Ager said he didn’t fault Wagner’s initial request for a recount.

“In fact, I attended the recount to make sure the election results were fair and accurate,” he said. “Karen and I both observed the due diligence that the State’s Attorney Cassie Wendt, the Butte County Auditor Elaine Jensen, and the recount committee exercised during the three-plus-hour process.”

However, Ager does not agree with Wagner’s decision to appeal the recount results.

“Now, Ms. Wagner is claiming the recount committee didn’t follow the recount procedure – I adamantly disagree with her,” he said.

After multiple phone calls to the offices of the South Dakota Secretary of State and the South Dakota Attorney General seeking guidance on how to proceed throughout the recount, Ager said he is confident the it was conducted professionally and by the book.

“It’s completely understandable that no one likes to lose an election; however, we have many things in Butte County that we need to be spending our citizens’ hard-earned tax dollars on, and pursuing another recount is not one of them,” he said. “We need to get on to the business of figuring out how to fix bridges and roads.”

According to SDCL12-21-50, when a petition for certiorari is filed, “if the court concludes that the facts set forth in the petition, if true, are sufficient to justify the issuance of the writ, the same shall be issued.” It shall be addressed to each county recount board, and to each other authority which the plaintiff claims to have exceeded its jurisdiction, including misapplication of the law in determination of questions concerning disputed ballots, and shall command each such board or authority at or before a time specified to certify to the court all its records and proceedings with reference to such matter. If questions as to validity of any disputed ballots are involved, the writ shall command the county auditor having custody thereof to return at the time designated the sealed envelopes containing the disputed ballots in question.

Wendt said a judge will be assigned to the matter, and once a determination is made, the petition and writ will be served upon the parties involved. If a writ is issued, Ager will be given an opportunity to answer to the allegations and a hearing would follow.

Either way the issue plays out, one or both parties could appeal the decision to the South Dakota Supreme Court.

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