Court Decision on Hand-Counting Ballots
By Terry Noonkester, Plaintiff
County Clerk Dan Loomis will not allow a petition for placing the following question on the Douglas County ballots: “Shall votes cast by Douglas County Electors be Hand-counted?”
The Clerk has denied 6 similar petitions stating they do not meet the constitutional requirements because it “is not a matter of county concern” and “is not legislative”. The petitioners have asked the Clerk for the definitions of the definitions that he used. His answer was “The statute to does not require me to state why I’ve made the determination that I did, but simply to state my conclusion, which I have done.”
Loomis has said “…if the petition had been filed correctly, he would have proceeded to allow the petitioners to begin gathering signatures.” The petitioners have been asking how to file it correctly, but the clerk claims that would be giving legal advice.
The appeal of the denial for the last petition was denied by the court as untimely, but three issues survived until the Clerk’s “Motion for Summary Judgement”. The petitioners demand for the two definitions used by the clerk has been denied by the court. The court decided in favor of the Clerk because “there is no law cited by either side that would allow the court to require the clerk to explain itself, other than in an appeal of the denial, which is not the matter before the court.”
The petitioner also demanded that the Clerk should not be permitted to deny a petition that changes the duties of his own job of conducting elections.
The change would be from counting the votes with computer tabulators that the clerk considers safe, to using hand-counting that he described in a NPR news article with the statement “Loomis said he compares the accuracy of counting ballots with humans to his former career as an aircraft crash investigator. “80-90% of all accidents are human error.”
“No one should be judge in his own cause.” Is an old proverb that became a legal principle. “Whatever disagreement there may be in our jurisprudence as to the scope of the phrase ‘due process of law’, there is no dispute that it minimally contemplates the opportunity to be fully and fairly heard before an impartial decision maker.”
(Catchpole v. Brannon (1995).
The Court’s ruling included the conclusion that “If the clerk has improperly denied the initiative a place on the ballot and that denial is appealed, presumably he would need to defend the decision on appeal, and it would be an unlikely defense to offer that the clerk personally does not want the change to be made.
The Judge Jason Thomas, of Douglas County Circuit Court has found in favor of Douglas County Clerk Loomis on all three issues that survived the 1st “Motion to Dismiss”. The Clerk does not have to give petitioners the two definitions of why he denied the Hand-counting Petition, and the court finds there would be no likely conflict of interest if another article is filed.
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