Nebraska

A Lancaster County District Court judge on Thursday dismissed a legal challenge by Lincoln legislative candidate Russ Barger

LINCOLN — On Thursday, a judge in the Lancaster County District Court rejected a legal challenge brought by Lincoln legislative candidate Russ Barger. Barger wanted to force the state to do a hand recount of his 223 votes after he lost the election.

The lawsuit brought by Barger was dismissed by Judge Kevin McManaman based both on a procedural issue and on the merits of the case. Because Barger’s filing did not contain a signature that had been notarized, the judge ruled that his court did not have the authority to entertain the claim.

The Nebraska Attorney General’s Office was represented by Jennifer Huxoll, who argued on behalf of the state. She stated that McManaman was unable to take Barger’s file into consideration since there was no electronic notary present.

Before rendering a decision about a writ of mandamus that was requested, the judge concurred with this interpretation and wrote that “the law of Nebraska is clear that the filing of a motion and affidavit for a verified petition is a jurisdictional prerequisite.”

In addition, the judge agreed with both the office of Secretary of State Bob Evnen and the office of Attorney General Doug Peterson that state law gave the secretary discretion over the method of recounting votes.

According to the decision that McManaman handed down on Thursday, the argument that Barger’s attorney, David Begley, advanced, which stated that several parts of state law and historical practice hint at a preference toward hand recounts, was judged to have “no merit” by McManaman.

The judge came to the conclusion that “the statute simply does not express what Relator asserts,” but that the statute does indicate that the Secretary of State shall monitor recounts.

During the hearing that took place on Tuesday, the judge gave both attorneys the opportunity to discuss the bigger point at the heart of the action, which was whether or not state law required Evnen to carry out the type of recount that was requested by Barger, who lost by more than 1%.

When the margin of votes separating two candidates is less than one percent, the state law requires an automatic recount to take place. A recount must be conducted in the same manner as the election in order to comply with state law, which also mandates that it be done.

The legislation in Nebraska is not as clear as some other states’ laws allowing recounts for candidates who lose by more than one percent. Barger, a Republican, was defeated by George Dungan in the contest for Lincoln’s Legislative District 26. The margin of defeat was 223 votes, which is less than the 1% threshold that would have triggered an automatic recount.

In a letter, Evnen’s office responded negatively to Barger’s request for a manual recount of the votes. The letter said that election officials are required by state law to handle recounts in the same manner as elections, which means using paper votes that are tallied by machines.

Barger had stated earlier in the week that he did not believe that his lawsuit would move on if it was dismissed by the judge due to a technicality in the case. On Thursday, he stated that he requires some time to gather his thoughts over the ruling.

Barger stated that they were in the process of reading the ruling. It is going to be necessary for us to settle on certain decisions regarding the following stages, if there are any.

It was contended by Huxoll of the Attorney General’s Office that any method of recounting the votes that is not stated in state election law is left up to the discretion of the secretary of state, who is the administrator of elections in the state.

Begley had made the claim that “if the Legislature wanted the same procedure to be utilized on a recount as during the election, it would’ve used the same language.”

If the outcome of the election had changed — which was highly unlikely — Barger would have been responsible for paying for any recount that went beyond the margin of error that was automatically applied.

The Office of the Secretary of State anticipated that the cost of a hand recount may reach $11,000. A recount by machine would set you back roughly $6,000.

Barger has stated that his campaign is attempting to fund $25,000 in order to pay for the costs associated with the recount as well as any legal bills. This week, he stated that he would be hesitant to press for the recount if it had to be done by machine instead than a human.

Since former President Donald Trump was defeated in his fight for the 2020 election by current President Joe Biden, a portion of the base of the Republican Party has begun to question the use of voting machines. The loss, on the other hand, was audited and validated in states that are close to being tied.

The Nebraska Republican Party had posted on Facebook that it encourages its followers to attend the hearing on Tuesday, stating that the party is on board with the movement to conduct hand recounts. The hearing was attended by approximately 25 persons. Additionally, Evnen identifies as a Republican.

According to the findings of election specialists as well as independent auditors, machine counts have a tendency to be more accurate than human counts. However, Begley’s memo pointed to a legislative contest in Iowa that saw a Democrat with a lead of six votes change into an 11-vote triumph for a Republican when the votes were hand counted.

Election observers have stated that recounts of votes cast in state legislative contests rarely result in changes of more than a few tens of votes, unless the districts in question are quite large.

On Thursday, Dungan, who is Barger’s opponent, stated that he agrees with the judgement that the court has made and that he is “glad to get this all behind me and get down to business.”

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