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There will be a recount in the 121st Legislative District race. What follow are the documents pertaining to the proceedings in a recount.

“Notification of Recount” for the 121st Legislative District race from Missouri Secretary of State Robin Carnahan.

STATE OF MISSOURI

Office of

Secretary of State

NOTIFICATION OF RECOUNT

Pursuant to Section 115.601, 3, RSMo.

THE MISSOURI SECRETARY OF STATE

To the Johnson County Clerk:

WHEREAS, I have been duly notified that the results of the General Election November 4, 2008 for the Office of State Representative, District 1211, established the defeat of one candidate by less than one percent of the votes cast; and

WHEREAS, I have been requested by Jim Jackson, the candidate who received the second highest number of votes and was defeated by less than one per cent of the votes cast, to hold a recount of the votes in the race for State representative, District 121, pursuant to Section 115.601, RSMo.

NOW THEREFORE, I ROBIN CARNAHAN, SECRETARY OF STATE OF MISSOURI, do hereby issue this Notification of Recount to the Johnson County Clerk and further authorize the Johnson County Clerk to recount the ballots cast in his jurisdiction during the November 4, 2008, General Election for the Office of State Representative, District 121. The recount of ballots in this jurisdiction shall be conducted according to procedures directed by the Secretary of State. The Johnson County Clerk shall certify and deliver results of this recount to the Secretary of State’s Office on or before December 19, 2008.

[Seal of the Secretary of State]

IN TESTIMONY WHEREOF, I

herunto set my hand and affix the

Seal of my office. Done at the City

of Jefferson, this 4th day of December,

2008.

[signed: Robin Carnhan]

Secretary of State

The Secretary of State’s office issued a memo outlining the documents and procedures used in the recount:

ROBIN CARNAHAN

SECRETARY OF STATE

STATE OF MISSOURI

PO BOX 1767 • JEFFERSON CITY, MISSOURI • 65102

http://www.sos.mo.gov

JAMES C. KIRKPATRICK

STATE INFORMATION CENTER

(573) 751-4936

ELECTIONS DIVISION

(573) 751-2301

MEMO

TO: Johnson County Clerk

FROM: Michael Bushmann

Deputy Secretary of State for Elections

DATE: December 4, 2008

RE: Notification of recount

Enclosed are the official Notification of Recount and related documents for conducting the

recount of the race for State Representative, District 121:

1. Notification of Recount

2. Recount procedures and timeline

3. Schedule for recount

4. Report of findings

5. Tally summary sheet

6. Recount checklist

7. Oath

8. Rules 15 CSR 30-9; 15 CSR 30-10.010, 10.040, 10.140

9. Dolan v. Powers

Should you have any questions regarding these materials, please call our office at

(800) 669-8683.

Enclosures

There’s a certain irony to having the standard recount documentation which includes a court precedent from a previous recount case sent to the County Clerk whose name is on the actual precedent.

In the following document “LEA” refers to “Local Election Authority” (in this case, the Johnson County Clerk, Gilbert Powers); “DRE” refers to the electronic voting machine (in this case, Diebold touchscreen machines).

MISSOURI SECRETARY OF STATE

OFFICIAL PROCEDURES AND TIMELINE

RECOUNT OF NOVEMBER 4, 2008 STATE REPRESENTATIVE,

DISTRICT 121 RACE

The recount of the November 4, 2008, State Representative, District 121 race will be conducted under the following timeline and procedures established by the Missouri Secretary of State in accordance with Section 115.601, RSMo.

This comprehensive recount is designed to ensure that the final results are complete, accurate and reflect the intent of every voter. To do this, every ballot should be manually reviewed as set forth in these procedures. You will note that these recount procedures provide for a combination of human review, electronic counting, and hand tallying to ensure the most accurate, efficient, and fair recount possible.

Timeline

Activity Deadline

SOS send procedures to LEAs & candidates 12/4

LEAs FAX recount date/time/place to SOS 12/5 by 4:00 p.m.

SOS sends spreadsheet with schedule of recount date/time/place to candidates 12/5

Candidates send “disinterested person” lists to SOS 12/8

SOS sends lists of disinterested persons to LEAs ASAP

Deadline for return of certified findings to SOS 12/19

SOS certifies recount results 12/23

PROCEDURES

Selection and notification of disinterested persons

1. Only the LEA, LEA staff, bipartisan teams, the contestant (or his attorney), and contestee (or his attorney), and the appointed disinterested persons (two persons per candidate for each jurisdiction), shall be present during the recount.

2. The two candidates shall provide to the Secretary of State a list of disinterested persons to assist in the recount. These disinterested persons shall be selected pursuant to Section 115.601, RSMo. They will observe the recount and sign the Report of Findings.

3. The Secretary of State shall deliver the list of disinterested persons appointed to assist in the recount to each LEA.

4. The LEA shall administer the oath to all participants identified in step 1, including the contestant (or his attorney), contestee (or his attorney), and their disinterested persons.

5. LEAs will use the list of disinterested persons provided by the SOS and ensure that only two of the named individuals from each candidate (four total) are allowed to participate.

Administration of recount

1. Only LEA, LEA staff, bipartisan teams, the appointed disinterested persons, the contestant (or his attorney), and contestee (or his attorney) may be present during the recount.

2. The LEA shall administer the oath to all participants identified in step 1, including the contestant (or his attorney), contestee (or his attorney), and their disinterested persons.

3. The disinterested persons present shall sign the Report of Findings, along with the local election authority. If disinterested persons are not present for the recount, the local election authority shall be the only signer of the Report of Findings.

4. The following original forms specified by SOS shall be returned to the SOS no later than December 19, 2008.

. Report of Findings (provided)

. Oath (provided)

. Tally summary sheet (provided)

The LEA shall also keep copies of these documents in its office.

5. The LEA shall pay all election judges and disinterested persons from local funds using appropriate local forms and procedures.

6. No documents or copies of documents, other than the Report of Findings to the Secretary of State, shall be released to anyone present at the recount, although the candidates and disinterested persons may receive copies of the oaths they execute. (Sec. 115.601.4, RSMo)

Ballot counting – optical scan

NOTE: Only the LEA, LEA staff, and the bipartisan teams will conduct the recount, without additional assistance. Everyone else may observe, but may not handle the ballots.

1. After all participants have been sworn in, the LEA will conduct a test of the voting equipment to be used in the recount. The test deck shall consist of General Election ballots marked as

follows:

3 with votes for Hoskins;

2 with votes for Jackson;

1 with no votes for any State Representative, District 121 candidate (undervoted);

1 with votes for at least two State Representative, District 121 candidates (overvoted).

Refer to 15 CSR 30-10.040 and 15 CSR 30-10.140 (copy enclos
ed).

2. The LEA shall break the seal on ballots.

3. Only ballots with votes for State Representative, District 121 shall be counted. The bipartisan team shall sort the ballots as follows:

Group A) Ballots with a distinguishing mark in the designated area for a State Representative, District 121 candidate. (This does not include overvotes.)

Group B) Ballots without distinguishing marks, or with marks outside the designated area for a State Representative, District 121 candidate. (This includes undervotes and overvotes.)

4. For these ballots:

Group A) Prepare for counting through optical scan tabulating machine.

Group B) Review to determine if there is any distinguishing mark of voter intent, in accordance with the current Counting Standards (15 CSR 30-9.020), a copy of which is enclosed. See also Dolan, et al. v. Powers, et al., (WL220223)

(Mo.App.W.D. January 29, 2008), a copy of which is enclosed (Ballots containing marks in or around a candidate’s party affiliation constitute a distinguishing mark adjacent to the party name.) Prepare for hand-tallying.

5. The bipartisan team, under the observation of the disinterested persons, shall feed the ballots in Group A above, face-up, into the counting machine(s). During this process, participants will also be watching for any distinguishing mark of voter intent, as described above. The results of the electronic recount will be recorded on the tally summary sheet (form provided) and added to the final results in the Report of Findings.

6. For the ballots in Group B above, the bipartisan teams, observed by the disinterested persons, will determine whether there is indication of voter intent in accordance with current Counting Standards regulations and the Dolan case and record those votes on a tally sheet. Regular tally sheets should be used for this purpose. These results will be recorded on the tally summary sheet (form provided) and added to the final results in the Report of Findings.

7. Post Test. After the electronic recount is completed, the LEA shall run a post test of the voting equipment using the test deck used in Step 1.

Ballot counting – DREs

NOTE: Only the LEA, LEA staff, and the bipartisan teams will conduct the recount, without additional assistance. Everyone else may observe, but may not handle the paper trails, containers, and DREs.

1. The LEA shall break the seal on the DRE component that contains the voter verified paper audit trail and retrieve the paper trail.

2. The voter verified paper trail shall be examined by the bipartisan team and the votes hand tallied for the State Representative, District 121 race using a separate tally sheet. The results will be recorded on the tally summary sheet (form provided) and added to the final results in the Report of Findings.

3. In the event that the voter verified paper trail is not usable for the recount, the LEA shall next use the audit trail* from each DRE that was created contemporaneously with the voter verified paper trail (*as defined in 15 CSR 30-10.010), and proceed with the process described in #2. The LEA shall then separately seal and secure any such DRE component for possible further inspection.

Report of Findings

The bipartisan team shall record the total result from the tally summary sheet on the Report of Findings form. The disinterested persons present shall sign the Report of Findings, along with the local election authority. If disinterested persons are not present for the recount, the local election authority shall be the only signer of the Report of Findings.

The Report of Findings form shall be returned to the Secretary of State’s office with the oaths and the tally summary sheet. The LEA shall retain copies of all these documents in its office.

Exception

The above procedures shall apply except as otherwise agreed to by both candidates and approved by the SOS. Any exceptions to the above procedures shall be submitted to SOS in writing and signed by each candidate no later than 5:00 p.m. on December 8, 2008.

The Secretary of State’s office issed a checklist:

RECOUNT CHECKLIST

State Representative, Dist. 121

____Lock door(s) to counting room

____Note all persons in attendance (No unauthorized persons in attendance)

____Ballots are locked up

____County clerk swears in all attendees, other than Secretary of State officials

____County clerk unlocks ballots

____Remind attendees that, pursuant to their oath, they are not allowed to disclose any details from this recount

____Manual recount begins

____County clerk re-locks ballots

____Complete Report of Findings

____Obtain signatures on Report of Findings

____County clerk certifies results

____Door(s) may be unlocked

Considering the procedures outlined above, this is a bare bones checklist.

All parties present at the recount take an oath:

I solemnly swear that I will impartially discharge the duties of judge according to law, to the best of my ability and that I will not disclose how any voter has voted unless I am required to do so as a witness in a proper judicial proceeding. I also affirm that I will not allow any person to vote who is not entitled to vote and that I will make no statement nor give any information of any kind tending in any way to show the state of the count prior to the close of the polls on election day.

I further swear that I will not disclose any facts uncovered by the recount, except those which are contained in the Report of Findings.

Sworn and subscribed to before me this … day of …, 20..

…………………….

Judge of Election

…………………….

Election Authority (Judge of Election) witnessing oath

Interestingly enough, it is the election judge’s election day oath. Some of the prohibitions contained herein don’t actually have any bearing on a recount, but this is the oath required by statute.

According to statute only information contained in the “Report of Findings”, signed by the disinterested parties and the local election authority, can be publicly divulged:

REPORT OF FINDINGS

STATE REPRESENTATIVE, DISTRICT 121

RECOUNT GENERAL ELECTION

NOVEMBER 4, 2008


_________________________________________________

County/Jurisdiction

___________________________________________

Name of Local Election Authority

We the undersigned hereby certify that the recount conducted of the State Representative, District 121 General Election race revealed the number of votes cast for these candidates was as follows:

Number of Votes

Denny L. Hoskins ______________

Jim Jackson ______________

Disinterested persons assisting:

___________________________

___________________________

___________________________

___________________________

____________________________________________________________________________

Local Election Authority

If the verifiable paper trail is not usable then the machine audit trail is used. If that’s the case the machine is to be sealed. Though, if there is no way to notate such in the Report of Findings no one other than those present will know of the failure of the voter verified paper trail. And if it’s not in the Report of Findings, no one can talk about it.

That’s one good reason for the parties to the recount having an attorney present.

See also the Uniform Counting Standard (pdf) in the Missouri Code of State Regulations and C. Kay Dolan, Respondent, and Monica Penrose, Plaintiff, v. Gilbert Powers, Defendant, and Teresa A. Collins, Appellant and Lynn Stoppy Brackin, Def
endant.: WD68098
(rtf). The appeals court held (in part):

…Ballots containing marks in or around a candidate’s party affiliation were properly counted, as they constituted distinguishing mark adjacent to the party name…

In addition to the examples in the Code of State Regulations the appellate decision should inform the judgement of ballot judges.

The process gets messy if there’s a lack of consensus on a particular ballot. Again, that’s why there will probably be attorney’s present.  The “disinterested parties” can refuse to sign the report if they dispute the contents. Ultimately any dispute in this particular recount would be resolved by the Missouri House of Representatives.

We should know the date(s) for this recount by the close of business today.