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.

Jim Jackson (D), who lost to Denny Hoskins (r) in the 121st Legislative District open seat race by less than 1% of the vote in the November general election, filed the paperwork today for a recount with the office of Missouri Secretary of State Robin Carnahan.

Official Election Returns

State of Missouri General Election  – 2008 General Election

Tuesday, November 04, 2008

As announced by the Board of State Canvassers

on Tuesday, December 02, 2008

State Representative – District 121 – Summary

Candidate Party Votes % of Votes

 Hoskins, Denny L. REP 7,004 50.5%

 Jackson, Jim DEM 6,875 49.5%

Total Votes   13,879

The results of the November general election were certified by Missouri Secretary of State Robin Carnahan on December 2nd. Recounts can be requested within seven days after certification.

Missouri Revised Statutes

Chapter 115

Election Authorities and Conduct of Elections

Section 115.601

Recount authorized when less than one percent difference in vote –recount, defined.

115.601. 1. Any contestant in a primary or other election contest who was defeated by less than one percent of the votes cast for the office and any contestant who received the second highest number of votes cast for that office if two or more are to be elected and who was defeated by less than one percent of the votes cast, or any person whose position on a question was defeated by less than one percent of the votes cast on the question, shall have the right to a recount of the votes cast for the office or on the question.

2. In cases where the candidate filed or the ballot question was originally filed with an election authority as defined in section 115.015, such recount shall be requested in accordance with the provisions of section 115.531 or 115.577 and conducted under the direction of the court or the commissioner representing the court trying the contest according to the provisions of this subchapter.

3. In cases where the candidate filed or the ballot question was originally filed with the secretary of state, the defeated candidate or the person whose position on a question was defeated by less than one percent of the votes cast on the question shall be allowed a recount pursuant to this section by filing with the secretary of state a request for a recount stating that the person or the person’s position on a question was defeated by less than one percent of the votes cast. Such request shall be filed not later than seven days after certification of the election. The secretary of state shall notify all concerned parties of the filing of the request for a recount. The secretary of state shall authorize the election authorities to conduct a recount pursuant to this section if the requesting party or his position on a question was defeated by less than one percent of the votes cast. The secretary of state shall conduct and certify the results of the recount as the official results in the election within twenty days of receipt of the aforementioned notice of recount.

4. Whenever a recount is requested pursuant to subsection 3 of this section, the secretary of state shall determine the number of persons necessary to assist with the recount and shall appoint such persons equally from lists submitted by the contestant and the opponent who received more votes or a person whose position on a question received more votes than the contestant’s position on that question. Each person appointed pursuant to this section shall be a disinterested person and a registered voter of the area in which the contested election was held. Each person so appointed shall take the oath prescribed for and receive the same pay as an election judge in the jurisdiction where the person is registered. After being sworn not to disclose any facts uncovered by the recount, except those which are contained in the report, the contestant and the opponent who received more votes or a person whose position on a question received more votes than the contestant’s position on that question shall be permitted to be present in person or represented by an attorney at the recount and to observe the recount. Each recount shall be completed under the supervision of the secretary of state with the assistance of the election authorities involved, and the persons appointed to assist with the recount shall perform such duties as the secretary of state directs. Upon completion of any duties prescribed by the secretary of state the persons appointed to assist with the recount shall make a written and signed report of their findings. The findings of the persons appointed to assist with the recount shall be prima facie evidence of the facts stated therein, but any person present at the examination of the votes may be a witness to contradict the findings. No one other than the secretary of state, the election authorities involved, the contestant and the other witnesses described in this subsection, their attorneys, and those specifically appointed by the secretary of state to assist with the recount shall be present during any recount conducted pursuant to this section.

5. For purposes of this section, “recount” means one additional counting of all votes counted for the office or on the question with respect to which the recount is requested.

Robin Carnahan, the Missouri Secretary of State, has certified the results of the Democratic Attorney General primary recount. State Senator Chris Koster is the Democratic nominee:

FOR IMMEDIATE RELEASE

Thursday, September 11, 2008

CARNAHAN CERTIFIES RECOUNTS FOR ATTORNEY GENERAL DEMOCRATIC PRIMARY AND STATE SENATE DEMOCRATIC PRIMARIES

Jefferson City, Missouri – Missouri Secretary of State Robin Carnahan today announced the certified results from the recounts of the Attorney General Democratic primary election and two State Senate Democratic primaries.

The final results of the Democratic Attorney General primary recount confirmed the victory of State Senator Chris Koster over Representative Margaret Donnelly. The difference between the two candidates after the recount is 829 votes, and the difference before the recount was 780 votes.

Final results of the recount are as follows:  Sen. Chris Koster, 118,934 votes; Rep. Margaret Donnelly, 118,105 votes; Rep. Jeff Harris 86,550 votes; and Molly Williams, 23,140 votes….

….The Democratic Attorney General primary recount is the second statewide recount conducted since Secretary Carnahan took office in 2005. In 2006, a recount of the Republican State Auditor primary confirmed the victory of Sandra Thomas over Jack Jackson.

— 30 —

[emphasis added]

Chris Koster’s campaign issued the following press release:

FOR IMMEDIATE RELEASE

THURSDAY, SEPTEMBER 11, 2008

KOSTER CALLS FOR UNITY; LOOKS FORWARD TO FALL CAMPAIGN

Senator Chris Koster, the Democratic nominee for Attorney General, today issued the following statement regarding the certification of recount results in the Attorney General primary election:

“Throughout a hard-fought primary campaign, Representatives Donnelly and Harris championed issues critical to Missouri’s future, ranging from important consumer protections to the prosecution of cyber crimes. I look forward to working with both of them and their supporters to carry those issues and others through the November election and into the Attorney General’s Office. It is now time to move forward as one strong, united Democratic ticket led by Missouri’s next governor, Jay Nixon, to deliver the change our state’s working families so desperately need.”

###

Update: Margaret Donnelly’s campaign sent out the following e-mail:

The Secretary of State has certified the results of the recount and the outcome is the same. I have called Chris Koster and congratulated him. Although we all would have liked a different ending to this story, I am proud of the campaign that we ran and the doors that we opened.

The friendship and support you have shown me over the past year have been at times overwhelming. During these past weeks of the recount, I continued to be humbled and gratified by the sacrifices made by so many in order to help.

I will now focus my efforts on making sure that Democrats from Barack Obama down to legislative candidates are elected. This is a critical election and I hope you will join me in doing everything we can to insure that we put Democrats in those positions.

I will never forget all of your many kindnesses and your efforts on behalf of my campaign.

Best regards,

Margaret Donnelly

I don’t do caffeine unless I’m desperate, but Friday was a mind-numbingly boring day, and Diet Coke was called for as I observed a full day of the recount in the Attorney General’s race and the Fifth Senatorial, where Robin Wright-Jones had edged past Rodney Hubbard by only 101 votes.

First, I observed workers (always one Democrat and one Republican) take turns going through paper absentee ballots. One young woman used a rubber thimble on her middle finger to help her pick up the pieces of paper one by one. (Everybody else dipped two fingers in a pink paste called SORTKWIK to make their fingers sticky.) While her partner watched, she either put a ballot in the pile of those correctly marked or, occasionally, in the pile reserved for screwups who can’t fil in a bubble with a pen. That latter pile would be hand counted later.

Apparently I missed what minimal “excitement” was to be had when, on the previous two days, the hand count of paper ballots cast on primary day took place. Some discussion of voter intent occurred in the case of a few ballots. Perhaps four or five of them are still in dispute–a far cry from anything that would change the result in either race.

On the day I was there, the ballots that had been filled in correctly were taken to another room and fed through an optical scanner (by one Republican and one Democrat, of course). The ballots were then packed up in boxes of five hundred, sealed, and initialed by both people.

At other tables, pairs of workers were tallying the votes on what looked like long rolls of cash register tape from touchscreen machines. They sat across from each other with a long four inch wide board that had a couple of metal brackets screwed into it eight inches apart. They pulled the tape under those brackets. One set of votes exactly fit between the brackets, so one worker would pull the tape through to each new set of votes. His partner would read the votes in the two races being recounted, and the one who pulled the tape toward himself would record the votes on paper.

At the end of each tape, the workers compared the number of votes listed at the end of the machine’s paper trail with their own handwritten tally. What they hoped for, and usually got, was a match. On one occasion where the paper tally was off by one vote, they had to run all that tape under the brackets and recount. Fifteen minutes. Bummer. The young man whose count was off flushed at his mistake.

Of the half dozen observers in the room, only one was actually attempting to write down the totals each pair of counters came up with. That was a man who was there on behalf of Wright-Jones. He pointed out to me that 270 rolls of votes would be counted in the Fifth Senatorial race. Since only 101 votes separated Wright Jones from Hubbard, a one vote difference on less than half the rolls could change the outcome, so he was keeping a close eye out.

You know I don’t trust touch screen machines or op scans either, for that matter. But the people running the recount and those doing the counting acted as if their reputations were on the line. They answered any questions we had and were scrupulous about following the rules. Although one pair of counters miscounted the same roll three times in a row, everybody else remained admirably alert despite the monotonous task at hand.

So human error was not much of an issue. Machine malfunctions cost the workers far more of their time. An indecipherable ink mess caused by a paper jam could occur near the end of a roll, necessitating that the roll be reprinted and recounted. For example, at the end of one particularly huge roll, an ink mess threw the count off. The hand count showed Koster one vote short of the machine tally. Since a vote was obviously hidden in the ink mess, and although that vote was “almost surely” for Koster, they reprinted the roll to be recounted. Sigh.

One pair of counters ran into four straight rolls with printer jams. SIGH. I would put the number of rolls with ink messes that necessitated a reprint somewhere around 15-20 percent.

Another complication was that occasionally a printer had stopped and later started again without making an ink mess. While the printer was stopped, people voted and the machine counted those votes even though the printer failed to record them. The only way to know when that had occurred was when the hand count produced fewer votes than the machine said it had counted.

The recount was obviously being run on the up and up, but I mentioned my dislike of voting machines to Kyle Dubbert, who seemed to be in charge. His official title is “Policy Supervisor” and he’s a Republican. He said that if enough audits are conducted, then he would catch any widespread discrepancy between what the machines tallied and what the printers printed out. He  told me that the city conducted more audits than the state requires. The state requires an audit of one precinct for every 100 precincts. The city conducted five audits out of 203 precincts, which is about 2 1/2 percent of the precincts. Kyle said that if they’d had more workers, they’d have done more audits in the two weeks they had for that.

The other possible kind of fraud that concerns e-voting activists is that the machine would record a different vote than what was intended as well as print a different vote than intended. Kyle felt that the only protection against that possibility is for voters to examine their printed receipts, and he said the city urges them to do that. Of course, considering that many people are careless enough to vote in downticket races on whether they like the sound of a name, it doesn’t seem likely that most of them will double check voting receipts.

In any case, we’re stuck with the machines, and the recount is proceeding even as I type, probably. I see no indication that either race is going to come out any differently.

Mo. AG candidate files new suit contesting ballots

Associated Press – August 26, 2008 6:24 PM ET

JEFFERSON CITY, Mo. (AP) – Losing Democratic attorney general candidate Margaret Donnelly has been rebuffed on procedural grounds by the Missouri Supreme Court in her quest for a review of uncounted ballot.

But Donnelly has quickly re-filed her lawsuit in Clay County Circuit Court…

tiny URL

So, the lawsuit was filed in Clay County:

08CY-CV08262 – MARGARET DONNELLY ET AL V SANDY COLLOP ET AL

Judge Assigned: HARMAN, LARRY DALE Date Filed: 08/26/2008

Location: Clay Case Type: CC Other Miscellaneous Actions

Disposition: Not Disposed

Who got sued?:

It’s a long list.

08CY-CV08262 – MARGARET DONNELLY ET AL V SANDY COLLOP ET AL

DONNELLY , MARGARET , Plaintiff     represented by     RHYNE , RICHARD DALY , Attorney for Plaintiff

68 LAKE FOREST DRIVE

SAINT LOUIS, MO 63117

2345 GRAND BOULEVARD

KANSAS CITY, MO 64108

DOE , JOHN , Plaintiff     represented by     RHYNE , RICHARD DALY , Attorney for Plaintiff

2345 GRAND BOULEVARD

KANSAS CITY, MO 64108

COLLOP , SANDY , Defendant    

COUNTY CLERK OF ADAIR COUNTY

106 W WASHINGTON, 2ND FLOOR

KIRKSVILLE, MO 63501

HARVEY , SHELLEY , Defendant    

COUNTY CLERK OF AUDRAIN COUNTY

101 N JEFFERSON, ROOM 101

MEXICO, MO 65265

CONWAY , PAT , Defendant    

COUNTY CLERK OF BUCHANAN CO

411 JULES, ROOM 121

SAINT JOSEPH, MO 64501

REINHART , DAVE , Defendant    

CO-DIR OF BOARD OF ELECTION

COMMISSIONERS OF CLAY COUNTY

100 W MISSISSIPPI STREET

LIBERTY, MO 64068

EVANS , PATTY , Defendant    

CO-DIR OF BOARD OF ELECTION

COMMISSIONERS OF CLAY COUNTY

100 W MISSISSIPPI STREET

LIBERTY, MO 64068

KEMPF , DARRYL , Defendant    

COUNTY CLERK OF COOPER COUNTY

200 MAIN STREET, ROOM 23

BOONVILLE, MO 65233

DOOR , DEBBIE , Defendant    

COUNTY CLERK OF FRANKLIN CO

400 E LOCUST, STE 201

UNION, MO 63084

NICHOLS , ROBERT C JR , Defendant    

CO-DIR OF THE BOARD F ELECTION

COMMISSIONERS OF JACKSON CO

215 N LIBERTY ST

INDEPENDENCE, MO 64051

DAVIS , CHARLENE , Defendant    

CO-DIR F THE BOARD OF ELECTION

COMMISSIONERS OF JACKSON CO

215 N LIBERTY STREET

INDEPENDENCE, MO 64051

WAGNER , WES , Defendant    

COUNTY CLERK OF JEFFERSON CO

729 MAPLE ST, ROOM 217

HILLSBORO, MO 63050

KIEFFER , SHAWN , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSIONERS OF KANSAS CITY

1828 WALNUT, SUITE 300

KANSAS CITY, MO 64108

MCTHOMAS , SHELLEY , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSIONERS OF KANSAS CITY

1828 WALNUT, SUITE 300

KANSAS CITY, MO 64108

CHRISTOPHER , KELLY , Defendant    

COUNTY CLERK OF LIVINGSTON CO

700 WEBSTER STREET, SUITE 10

CHILLICOTHE, MO 64601

GROEPPER , ANITA E , Defendant    

COUNTY CLERK OF MONITEAU CO

200 E MAIN STREET, ROOM 106

CALIFORNIA, MO 65018

ERICKSON , MARY BETH , Defendant    

CO-DIR OF BOARD OF ELECTION

COMMISSIONERS OF PLATTE CO

2600 NW PRAIRIE VIEW ROAD

PLATTE CITY, MO 64079

FLANIGAN , WENDY M , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSIONERS OF PLATTE CO

2600 NW PRAIRIE VIEW ROAD

PLATTE CITY, MO 64079

CHRISMER , RICH , Defendant    

ST CHARLES CO ELECTION AUTHORI

397 TURNER BLVD

SAINT PETERS, MO 63376

JONES , MARY WHEELER , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSIONERS OF ST LOUIS CITY

300 N TUCKER

SAINT LOUIS, MO 63101

LINENDECKER , SCOTT , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSIONERS OF ST LOUIS CITY

300 N TUCKER

SAINT LOUIS, MO 63101

DONAHUE , JOE , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSION OF ST LOUIS COUNTY

12 SUNNEN DRIVE, STE 126

SAINT LOUIS, MO 63143

GOEKE , JOSEPH , Defendant    

CO-DIRECT OF BOARD OF ELECTION

COMMISSION OF ST LOUIS COUNTY

12 SUNNEN DRIVE, STE 126

SAINT LOUIS, MO 63143

REGISTER , MARVIN , Defendant    

COUNTY CLERK – COLE COUNTY

311 E HIGH STREET, ROOM 201

JEFFERSON CITY, MO 65101

LUCK , ELAINE , Defendant    

COUNTY CLERK – LINCOLN COUNTY

201 MAIN STREET

TROY, MO 63379

WILLIAMS , BARBARA , Defendant    

COUNTY CLERK – MCDONALD COUNTY

602 MAIN STREET

PINEVILLE, MO 64856

BAUM , KAY , Defendant    

COUNTY CLERK – NEWTON COUNTY

101 S WOOD STREET

NEOSHO, MO 64850

BRYANT , KENNETH R , Defendant    

COUNTY CLERK – SALINE COUNTY

101 E ARROW, ROOM 202

MARSHALL, MO 65340

TAYLOR , SUSETTE , Defendant    

COUNTY CLERK – ATCHISON COUNTY

400 S WASHINGTON

ROCK PORT, MO 64482

SMITH , CONNIE , Defendant    

COUNTY CLERK – CRAWFORD COUNTY

203 MAIN STREET

STEELVILLE, MO 65565

STEWARD , LINDA , Defendant    

COUNTY CLERK – DAVIESS COUNTY

102 N MAIN STREET

GALLATIN, MO 64640

BERRY , MARY , Defendant    

COUNTY CLERK – DEKALB COUNTY

109 N MAIN STREET

MAYSVILLE, MO 64469

REIDLINGER , CAROL , Defendant    

COUNTY CLERK – GENTRY COUNTY

200 W CLAY

ALBANY, MO 64402

BASIER , KAY , Defendant    

COUNTY CLERK-STE GENEVIEBE CTY

55 S THIRD STREET

SAINTE GENEVIEVE, MO 63670

CARNAHAN , ROBIN , Defendant    

SECRETARY OF STATE

STATE OF MISSOURI

600 WEST MAIN STREET

JEFFERSON CITY, MO 65101

KOSTER , CHRIS , Defendant    

1100 SOUTH MAIN STREET

HARRISONVILLE, MO 64701

And this is what’s happened so far:

08CY-CV08262 – MARGARET DONNELLY ET AL V SANDY COLLOP ET AL

08/26/2008

Docket Entry:   Pet Filed in Circuit Ct

Docket Entry: Certificate of Service

Filing Party: RHYNE , RICHARD DALY

Docket Entry: Motion Filed

Text: MOTION TO SHORTEN TIME TO RESPOND TO FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO RESPONDENTS. KST

Filing Party: RHYNE , RICHARD DALY

Docket Entry: Summons Issued-Circuit

Text: Document ID: 08-SMCC-1941, for KOSTER, CHRIS;SUMMONS ISSUED AND DELIVERED BACK TO ATTORNEY FOR SERVICE TOGETHER WITH FIRST REQUEST FOR PRODUCTION OF DOCUMENTS.bp

Docket Entry: Order

Text: Order Setting Preliminary Hearing for Election Contest for 9-02-2008 @ 1:00 pm by agreement. LDH

Filing Party: HARMAN , LARRY DALE

Docket Entry: Order

Text: Contestant’s Motion to Shorten Time to Respond to the First Request for Production of Documents to Respondents is granted. Respondents shall respond not later than August 29, 2008. LDH

Filing Party: HARMAN , LARRY DALE

Docket Entry:   Hearing Scheduled

Associated Events: 09/02/2008 , 13:00:00 – Hearing

Docket Entry: Summons Issued-Reg/Cert Mail

Text: Document ID: 08-SMCM-87, for COLLOP, SANDY; Document ID: 08-SMCM-88, for HARVEY, SHELLEY; Document ID: 08-SMCM-89, for CONWAY, PAT; Document ID: 08-SMCM-90, for REINHART, DAVE; Document ID: 08-SMCM-91, for EVANS, PATTY; Document ID: 08-SMCM-92, for KEMPF, DARRYL; Document ID: 08-SMCM-93, for DOOR, DEBBIE; Document ID: 08-SMCM-94, for NICHOLS, ROBERT C; Document ID: 08-SMCM-95, for DAVIS, CHARLE
NE; Document ID: 08-SMCM-96, for MCTHOMAS, SHELLEY; Document ID: 08-SMCM-97, for KIEFFER, SHAWN; Document ID: 08-SMCM-98, for WAGNER, WES; Document ID: 08-SMCM-99, for CHRISTOPHER, KELLY; Document ID: 08-SMCM-100, for GROEPPER, ANITA E; Document ID: 08-SMCM-101, for ERICKSON, MARY BETH; Document ID: 08-SMCM-102, for FLANIGAN, WENDY M; Document ID: 08-SMCM-103, for CHRISMER, RICH; Document ID: 08-SMCM-104, for JONES, MARY WHEELER; Document ID: 08-SMCM-105, for LINENDECKER, SCOTT; Document ID: 08-SMCM-106, for DONAHUE, JOE; Document ID: 08-SMCM-107, for GOEKE, JOSEPH; Document ID: 08-SMCM-108, for REGISTER, MARVIN; Document ID: 08-SMCM-109, for LUCK, ELAINE; Document ID: 08-SMCM-110, for WILLIAMS, BARBARA; Document ID: 08-SMCM-111, for BAUM, KAY; Document ID: 08-SMCM-112, for BRYANT, KENNETH R; Document ID: 08-SMCM-113, for TAYLOR, SUSETTE; Document ID: 08-SMCM-114, for SMITH, CONNIE; Document ID: 08-SMCM-115, for STEWARD, LINDA; Document ID: 08-SMCM-116, for BERRY, MARY; Document ID: 08-SMCM-117, for REIDLINGER, CAROL; Document ID: 08-SMCM-118, for BASIER, KAY; Document ID: 08-SMCM-119, for CARNAHAN, ROBIN; SUMMONS ISSUED AND MAILED BY CERTIFIED MAILED TOGETHER WITH FIRST REQUEST FOR PRODUCTION DOCUMENTS.bp

We’ll know more on Tuesday, September 2nd after the hearing. This lawsuit is separate from the actual recount under the aegis of the Secretary of State.  

There’s going to be a recount.

Our previous coverage, eleven days ago:

Margaret Donnelly to ask for recount in Attorney General primary

Today I received the following via e-mail from Margaret Donnelly’s legal representatives:

Margaret Donnelly Officially Files Request for Recount in Attorney General Primary    

Certification of Missouri Democratic Primary Results Means that Campaign Can Proceed with Formal Request of Recount

After receiving word that the Democratic primary results for the Missouri Attorney General race were certified late last week, Representative Margaret Donnelly (Dem.) has officially filed her formal request for a recount of the Democratic ballots.  As Donnelly was second to Senator Chris Koster by a 0.2% margin, with a 780-vote differential out of more than 346,000 votes cast, this result is well within the margin necessary to qualify for a recount.

In accordance with the state statutes that provide guidance for this procedure, the Donnelly campaign has filed a petition with the state’s Supreme Court to consider all votes, including rejected absentee and provisional ballots, cast in the primary election.  With this result representing the closest statewide race in Missouri history, each vote becomes all the more significant in an outcome where a mere one-vote swing in as few as 25% of the precincts in the state would result in a Donnelly victory.

Acting on the campaign’s behalf, Lathrop & Gage L.C. filed the official request for recount pursuant to Section 115.601, RSMo late on Friday, and on Monday afternoon filed its petition with the Missouri Supreme Court to consider all votes in the process, including rejected absentee and provisional ballots.  Member Richard Rhyne of the firm’s Kansas City office has led the legal team in this matter – during the campaign he served as chair of the Donnelly for Attorney General Greater Kansas City-Area Steering Committee, and has handled election recount matters in his legal practice.

“We are following the procedure that the state has established, so at this point it is a legal proceeding,” Ms. Donnelly said.  “We want to be sure that all voices are heard in this election, which is the common goal that we and the party both share….”

[emphasis added]

As of this writing the petition mentioned in the e-mail and reportedly filed with the Missouri Supreme Court (separate from the recount request filed with the Missouri Secretary of State) doesn’t show up in the case file system.

One of the elements in the recount, for optical scan and paper ballots, in reference to “over votes” and “under votes” is the “Uniform Counting Standards” in the Code of State Regulations (Chapter 15) (pdf). This applies to the actual recount and is separate from the issue(s) reportedly raised in the Missouri Supreme Court petition.

The Missouri Revised Statutes address the start (and other parts) of the recount process:

Missouri Revised Statutes

Chapter 115

Election Authorities and Conduct of Elections

Section 115.601

August 28, 2007

Recount authorized when less than one percent difference in vote –recount, defined.

115.601. 1. Any contestant in a primary or other election contest who was defeated by less than one percent of the votes cast for the office and any contestant who received the second highest number of votes cast for that office if two or more are to be elected and who was defeated by less than one percent of the votes cast, or any person whose position on a question was defeated by less than one percent of the votes cast on the question, shall have the right to a recount of the votes cast for the office or on the question.

2. In cases where the candidate filed or the ballot question was originally filed with an election authority as defined in section 115.015, such recount shall be requested in accordance with the provisions of section 115.531 or 115.577 and conducted under the direction of the court or the commissioner representing the court trying the contest according to the provisions of this subchapter.

3. In cases where the candidate filed or the ballot question was originally filed with the secretary of state, the defeated candidate or the person whose position on a question was defeated by less than one percent of the votes cast on the question shall be allowed a recount pursuant to this section by filing with the secretary of state a request for a recount stating that the person or the person’s position on a question was defeated by less than one percent of the votes cast. Such request shall be filed not later than seven days after certification of the election. The secretary of state shall notify all concerned parties of the filing of the request for a recount. The secretary of state shall authorize the election authorities to conduct a recount pursuant to this section if the requesting party or his position on a question was defeated by less than one percent of the votes cast. The secretary of state shall conduct and certify the results of the recount as the official results in the election within twenty days of receipt of the aforementioned notice of recount.

4. Whenever a recount is requested pursuant to subsection 3 of this section, the secretary of state shall determine the number of persons necessary to assist with the recount and shall appoint such persons equally from lists submitted by the contestant and the opponent who received more votes or a person whose position on a question received more votes than the contestant’s position on that question. Each person appointed pursuant to this section shall be a disinterested person and a registered voter of the area in which the contested election was held. Each person so appointed shall take the oath prescribed for and receive the same pay as an election judge in the jurisdiction where the person is registered. After being sworn not to disclose any facts uncovered by the recount, except those which are contained in the report, the contestant and the opponent who received more votes or a person whose position on a question received more votes than the contestant’s position on that question shall be permitted to be present in person or represented by an attorney at the recount and to observe the recount. Each recount shall be completed under the supervision of the secretary of state with the assistance of the election authorities involved, and the persons appointed to assist with the recount shall perform such duties as the secretary of state directs. Upon completion of any duties prescribed by the secretary of state the persons appointed to assist with the recount shall make a written and signed report of their findings. The findings of the persons appointed to assist with the recount shall be prima facie evidence of the facts stated therein, but any person present at the examination of the votes may be a witness to contradict the findings. No one other than the secretary of state, the election authorities involved, the contestant and the other witnesses described in this subsection, their attorneys, and those specifically appointed by the secretary of state to assist with the recount shall be present during any recount conducted pursuant to this section.

5. For purposes of this section, “recount” means one additional counting of all votes counted for the office or on the question with respect to which the recount is requested.

[emphasis added]

The actually recount part of this will have to proceed quite quickly.

We received the following press release from Margaret Donnelly’s campaign:

For Immediate Release

Margaret Donnelly Asks Secretary of State’s Office for Recount of Attorney General Results

Representative Margaret Donnelly, 2008 candidate for Attorney General in the state of Missouri, today announced her intention to file a formal request for a recount of the Democratic ballots cast in the state’s primary election August 5.  Donnelly was second to Chris Koster by a 0.2% margin, with a 794-vote differential out of more than 346,000 votes cast.  (Results are still unofficial until they are certified by the Secretary of State.)  With  the smallest margin in a statewide race in Missouri history, a one-vote swing in as few as 25% of the precincts in the state would result in a Donnelly victory.

“Voting is the heart of the democratic process, and we are pursuing a recount as that is the fairest way possible to make sure the people’s voice through the election is most accurately heard,” Ms. Donnelly said.  “I have received encouragement to pursue the recount from an overwhelming number of Democratic primary voters. At this stage the recount becomes a legal procedure.”

Lathrop & Gage L.C. has been hired to represent the Donnelly campaign in this matter.  Member Richard Rhyne of the firm’s Kansas City office has served as chair of the Donnelly for Attorney General Greater Kansas City-Area Steering Committee, and has handled election recount matters in his legal practice.

“Lathrop & Gage has handled election recounts like this many times before,” Ms. Donnelly said.  Counted among those matters would be the Dolan v. Powers recount of the Johnson County, Missouri Auditor’s race, a precedent-setting case that set the standard for election recounts since Missouri enacted the Uniform Counting Standards.  “As candidates are able to request a recount whenever their losing margin is less than 1 percentage point, and given the slim margin separating the candidates at the top, we feel it is in the best interest of the state and of all those who voted to make sure there is no error in tabulating the final results and that the votes of all citizens are counted for this important race.”

[emphasis added]

The release from Donnelly’s campaign mentions the Johnson County recount from the 2006 election. Our previous coverage of that case:

Coughing up a giant hairball: the Western Court of Appeals rules on the Johnson County recount case

The Johnson County recount case is finally over

The last statewide primary recount occurred in 2006, in the republican State Auditor primary. The results were not overturned.

Update:

A press release from Chris Koster’s campaign:

FOR IMMEDIATE RELEASE

FRIDAY, AUGUST 15, 2008

KOSTER WELCOMES RECOUNT; CONFIDENT IN VICTORY

Senator Chris Koster today issued the following statement regarding the recount in the Attorney General primary election:

“Representative Donnelly and her supporters ran a tremendous race. It is within her right to verify the election’s results. We remain confident that our campaign is on the path to victory in November, and I will continue to travel to every corner of Missouri to talk about my law enforcement experience and the issues that matter most to working families.”

###

[emphasis added]