Court rejects Barger’s request for hand recount in Lincoln legislative race


The judge finds the recount challenge in Legislative District 26 unfounded

Lancaster County District Court

Lancaster County District Court

Courtesy: Lancaster County District Court

LINCOLN — A Lancaster County District Court judge on Thursday dismissed a legal challenge by Lincoln legislative nominee Russ Barger, who sought to force the state to hand-count his loss of 223 votes.

Judge Kevin McManaman ruled against Barger’s lawsuit on technical and substantive grounds. The judge said his court had no jurisdiction to consider the lawsuit because Barger’s original file did not have a notarized signature.

Jennifer Huxoll of the Nebraska Attorney’s Office argued on behalf of the state that McManaman could not consider Barger’s filing because of the lack of electronic notarization.

The judge agreed, writing that “Nebraska law is clear that the filing of a motion and affidavit for a verified petition is a court requirement” before dealing with a requested Mandamus letter.

The judge also sided with the Office of Secretary of State Bob Evnen and the Office of Attorney General Doug Peterson that the state’s law left the decision on the recount method to the Secretary.

McManaman in his ruling found “no merit” for Barger’s attorney David Begley’s argument that separate sections of state law and historical practice indicate a preference for hand counts.

“The law just doesn’t say what the relator says, but it does say that the secretary of state should oversee recounts,” the judge said.

Evennen said in a statement on Thursday: “We are doing our best to comply with the rule of law. We are pleased that the court has concluded that we did so in this case.”

During a hearing Tuesday, the judge had both attorneys discuss the broader issue of the lawsuit: whether state law requires Evnen to conduct the type of recount Barger is requesting.

Under state law, an automatic recount is triggered when the votes separating two candidates are less than 1%. State law also requires that such a recount be conducted in the same manner as the election.

State laws are not as specific about recounts for candidates losing by more than 1%. Barger, a Republican, lost his race in Lincoln’s Legislative District 26 to George Dungan by 223 votes, outside the 1% requirement for an automatic recount.

Evnen’s office denied Barger’s request for a handwritten recount in a letter. The letter argued that state law requires election officials to conduct recounts like elections: with paper ballots counted by machines.

Barger said earlier this week that he didn’t think it would move forward if the judge dropped his lawsuit on technical grounds. On Thursday, he said he needed some time to digest the verdict.

“We’re reading the decision right now,” Barger said. “We may have to make some decisions about next steps.”

Huxoll argued from the attorney general’s office that any recount method not specified in the state electoral law falls within the discretion of the secretary of state as the state election administrator.

Begley had argued that “if the legislature wanted the same process at a recount as during the election, they would have used the same language.”

Barger would have had to pay for any recount outside the automatic margin unless the outcome of the election changed, which was unlikely. The Secretary of State’s office estimated that a hand recount could cost $11,000. A machine recount would cost about $6,000.

Barger had said his campaign was trying to raise $25,000 to cover recount costs and any legal fees. He said this week he probably wouldn’t push for the recount if it had to be handled mechanically.

Some of the Republican Party’s grassroots have questioned the use of voting machines since former President Donald Trump lost his 2020 race to President Joe Biden. However, the loss has been tested and verified in swing states.

The Nebraska Republican Party had urged supporters to attend Tuesday’s hearing and posted on Facebook that the party supports the push for hand counts. About 25 people attended the hearing. Evennen is also a Republican.

Election experts and independent auditors have found that machine counts tend to be more accurate than manual counts. But Begley’s brief pointed to an Iowa legislative race in which a six-vote lead for a Democrat after a hand count turned into a Republican victory by 11 votes.

Recounts of state legislative races rarely move votes by more than 10 votes unless districts are large, election observers said.

Dungan, Barger’s opponent, said Thursday he agreed with the court’s ruling: “I’m looking forward to getting this all behind me and getting to work.”

Nebraska Examiner is part of States Newsroom, a network of news agencies supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom with any questions: [email protected] Follow Nebraska Examiner on Facebook and Twitter.

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