Defeated legislature candidate asks judge for ballot recount

Dec. 13, 2022, 6 p.m. ·

Recount Lawsuit. Graphic Featuring photo of court hearing
Recount Lawsuit. (Graphic: Nebraska Public Media News)

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The declared loser in an election for Nebraska state legislature argued in court Tuesday that a machine count of ballots cast is unreliable. He is demanding state election officials stage a recount by hand; maintaining state law provides him that opportunity.

Attorneys for the State of Nebraska dispute state law specifies a hand recount as an option in contested elections. Hearing the case, Lancaster District Court Judge Kevin McManaman raised questions that reflected his skepticism about the unusual request.

Russ Barger, candidate for Nebraska State Legislature
Russ Barger smiles following a court hearing in December, 2022. (Photo: Bill Kelly, Nebraska Public Media News)

Russ Barger of Lincoln lost the general election in Legislative District 26 to George Dungan by 224 votes, or a difference of more than 1% of the ballots cast. State law only allows for an automatic recount if the margin falls under the 1% threshold.

Barger's race does not meet that threshold, but he wants to pay for the recount with his own money.

Barger's attorney, David Begley, told the judge, "the human eyeball can catch something the machines might miss."

In an attempt to force a recount, Barger filed a "writ of mandamus," which asks a judge to force a segment of the government to perform its duties properly. In this case, Barger argued, Nebraska Secretary of State Bob Evnen, a Republican, failed to proceed with a recount as requested. Evnen's office oversees elections at the state level.

Assistant Attorney General Jennifer A. Huxoll, arguing on behalf of the secretary of state, said state law does not allow Barger to demand a hand count of the ballots.

Assistant Nebraska Attorney General Jennifer A. Huxoll
Assistant Nebraska Attorney General Jennifer A. Huxoll argues in court. (Photo: Bill Kelly, Nebraska Public Media News)

As noted in court briefs filed on behalf of Evnen, the state statute specifies "the procedures for the recounting of ballots shall be the same as those used for the counting of ballots on Election Day." Since the Lancaster County election commissioner used a machine count, the attorney general said that is all Barger would be entitled to request.

During the court hearing, Assistant Attorney General Jennifer A Huxoll noted the method used to demand a recount is a very unusual step that amounts to "the remedy of last resort when all other methods have failed." Barger filed his writ of mandamus as his first step in a challenge.

While candidates for the Legislature are officially non-partisan, Barger ran with the support and endorsement of the state's Republican Party.

In briefs filed in his lawsuit, Barger conceded the results don't qualify for an automatic recount. However, he maintained the law allows a candidate to request a recount and can demand the ballots be manually tallied, even those cast by electronic voting machines.

Barger put up a $6,000 bond to reimburse the state for a manual recount. The secretary of state estimates a hand recount could cost twice that amount.

Barger declined to talk about why he feels a recount is necessary and would not address whether he trusts the county and state election officials.

"I have no allegation to that effect," he told reporters after the hearing. "We just want the votes counted again."

When asked directly by a reporter whether there "is evidence that something went wrong on election day or during the collection of the ballots earlier," Barger said, "I'm unable to answer that at this time" because "I have been told not to."

He declined to say who asked him not to talk about the issue.

The decision of whether or not to require a recount could hinge on a legal technicality. The attorney general's office argued at the start of the hearing that the original court filing was not signed and filed properly, meaning the judge would be required to reject the paperwork without determining the arguments' merits.

Public seating in the courtroom was filled to capacity. Most of those attending appeared to be in support of Barger's push for a recount. Several expressed general skepticism about the integrity of American elections.

Spectators attend court hearing in Barger v Evnen
Spectators attend a court hearing for Barger v. Evnen in Lancaster District Court. (Photo: BIll Kelly/Nebraska Public Media News)