The losing candidate in the Musselshell County sheriff’s race has blamed the elections administrator for his loss and secured a court-ordered recount with rules that could reverse it.
An attorney for the county is agreeing to the judge’s rules and has said taxpayers should foot the bill for the recount.
But an attorney for the winning candidate is crying foul, saying the recount rules are illegal and the county’s attorney is not defending the elections administrator against the “baseless allegations” that set the stage for the recount.
Ronnie Burns lost in November to current Undersheriff Shawn Lesnik by 1.67 percent of the vote, or by 41 votes. The loss put Burns outside the bounds for a recount, since state law requires a margin of 0.5 percent or less.
Burns’ only recourse was to seek a court order saying some votes might have been improperly counted — which he sought Nov. 26 and got Dec. 6.
Judge Katharine Bidegaray, of the Seventh Judicial District in Eastern Montana, granted the recount after Burns made allegations about wrongdoing on the part of Musselshell County Elections Administrator Cheryl Tomassi, which the county has not yet contested.
On Friday morning, shortly before the recount was set to begin, Bidegaray issued an order granting Burns’ proposed rules for the recount, which included that ballots for Burns could be counted even without the adjacent oval darkened.
That requirement is laid out in state law, and Burns’ own campaign literature acknowledges it, telling supporters to darken the oval after writing in Burns’ name, according to a portion of the literature Lesnik included in a Monday court brief. Lesnik is represented by Billings attorney Lisa Speare.
But while each of the eight rules is illegal, Speare says, the county has never objected to them. It’s also declined to respond to the allegations against Tomassi. Wally Congdon of Lake County was appointed by Musselshell County Attorney Kevin Peterson to defend the county in the lawsuit.
The judge said the recount would take place Friday at the earliest. Retiring Sheriff Michael Thomas has agreed to hold the position until the recount dispute is settled. A hearing on the dispute is set for 2 p.m. Thursday.
Burns said Tomassi limited him to 14 variations of “Ronnie Burns” on his write-in candidate’s intent form. Tomassi has denied that. Write-in candidates are allowed to list variations of their name, such as “Ronald Burns” or “Ron Burns” in advance of the election that voters might use and have the vote still count.
But in November, some voters cast ballots for “Robbie Burns” or other variations that did not get advance approval. Although state law prohibits it, Burns pushed for those votes to be counted, and the judge granted the unopposed request.
Tomassi told The Billings Gazette she did not limit Burns to 14 name variations.
“I really don’t know how he came up with that,” she said.
Tomassi said it was Burns who mentioned to her he believed he was limited to 14 variations of his name, back in June, when he filed as a write-in.
“Well I was always under the understanding that you could use as many as you want,” Tomassi recalled saying. “And that was our whole conversation that day about 14 names.”
Burns' attorney, Chris Gallus, represented another unsuccessful write-in sheriff's candidate in 2014 who had listed 14 name variations on his declaration of intent form for his Powell County race.
Burns has seemingly benefited from a county mistake on the name variations. Among the 14 variations Tomassi approved were four alternate spellings of Burns’ last name that were not preceded by a first name or initial. State law requires a first name or initial.
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Those ballots cast for “Barns” or “Barnes” were counted nonetheless, Tomassi said.
Burns also alleged Tomassi told him he could not distribute stickers with his name on them and a blackened oval to supporters so that they could paste them on the write-in line. Tomassi told The Gazette she merely advised him not to, because the stickers “gum up the machines.” When Burns asserted it was legal to use the stickers, Tomassi said she agreed.
Finally, Burns has said Tomassi on numerous occasions prohibited poll workers from helping voters when they requested assistance. Burns’ lawsuit includes an affidavit from an election judge who says she saw a man ask precinct judges for help spelling Burns’ name and that the precinct judges said they could not help him, but to spell it the way it sounded.
Tomassi told The Gazette she wasn’t present at the polls on election night but that she had earlier instructed poll workers to make the list of Burns' name variations available to anyone who requested it.
Commissioner bows out
Tomassi said she feels frustrated that Congdon, the attorney appointed to represent Musselshell County, has not defended her against the allegations — and she’s not the only one.
“I feel there is an appearance of unfairness about this process,” said County Commissioner Nicole Borner. “I don’t feel the county has been very properly defended. Cheryl Tomassi was not defended on any of the accusations that have been put forth against her.”
Borner sought and received the judge’s permission to remove herself from the recount after the judge signed the order laying out the recount rules, including the one stipulating write-in votes without a darkened oval would still be counted.
“And that’s the one that made me say, ‘I just don’t want to be a part of this process,’” Borner said. “If they’re asking us to make that decision here, it opens the county up to a lawsuit on the other end.”
Retiring Justice of the Peace Donna Marsh took Borner’s place on the canvass board.
Speaking Friday, Congdon said the county agreed to hold the recount in part because there was a question of whether certain ballots were defective due to ovals that were printed too lightly.
Congdon also noted that Tomassi approved four name variations that did not include Burns’ first name or initial.
“So the irony is, how do you say — how do you say this is one of the choices we are going to count …when the Secretary of State’s guide says not to?” Congdon said.
In a brief submitted this week, Congdon said the county was aware of both Burns’ and Lesnik’s allegations, but that it would wait for the court’s order directing the county how to proceed.
“Respondents therefore have no arguments to make at this time in respect to the factual and legal issues raised by the other parties,” Congdon wrote, “and will administer the procedures to complete this election as determined by the Court, upon our receiving the same.”
Elections officials concerned
Yellowstone County Elections Administrator Bret Rutherford said he had been keeping tabs on the recount dispute in the county to the north and, along with other elections officials he'd spoken with in the state, was concerned.
“I have never seen a case like this go through the courts without any — that I’m aware of — any probable cause,” Rutherford said. “I have yet to see any of that. And if there wasn’t any and the court steps in and says there’s a recount, you could start to see these kinds of cases after every race, no matter whether they’re founded or unfounded, at all levels of election in Montana. So there needs to be a definitive process through statute and administrative rules, and I thought that’s what we had.”
Rutherford also noted that Burns’ recount petition came after the deadline laid out in state law, which requires a petitioner to seek a court-ordered recount within five days of the county canvass date, which took place on Nov. 19.