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Judge dismisses Arnold appeal of recount results

Alexis Pickering won her election to the Ada County Highway District Commission a third time.

On Monday, Idaho Fourth District Judge Ronald Wilper dismissed ACHD Commissioner Rebecca Arnold’s appeal of the results of a recount in her tight race against Pickering. She contended Ada County Clerk Phil McGrane and Ada County Prosecutor Jan Bennetts misapplied the law in how they conducted the recount and requested the ballots be counted by hand and some ‘newly discovered’ absentee ballots be thrown out.

[Pickering takes on 16-year incumbent Arnold for ACHD]

Pickering first bested Arnold by two votes on November 3, which was within the margin to allow her a free recount. Her lead over Arnold grew to four votes after the recount, which concluded December 5.

Appeal dismissed

Wilper was not swayed by Arnold’s complaint. He said her request for a hand count would not result in higher accuracy and could result in human error.

“Inherent in Ms. Arnold’s appeal is the contention that a hand-count of all 31,468 ballots, or at least the hand-count of all the ballots from the four precincts used for the test would result in a more accurate count than vote tabulating machines,” he said. “While this argument has some appeal, the Court is not convinced that hand-counts are more accurate than machine counts. This is because the element of human error is introduced in any hand-count, especially a hand-count of thousands of ballots.”

When reached by text Monday morning about the decision, Arnold said she had not read the complaint yet and did not immediately comment.It is unknown if she plans to further appeal the results.

Pickering’s campaign manager Melanie Folwell was happy with the decision Monday. 

“Recounts are historically more accurate than Election Day counts because of the extra care required,” she said. “We are pleased that the court recognized this, and, as we argued, found no legal error.”

All three arguments turned down

As BoiseDev first reported Friday, Arnold made three main arguments in the appeal, all of which were deemed invalid by Wilper.

In her complaint, she contended the logic and accuracy test prior to the recount showed the vote-counting machines were too unreliable to be used in a race with such narrow margins. In his decision, Wilper said Idaho statute is clear that if a margin of error in the logic and accuracy test is less than 1% or two votes, whichever is greater, the race must be counted by machine and not by hand. The 1% threshold in this race was 17 votes, far greater than the difference of two votes between the machine and the hand count in the test.

Arnold also took issue with the selection of the ballots counted in the logic and accuracy. Because absentee and early votes were not separated out by precinct and were mixed together, Arnold was only allowed to pick ballots to be tested cast on election day. She said this means the test did not meet the state’s requirement of a “random” selection.

In his decision, Wilper said Idaho statute does not define what a “random” selection of ballots for the test is. He said the law only requires that 5% of the ballots be counted in the test and the four precincts Arnold selected to be counted were sufficiently large enough to be considered random, even though they did not include absentee or early votes.

31 additional ballots?

Arnold also objects to the inclusion of 31 additional absentee ballots counted during the recount. In her complaint, she requested 24 of them from one particular precinct be thrown out and McGrane should hand count all ballots to determine “voter intent” and “elector’s choice.”

Wilper said McGrane and other elected officials are not required by law to count ballots by “voter intent” or “elector’s choice” under the statute and the section of code Arnold used to make her argument only applies to initial ballot counts and not recounts. He also found Bennetts, a Republican who oversaw the recount, was well within her authority to allow the 31 ballots to be counted.

During Arnold’s hearing Friday, McGrane said he believed the ballots were not initially counted due to a human error in scanning them into the system. By studying the reports tracking each absentee ballot and comparing it to voting records, McGrane said he is able to tell these ballots were not counted originally, instead of counted twice during the recount.

“Every indication I have is instead of counting a batch twice, a portion of one batch was not counted,” he said during the hearing. “We have already been able to identify which batch this was from.”

Arnold also alleged McGrane unlawfully allowed voters whose absentee ballots were rejected due to signatures not matching or a missing signature to come to the election’s office and “cure” the ballot prior to Election Day so it could be counted. Both Ada and Canyon counties did this in 2020 and it is allowed by the Idaho Secretary of State, even though there is nothing in statute explicitly approving the procedure.

Wilper said her questions about the legality of “curing” ballots was not relevant to the appeal of the recount.

Margaret Carmel - BoiseDev senior reporter
Margaret Carmel is a BoiseDev reporter focused on the City of Boise, housing, homelessness and growth. Contact her at [email protected] or by phone at (757)705-8066.

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