Calling the lawsuit “specious, ill-founded, and wholly without merit,” Pulaski County Circuit Judge Tim Fox on Monday dismissed Bryan Norris’ legal challenge to the Saline County election results in the Republican secretary of state primary runoff election.

“Plaintiff Norris alleged there were eight areas where the defendants Saline County Board of Election Commissioners committed procedural violations of the statutorily enumerated election procedures,” Fox wrote. “Plaintiff Norris failed to prove the allegations in any of the eight areas.”

Background

Norris — who narrowly lost a primary runoff election for the Republican nomination for secretary of state in March to Sen. Kim Hammer (R-Benton) — filed a lawsuit in Pulaski County Circuit Court on April 9, challenging the election results in Saline County. Fox dismissed the lawsuit just hours later, saying the lawsuit lacked a required affidavit from Norris and included improper entities as parties.

Norris re-filed his election challenge on April 27. Because it had previously been in Fox’s court, and because Fox specifically ordered that any refiled version of the case be in his court, that’s where Norris’ case was again assigned.

The lawsuit named as defendants the Saline County Board of Election Commissioners; commissioners Robert Scott, Claudette Zuber and Tamme Adams in their official capacities; and Hammer. Norris alleged that, during the recount that he requested (and lost) in Saline County, his “designated representative was not permitted to monitor the recount as required by Arkansas law.” Nevertheless, he said the parts of the recount that could be observed “exposed serious and fatal defects in the election process,” which included allegations that:

• Ballot boxes were not sealed with a secured, numbered seal as required by law;
• Norris’ designated representative was not given priority viewing of the recount as required by law; and
• One election worker failed to take the required oath before handling and recounting ballots

Norris’ complaint concluded that the Saline County election results “cannot be trusted to be accurate or the ballots verifiable as the ballots actually cast by voters in the election” and asked the court to declare those results null and void. Importantly, Norris, who lost the statewide runoff election by 913 votes, sought to have only the Saline County results — where Hammer won by more than 2,000 votes — thrown out. If his lawsuit had been successful, that change would have resulted in Norris winning the runoff.

Trial

Because time is of the essence in election contests, a trial on Norris’ complaint was held on May 29.  Norris called recently retired Saline County Election Coordinator Allison Cain as his first witness.

Cain, who retired after the primary elections following 21 years in the position, testified that Saline County followed the same procedures for the primary elections and runoff elections that they had followed for years. She disputed Norris’ claims that the county was required to use a different kind of “numbered seal” on the boxes of ballots than the numbered, signed tape they actually used. She also denied Norris’ contention that some people who handled ballots during the recount had not been properly given the required oath before doing so.

Cain’s testimony was also no help to Norris on his claim that his personal representative was not allowed to be within three feet of the people recounting the ballots. Cain said Norris’ representative was given the option of priority seating closest to the front table of vote counters or standing in another specially set-aside spot in the room, either of which was ample access under the law. (Notably, and contrary to Norris’ claim, the law actually prohibits a personal representative from being closer than three feet from any person counting votes.)

Norris’ second and final witness was defendant Robert Scott, chair of the Saline County Board of Election Commissioners. Scott reiterated the options given to Norris’ representative at the recount and disputed that the seals on the ballot boxes were inadequate under state law. Neither witness nor any party disputed that the recount total was identical to the original vote count following the runoff.

Norris rested his case following Scott’s brief testimony. The election commissioner defendants recalled Cain for additional testimony, just to clarify a few points. She testified that Norris’ personal representative at the recount was Lancaster — a fact that was previously identified as a potential issue for Norris’ ability to present his case — and she reiterated that he was provided with adequate access.

When Lancaster asked her on cross examination why one particular vote counter’s oath was not included in a stack of administered oaths, Cain explained that there was more than one group of oaths and Lancaster was looking at the wrong ones.

Dismissal

Following the May 29 hearing, which lasted about two hours, Fox ordered Hammer and the Saline County commissioners to file any post-trial briefs by noon on June 3 and for Norris to respond by the close of business on June 5. The defendants’ post-trial briefs repeated their arguments that Norris failed to adequately state a legal claim or present any evidence of a single improper vote in Saline County. 

Norris countered that the mere fact that the recount had the exact same result as the initial count didn’t prove that either count was accurate or that the ballots being counted were the ones that were actually cast. 

Monday’s order of dismissal made it clear that Fox didn’t buy Norris’ arguments in the least.

“One of the positive outcomes from taking testimony and evidence in this matter is that the court is able to affirmatively find that, based upon the testimony and evidence presented to the court, the defendant members of the Saline County Board of Election Commissioners performed their statutory duties related to the subject runoff recount in an exemplary fashion,” Fox wrote.

Fox noted that Saline, like the other five counties in which Norris sought a recount, “had the exact same vote totals at the conclusion of the recounts as were originally reported after the runoff election itself.”

“Such results are at a minimum, circumstantial evidence to support a reasonable extrapolation by this court of two additional conclusions,” Fox wrote. “First, that the other five counties involved in recounts also conducted the runoff election recounts in a fair and proper manner. Second, that the election protocols and election training methodologies established by the Secretary of State’s office for election contest recounts are sufficient and effective to ensure proper election contest recounts.”

Based on Norris’ failure to support any of the claims in his lawsuit with actual evidence of wrongdoing, Fox dismissed the case with prejudice, meaning Norris cannot refile it. A copy of the order of dismissal is available here. Norris may appeal the dismissal if he chooses.

Given his penchant for tilting at election-related windmills, an appeal seems both likely and ultimately pointless.