LAWTON – A motion to dismiss District Attorney Kyle Cabelka’s petition to throw out the results of the recent sheriff’s runoff election and ask the governor to schedule another vote is scheduled to be heard at 9 a.m. Tuesday in Comanche County District Court.
Assistant Attorney General Evan J. Edler filed Sept. 5 for an “expedited adjudication” of his motion to dismiss on behalf of Comanche County Election Board Secretary Amy Sims and State Election Board Secretary Paul Ziriax.
The case will be heard by District Judge Jay Walker.
The petition Cabelka filed Aug. 30 in Comanche County District Court, seeking to have the results of the sheriff’s runoff decertified, contains “a multitude of defects,” Edler asserted.
For starters, he wrote, state law “dictates that a petition such as this may be brought only by a candidate of the relevant election.” Also, state law “specifies that a petition alleging fraud or irregularity in an election must follow a particular process,” Edler related.
Cabelka “has flagrantly disregarded these statutory requirements,” Edler charged.
Finally, the D.A.’s petition “fails to present allegations sufficient for the purposes” of state statutes, Edler wrote.
The Assistant A.G. wrote that “the mathematical certainty of an election outcome” in Oklahoma “is tested not by possibilities or probabilities but by simple arithmetic.” As a matter of public policy, he wrote, a court “usually indulges every presumption in favor of the validity of an election.”
An election that is not “clearly illegal” will be upheld, an Oklahoma court ruled in 1989. “Absent instances of fraud or corruption, and ‘in the presence of merely statutory informalities,’ election results are not to be disturbed.” Those principles are “based in the electorate’s interest in having its vote count and avoidance of the ‘expense involved in conducting a second election,’” the court ruled 35 years ago.
Edler argued that Cabelka “has no legal basis” to file his petition. Only a candidate in the Aug. 27 runoff – in which Michael Merritt defeated Andy Moon – “may file a petition contesting the results” of that election.
The state Legislature “set out a clear path for contesting election results,” Edler noted. Such a contest “shall be initiated by ‘filing a written petition with the appropriate election board’, which is the board “with whom the candidate filed his/her declaration of candidacy…” Afterward, the Secretary of the election board that receives the petition “shall set a hearing in the same manner as provided for recounts.”
Cabelka has attempted to circumvent the process by filing his petition with the Comanche County District Court rather than with Election Board Secretary Sims, as required by state statute.
Furthermore, Edler wrote, Cabelka’s petition “falls well short of the standard required by Oklahoma law” to prevent certification of an election.
Title 62 of the statutes requires such a petition to “allege a sufficient number of irregularities and of such a nature as to (1) prove that the contestant is lawfully entitled to be certified the party’s nominee… or (2) [p]rove that it is impossible to determine with mathematical certainty which candidate is entitled to be certified as the party’s nominee…” No allegation has been made “that the Petitioner [Cabelka] is entitled to be certified as nominee,” Edler wrote.
DA’s petition ‘falls well below the bar’ The state Supreme Court’s discussion of that requirement “makes it abundantly clear” that Cabelka’s petition “falls well below the bar” set in state law.
“To so impeach the precinct returns, a contestant must at least make a showing either illegal votes were cast or votes were cast by legal voters that should have been counted, but were not, or were counted incorrectly, in sufficient numbers, to eliminate his opponent’s margin of victory,” the Supreme Court ruled in 1991.
In the Comanche County sheriff’s runoff election, 6,562 votes were tabulated in the Aug. 27 election, and Merritt bested Moon by 628 votes. A “properly filed” petition in this case “would have to allege at least 628 irregularities,” Edler pointed out. Cabelka’s petition “does nothing of the sort.” The D.A. “appears to allege irregularities occurred with regard to five individual ballots.” Those included:
• A registered Democrat and a registered Independent who were given ballots in Precinct 28 for the Republican sheriff’s runoff. Both claimed they “attempted to plead to” a poll worker that they should not be allowed to vote in that contest, but were nevertheless instructed by election officials to cast their ballots.
• An unknown voter in Precinct 28 who was either a Democrat or an Independent also voted in the sheriff’s runoff. That irregularity was found because 15 Republicans registered to vote in that precinct, but 18 ballots were cast in that race.
• The day after the election Sims reviewed the voting records from Precinct 27 “and discovered that one irregular vote had been cast” in the sheriff’s runoff, Cabelka reported.
• In addition, Cabelka said, in comparing the Precinct 31 registry with the total number of votes cast “it was quickly revealed that at least one irregularity existed…” The irregularities “must be shown … to make it impossible to determine who is entitled to a certificate of election,” Edler wrote. That is not the situation in Comanche County, he contended.
In a related matter, District Judge Scott Meaders recused himself on Sept. 3 from the disputed election. Judge Walker was drawn for the case by Comanche County Court Clerk Robert Morales.