The state House District 71 seat in Tulsa, which hasn't been filled since December, will remain vacant until voters elect a winner in November.
The Oklahoma Supreme Court on Monday threw out the results of the April 3 special election, in which Democrat Dan Arthrell won by three votes.
A manual recount of the votes a week later showed Republican candidate Katie Henke won by a single vote. But shortly after the Tulsa County Election Board certified the recount results, two ballots — both cast for Arthrell — were found by precinct workers, which if counted, would have made him the winner by one vote.
“It is impossible to determine with mathematical certainty which candidate is entitled to a certificate of election,” Supreme Court Chief Justice Steven Taylor wrote in a brief order.
The vote was 8-0, with Justice John Reif recusing.
The justices' ruling was based on the evidence presented during a hearing last week and on the failure of the Tulsa County Election Board to comply with election code requirements, Taylor wrote.
“Therefore, the certificate of election issued by the Tulsa County Election Board is invalidated and the election is void,” Taylor wrote.
Seat won't be filled
Vacancies in the Legislature that occur this late in an election year are not filled by a special election because there isn't enough time to have an election before the November general election. The filing period for the Nov. 6 election was April 11-13.
The high court agreed Monday to take jurisdiction in the case, a couple days after attorneys for both candidates asked for the Supreme Court to step in and act quickly.
Both candidates, however, asked that the justices declare one of them the winner so House District 71 constituents would be represented at the state Capitol during the final month of this year's session.
The session is to end the last Friday in May; lawmakers still have to approve a state budget for the 2013 fiscal year and agree on whether to reduce the personal income tax rate next year.
Arthrell asked the Supreme Court to count the two ballots marked for him that were found after the recount, or if it was troubled by those ballots, to approve the April 3 election results.
Henke requested the high court uphold the recount's findings.
Both Henke and Arthrell filed last month for the House District 71 seat. Arthrell is unopposed in the June 26 Democratic primary election while Henke is opposed by Republican Evelyn L. Rogers, of Tulsa. Voters will fill the House District 71 seat in the Nov. 6 general election; the winner will succeed Republican Dan Sullivan, who resigned in December to become chief executive officer of the Grand River Dam Authority.
Republicans will continue to have a 66-32 majority in the House.
Two other seats in the 101-member chamber are also vacant until after the Nov. 6 elections.
Deflated by ruling
Arthrell, the first Democrat elected to the House District 71 seat in eight years, said he was deflated by the high court's ruling.
“This is a tragedy for the voters,” he said.
“It feels like it's all a waste,” Arthrell, 65, said. “It feels like a lot of work and energy went into something that many thought couldn't be done. We came this far and we kind of got stopped dead in our tracks. ... But at the same time, I've got a good head start on November.
‘Left without a voice'
Henke, 31, said she is pleased “the Supreme Court agreed that unsecured ballots should not be counted to decide the outcome of an election.”
“Although I'm disappointed the people of House District 71 are now left without a voice for the rest of this legislative session, I respect the court's ruling,” she said.
“Moving forward, I will continue fighting hard to represent the values and interests of our district,” Henke said.
“There are many differences between my liberal Democratic opponent and me, and we will be talking a great deal about those issues throughout the campaign.”
State Election Board officials determined two weeks ago that both ballots found after the April 11 recount matched numbers on the log for the tallying machine in Precinct 64 in Tulsa. The ballots were processed shortly before polls closed at 7 p.m.
State Election Board Secretary Paul Ziriax said he wasn't going to question the Supreme Court's ruling.
“They had to look at the totality of the evidence and render the decision that they felt complied with the law,” he said.
Arthrell told Tulsa County Election Board officials that two ballots were missing from the precinct tallies. Voting records showed 141 voters signed to vote and 141 votes were counted in the tallying machines, but only 139 ballots were in the ballot box. Arthrell asked county election officials to check the election tallying machine and tub used in Precinct 64 before the recount started; the election devices weren't checked until after the recount was done and approved.
Each tallying machine sits on top of a tub, and ballots go from the machine through a slot to the tub. Precinct workers obtain the ballots by unlocking the door of the tub, then put the ballots into a transfer box, which also is locked. Precinct workers apparently didn't retrieve all the ballots.
The election tallying devices were used for the first time earlier this year, and precinct workers still are getting used to them. The devices are similar to devices used nearly flawlessly for 20 years, but the ballots are printed on different, lighter paper.
“There are some procedural matters that we'll be working to do additional training with our poll workers before June,” Ziriax said.
Arthrell said he hopes precinct workers get additional training.
“It sounds like training, equipment all the way through,” he said. “Because it is a rarity that this kind of thing happens that no one was well-informed.”
It is impossible to determine with mathematical certainty which candidate is entitled to a certificate of election.”
Supreme Court Chief Justice