Court rejects Barger’s request for hand recount in Lincoln legislative race

LINCOLN, NE (December 15, 2022) — A Lancaster County District Court judge on Thursday dismissed a legal challenge by Lincoln legislative candidate Russ Barger that sought to force the state to hand recount his 223-vote loss.

Judge Kevin McManaman’s ruled against Barger’s lawsuit on a technicality and on its merits. The judge said his court lacked the jurisdiction to consider the lawsuit because Barger’s filing lacked a notarized signature.

Jennifer Huxoll of the Nebraska Attorney General’s Office, arguing on behalf of the state, argued that McManaman couldn’t consider Barger’s filing because of the missing electronic notary.

The judge agreed, writing that the “law of Nebraska is clear that the filing of a motion and affidavit for a verified petition is a jurisdictional requirement” before weighing in on a requested writ of mandamus.

The judge also sided with Secretary of State Bob Evnen’s office and Attorney General Doug Peterson’s that state law left the decision of the method of recount to the secretary.

McManaman, in his ruling Thursday, found “no merit” to the argument put forward by Barger’s lawyer, David Begley, that separate sections of state law and historical practice hint at a preference toward hand recounts.

“The statute simply does not say what Relator claims, but it does say that the Secretary of State shall supervise recounts,” the judge ruled.

During a hearing on Tuesday, the judge let both lawyers argue the lawsuit’s broader question: whether state law requires Evnen to carry out the kind of recount sought by Barger, who lost by more than 1%.

Under state law, an automatic recount is triggered if the votes separating two candidates is less than 1%. State law also law requires that such a recount be carried out in the same manner as the election.

Nebraska law is not as specific regarding recounts for candidates who lose by more than 1%. Barger, a Republican, lost his race in Lincoln’s Legislative District 26 by 223 votes to George Dungan, which was outside the 1% requirement for an automatic recount.

Evnen’s office, in a letter, denied Barger’s request for a hand recount. The letter argued that state law requires election officials to handle recounts like elections: with paper ballots counted by machines.

Barger had said earlier this week that if the judge tosses his lawsuit on a technicality, he didn’t think it would move forward. On Thursday, he said he needs some time to absorb the ruling.

“We are just reading the decision,” Barger said. “We are going to need to make some decisions on next steps, if any.”

Huxoll, of the Attorney General’s Office, argued that any recount method not specified in state election law reverts to the secretary of state’s discretion as the state’s administrator of elections.

Begley had argued that “if the Legislature wanted the same procedure used on a recount as during the election, it would’ve used the same language.”

Barger would have had to pay for any recount outside the automatic margin, unless the outcome of the election changed, which was unlikely.

The Secretary of State’s Office estimated a hand recount could cost $11,000. A machine recount would cost about $6,000.

Barger had said his campaign is trying to raise $25,000 to cover the recount costs and any legal fees. He said this week that he was unlikely to push for the recount if it had to be handled by machine.

Part of the Republican Party base questions the use of voting machines since former President Donald Trump lost his 2020 race to President Joe Biden. The loss, however, was audited and verified in swing states.

The Nebraska Republican Party had urged supporters to attend the hearing on Tuesday, posting on Facebook that the party supports the push for hand recounts. About 25 people attended the hearing. Evnen is a Republican as well.

Election experts and independent auditors have found that machine counts tend to be more accurate than hand counts. But Begley’s brief pointed to a legislative race in Iowa that saw a six-vote lead for a Democrat turn into an 11-vote win by a Republican after a hand recount.

Recounts of state legislative races rarely move tallies by more than tens of votes, unless the districts are large, election observers said.

Dungan, Barger’s opponent, said Thursday that he agrees with the court’s ruling: “I’m excited to get this all behind me and get down to work.”