Ensign’s recount petition fails

Friday, Dec. 4, 1998 | 11:17 a.m.

CARSON CITY -- Rep. John Ensign lost another round today in his battle to overturn the 401-vote victory of Sen. Harry Reid in the November election.

District Judge Mike Griffin dismissed a petition filed by Ensign that challenged the way Washoe County wants to recount the votes.

Ensign has asked for a statewide recount, and many of the counties have already started. Elko County so far is the only one completed, and in that tally, Reid gained a vote.

Problems occurred in Washoe County with misprinted and misshaped ballots that could not be counted accurately by computer. Those nearly 6,000 ballots therefore had to be counted by hand to get an accurate tally.

Secretary of State Dean Heller, who is chief of elections, directed that Washoe County duplicate those defective ballots for the recount.

Ensign's lawyer Alex Flangas objected, saying there is nothing in the law to allow Heller or Washoe County to duplicate the ballots. He said duplicating the ballots could lead to human errors or tampering.

Griffin ruled, however, that Heller and Washoe County have the discretion to take action to ensure an accurate vote. He denied the petition for either a temporary restraining order or a writ of prohibition.

Nevada law provides that 5 percent of the ballots in each county must be tallied in the first step of the recount -- both by hand and then by computer. If there is a discrepancy of more than 1 percent of the vote that was previously certified, then a hand count is conducted of the all the ballots in the county -- in Washoe County's case, 96,000 ballots.

Ensign's strategy was to recount the faulty ballots in the machine to ensure a different outcome from the certified vote. And that could lead to a hand count of all the ballots.

Flangas argued that Heller and Washoe County want to go around the law in duplicating the ballots.

But Deputy Attorney General Kateri Cavin said the duty of the secretary of state is to determine who won the election. She said all the votes must be counted to ensure nobody was disenfranchised, and running a defective batch of ballots through the computer will not assure an accurate count.

"There has been no harm to Mr. Ensign," she said. She argued the directive by Heller to duplicate the votes was discretionary and not subject to a writ to force secretary of state to do anything.

Griffin said this was an "unusual cause of action." And he said his jurisdiction was limited in this case to the procedures used in recounting the ballots, not in determining whether there were any abuses. That would be up to the U.S. Senate, he said.

Earlier this week, Ensign asked the District Court in Washoe County to step into the dispute. It declined.

Ensign's forces have argued before the Washoe County Commission and the Nevada Supreme Court, which acted as a canvassing board, that there's been too many discrepancies to certify the vote count as accurate.

Washoe County plans to begin its recount Monday, and it has five days to complete the process.

Flangas indicated that the Griffin ruling will be appealed to the Nevada Supreme Court.