District 16 recount sought; 432 lost votes cited in suit
Northwest Arkansas News Source, June 24, 2006. BY DANIEL NASAW
 
A state Senate candidate who lost a Democratic primary election in which an equipment malfunction left more than 400 votes uncounted has filed a lawsuit requesting a recount.

Former State Sen. Alvin Simes of Helena-West Helena is asking a judge to throw out the results of the May 23 District 16 race and the subsequent runoff in Phillips County.

But because the four counties of the district already have certified the primary election and held the runoff, it?s unclear what Simes could achieve if a recount reverses the results of the primary.

?That?s a new one,? Tim Humphries, general counsel to the secretary of state?s office and Arkansas? top election lawyer, said of the suit. ?I?m not aware of anything exactly like this.?

Simes, who didn?t return a call Friday afternoon seeking comment, filed the suit Thursday in Pulaski County Circuit Court. Arkansas Code Annotated 7-5-801 mandates that suits contesting elections to state office be filed in Pulaski County.

In the filing, Simes states that he couldn?t request a recount by the statutory deadline because the Phillips County Election Commission didn?t give him a final precinct-by-precinct vote tally.

According to the official results, Simes took third place in the primary election, losing by 370 votes to State Rep. Arnell Willis of Helena-West Helena and Jack Crumbly, superintendent of the Earle School District.

Several days after the Election Commission certified that race and Crumbly and Willis began campaigning for the June 13 runoff, commission staff discovered that 432 votes cast at Allen Temple in Phillips County had mistakenly been counted as Republican ballots, effectively nullifying them.

The malfunctioning ballot tabulating machine was programmed by Election Systems & Software, the Omaha, Neb.-based company that in November signed a $ 15 million contract to provide election equipment to Arkansas counties. The company was widely criticized in the runup to the primary election for late delivery of equipment that sometimes proved faulty.

Election Commission Chairman Wesley Freemyer, who with several other county election officials was named as a defendant in Simes? suit, acknowledged that since the number of uncounted votes is greater than the margin of Simes? loss, Simes could have earned a spot on the runoff ballot. But he said that a reversal is unlikely.

?It?s Simes? right to file,? he said. ?If the judge tells us to count them, we?ll count them.?

Freemyer said, however, that he would contest the suit because he saw ?no point? in recounting the votes.

According to Simes? filing, the Election Commission counted 1, 723 early and absentee votes and 1, 389 primary election-day votes. However, the suit maintains, 2, 011 voters signed in at the polls on election day.

So in addition to the 432 miscounted votes, Simes said that 190 votes remain unaccounted for.

Phillips County election officials have acknowledged the 432 miscounted votes, but on Friday Freemyer said he didn?t know anything about 190 more votes that weren?t counted.

If election officials can?t find and recount all 622 uncounted votes, Simes wants the court to order another Democratic primary election for that Senate seat.

The June 13 runoff for the seat, which represents parts of Phillips, St. Francis, Crittenden and Lee counties, has also been marred by contention.

An election worker, for instance, entered 74 votes for Crumbly in Ward 1 in Forrest City into a computer spreadsheet that totals the results from each precinct, but Crumbly actually received 174 votes in that ward.