Update: City Council recount puts candidates even closer; hearing on alleged voting irregularities continues next week

The unofficial vote count now stands at 5,069 votes for challenger Grant Miller and 5,045 for Arthrell, a 24-vote difference.

Miller entered Thursday’s recount with 5,070 votes, and Arthrell had 5,043.

The story below published in Friday's Tulsa World:

After nearly four hours of testimony Thursday, the court hearing to determine who will be Tulsa’s next District 5 city councilor was continued until 9 a.m. Tuesday.

According to unofficial results from the State Election Board, challenger Grant Miller earned 5,070 votes to incumbent City Councilor Mykey Arthrell’s 5,043 votes — a margin of 27 votes.

The figure is significant because Arthrell petitioned the court last week for a hearing on nine alleged irregularities, including the fact that at least 27 people in Precinct 77 in District 5 did not receive ballots for the City Council race.

Whether that number is accurate, and what the implications might be if it is not, were at the heart of Thursday’s testimony before Tulsa County District Judge Doug Drummond.

Drummond granted the continuance at the request of Miller’s attorneys, who argued that they needed more time to gather evidence, including affidavits from individuals who say they voted in the District 5 election but whose votes were not recorded in the Tulsa County Election Board’s Election Day voter registry.

Thursday’s proceedings began with the judge granting Miller’s request for a recount. Tulsa County Election Board officials began the recount at about noon. It is expected to run well into the night Thursday.

“I don’t know that when the statute was written that they envisioned that we would have sort of dual tracks here — we have a recount, and we also have this irregularity,” Drummond said. “At least at this point, from the court’s perspective, having that recount completed seems to make a lot of sense in regard to irregularities.

Drummond said that if the recount produces new information or information that is inconsistent with the evidence presented in court Thursday, “I don’t see how that is workable, nor do I think that is fair.”

At the start of the hearing on alleged irregularities, Taylor Burke, representing Arthrell, presented evidence and testimony from Tulsa County Election Board Secretary Gwen Freeman that the number of people who did not receive City Council ballots was actually 35.

Officials had previously put the number of voters at Precinct 77 who did not receive a City Council ballot at between 29 and 31.

Part of the reason the number increased from 27 to 35 was that Drummond agreed to allow Precinct 377, which was voting in the same building as Precinct 77, to be included in the count.

Burke methodically went over the Election Board’s registry of voters — the book individuals sign before casting their ballots — with Freeman to show that in 35 instances the registry included no record that voters received a City Council ballot.

But attorney Jim Hicks, representing Miller, focused his questioning on whether the election registry was the best source of information regarding who voted and who did not. A more accurate recording of votes cast, he signaled in his questioning, was the election tape produced by each voting machine at the end of the day.

Using the machine counts and affidavits from individuals who say they voted but that the voting registry shows did not puts the actual number of people who did not vote for City Council in Precinct 77 at 18, Hicks said.

“Our position was this petition for irregularities only gave specific information as to Precinct 77 and because the disputed number is 18, Mr. Miller won by 27 votes, so there is no dispute,” Hicks said. “But the judge has allowed some testimony to spill over into Precinct 377, and we were able to kind of show there is a lot of difference between what is written in the books, the register book, and affidavits from people that are alleged to have not received a ballot but they say they did.”

Speaking after the hearing, Burke said he believes the most accurate information was provided by Freeman, who presented her findings to the District Attorney’s Office.

“There is this unique issue here of people who didn’t get ballots, and how do you determine with mathematical certainty who the winner was?” Burke said. “The law is very clear that you can’t testify about how you would have voted if you didn’t vote. You don’t get tag-backs. You can’t come back and do it. You actually have to cast the vote; that is the best evidence and the only relevant evidence.

“So because there are those 35 votes, that is what created the irregularity that justifies this. Everyone agrees there was irregularity; it is just simply was there sufficient irregularity to exceed the delta in the votes, 27.”

Miller said he is working with Women for Tulsa, which he described as a volunteer group, to contact at least 30 people who are identified on the election registry as not having received a City Council ballot. As of Wednesday night, they had contacted seven people on the list, three of whom had signed an affidavit saying they did cast a City Council ballot.

Miller’s hope is to have more such affidavits when court resumes Tuesday.

“The most important takeaway I would give you from today is: You didn’t hear one witness testify that they did not receive a ballot, not one,” Hicks said after the hearing. “There was testimony that maybe someone didn’t and the records show that they weren’t given one, but not one of those people came forward and gave testimony that they did not receive a ballot, and to me that is critical and the judge should rule in our favor summarily. But we’ll see.”

Sheriff Vic Regalado also took the stand Thursday to explain how his office was made aware of the problems at Precinct 77 and how his office responded. Regalado, who had endorsed Miller, held a press conference on Election Day to share the findings of his investigation.

The sheriff has acknowledged that he learned of the problems at Precinct 77 on Election Day morning from Miller.

Regalado has said he checked with his in-house attorney, Tim Harris, as well as the Tulsa County District Attorney’s Office, before having his office proceed with the investigation and that he has played no active role in it.

He testified Thursday that he held the press conference because he believes it is important for the public to have trust in the election system and because he had received many requests from the media about the incident and thought a press conference would be the best way to address those questions.

Arthrell has accused Regalado of holding the press conference to try to affect the outcome of the election while votes were still being cast.

The new class of Tulsa city councilors is scheduled to be sworn in Dec. 5.

Featured video: