How to overturn an election.
By Nishant Mohan
The Senate State Affairs Committee voted unanimously to recommend the senate confirm the election of Sen. Mark Nye, D-Pocatello, after reviewing a contest of election by Nye’s opponent, Tom Katsilometes, Monday.
Katsilometes alleged Nye received illegal campaign contributions, violated “The Sunshine Law,” and was given an advantage in the election by faulty ballot machines.
“I just don’t think any of these issues are sufficient enough, if they even exist, are they sufficient enough to lead us to a new election or any other conclusion,” said Sen. Pro Tem Brent Hill. “If a possible violation of title 67 chapter 66 would create grounds for a contest of election, how many of us would be in trouble? Just go onto the Secretary of State’s website and look at how many amendment campaign disclosure reports are filed.”
Some senators on the committee said they felt rushed in the time allowed for them to understand the material.
“It was rather daunting when the secretary of state brought the apple box full of documents to us and said ‘good luck,’” said Sen. Siddoway, chair of the committee.
Idaho Code 34-2106 allows any elector to contest an election. The code defines an elector as anyone registered to vote in the election. The contestant need only contest within 20 days of the election. The statute has no other restrictions, and the body is required to review the contest.
Nye and Katsilometes’ counsels faced about an hour of questioning each from Republican senators, mostly from Majority Leader Sen. Bart Davis. Democratic senators asked no questions of either side. Nye, though present, did not speak during the proceeding and no questions were asked of him.
Contest of an election is rare, and last occurred in 1981. Minutes of the State Affairs Committee from the time state that then-Lt. Governor Phil Batt presented to the committee “the ‘box’ which he had received from the Secretary of State and which contained material pertaining to the election challenge of Senator Peavy.”
By contesting the election, Katsilometes was granted power of subpoena by Idaho Code 34-2108, a power only limited by the incumbent’s ability to challenge the subpoenas. This power is granted to anyone contesting an election. The legislature is given the authority to hear challenges and Hill deferred one of the only two challenges to Senate Majority Leader Bart Davis and reviewed the other himself.
In the 1981 case, lawmakers on the committee expressed concern over ease of contesting an election.
“Anyone can sue you if the have the money to file,” said then-Sen. Jim Risch at the time. “This may be something that needs looking at in the future in our laws.”
Article 3 Section 9 of the Idaho Constitution states that “Each house, when assembled shall…judge of the election, qualifications and returns of its own members…”
“The senate has absolute discretion here,” said Brian Kane, assistant chief deputy to the attorney general. “There is no appeal.”
Lt. Governor Brad Little said last week that state code requires the Secretary of State’s office collect and deliver evidence in the case of a contested election, regardless of whether the evidence is substantial. He said the code was originally intended to require the presentation of the actual ballots, but that a modern contest looks different.
The minutes from the 1981 contest state that several committee members raised questions about improving the election laws on challenges, voter registration, and roving registrars.
Sen. Jeff Siddoway, who chaired the committee, said the senate is looking at ways to improve this process and will be exploring legislation throughout the year.
Nye, formerly a member of the Idaho House of Representatives, was elected last year to the Idaho Senate.