Circuit Judge Mackie Pierce this morning dismissed Republican Rep. Jim Sorvillo’s second lawsuit to prevent Democrat Ashley Hudson from taking his seat representing District 32 next year.
Sorvillo had asked the court for an injunction to prevent certification of her election by the secretary of state and governor until the state Claims Commission hears his complaint there that the election results should be thrown out and a new election held.
Hudson defeated Sorvillo by 24 votes in certified results, which could have included up to 32 absentee ballots that had been disqualified, enough to change the outcome if most of them went for Sorvillo. But Hudson has argued, among other things, that some ballots were improperly disqualified.
The Claims Commission has a hearing on Dec. 22 (or Jan. 4 if that hearing can’t be held) to make a recommendation on Sorvillo’s claim to the House, which the Constitution says has authority over its membership. It also will meet this afternoon to discuss Hudson’s argument that the claim should be dismissed.
Hudson argues that a statute allowing Claims Commission review of House election contests is unconstitutional. It is appointed by the governor, the executive branch.
Sorvillo had sued previously to prevent certification of the election results and appealed an adverse decision by Circuit Judge Wendell Griffen. He then voluntarily dismissed the appeal and filed a new suit, which Hudson’s attorney said amounted to forum shopping for a new judge. Pierce drew the case and ruled today to dismiss it “with prejudice,” meaning it cannot be refiled.
During the hearing, he commented that he lacked jurisdiction to issue an order to the governor.
Governor Hutchinson had asked that the case be dismissed, saying he held sovereign immunity and couldn’t be ordered to do something. His filing said the Claims Commission was the proper forum to hear the dispute. Secretary of State John Thurston, who has already certified the result, also asked for dismissal, saying election complaints were between candidates.
Hudson’s lawyer, Jennifer Waymack Standerfer, said in case filings that material presented by the Pulaski County Election Commission staff indicated 27, not 32, disqualified ballots were counted. To prevail in a challenge, she has argued that Sorvillo must determine how those ballots were cast.
Hudson also argued that the Election Commission erroneously disqualified many more than the 27 ballots and if there is to be a review of the election, all those decisions should be reviewed.
In dismissing the case, Pierce only took up the question of whether he could hear the case and the fact that the suit didn’t name Hudson as a defendant. That came without a ruling on Hudson’s motion to intervene, so he didn’t reach issues raised by Hudson attempting to enjoin the Claims Commission hearing and to declare the election results valid.
UPDATE: The Claims Commission decided it had jurisdiction to hear the claim and denied 3-0 Standerfer’s motion to dismiss. The decision that the House had the power to delegate review to the commission was led by an analysis by Paul Morris, the chair of the proceeding. Standerfer argued that the commission could consider Hudson’s qualifications to be elected, but it didn’t have the power to review the election process itself and courts also have said election contests shouldn’t be “fishing expeditions.” That is, a contestant needed to have a claim that votes were improperly counted and affected the outcome. She also argued that Sorvillo hadn’t proceeded properly to make a claim of election irregularities at this point.
The commission decided that it was unrealistic to complete the case as planned at a hearing on Dec. 22 given the amount of testimony Sorvillo’s lawyer, AJ Kelly, is attempting to gather. There will be interim meetings on the development of the case with the final hearing on the merits on Jan. 4. The new legislature is to be sworn in on Jan. 11.
Lauren Hoover, an attorney for Hudson, raised questions about depositions taken by Kelly in the case. She said the commission shouldn’t begin reviewing depositions already submitted because the witnesses haven’t been cross-examined. She said, specifically, that testimony from Kristi Stahr, a Pulaski Election commissioner, was “replete with triple hearsay” and testimony about documents she’d never seen. Hudson’s lawyers haven’t been able to cross-examine her yet, she said.