Judge sets Tuesday hearing on motion to dismiss challenge to sheriff’s runoff election

District Judge Jay Walker will consider a petition filed on behalf of the Comanche County Election Board by Assistant Attorney General Evan J. Edlerm, asking the court to dismiss a petition filed Aug. 30 by Comanche County District Attorney Kyle Cabelka.

In his petition to stop certification of that election, Cabelka cites irregularities in the Aug. 27 runoff election that he said make it “impossible to determine with mathematical certainty which candidate is entitled…to be issued a certificate of election….” Cabelka also said he had lost confidence in the election’s integrity and the election board’s ability to certify results.

The hearing is set for 9 a.m. Tuesday in Judge Walker’s courtroom in the Comanche County Courthouse.

The issue centers on voters who were not registered as Republicans, being given ballots to vote in the closed runoff for sheriff between Michael Merritt and Andy Moon. While Merritt received 628 votes more than Moon did, the Comanche County Election Board voted Aug. 30 to suspend certification of those results after Cabelka filed his petition. Because Cabelka acts as the county election board’s attorney, Election Board Secretary Amy Sims asked the Oklahoma Attorney General’s Office to represent her office. The petition was filed against the Comanche County Election Board, Sims, Comanche County, and Oklahoma Election Board Secretary Paul Ziriax.

Edler’s response asks Judge Walker to dismiss Cabelka’s petition, with an emergency request for expedited adjudication because of election timelines. The winner of the Republican runoff will face the Democratic challenger for sheriff in the Nov. 5 General Election, and Edler’s petition says in order to meet state-mandated timelines for sending absentee ballots to military personnel and other out-of-state voters, runoff results must be certified no later than Sept. 13.

Edler also said Cabelka “fails to present allegations sufficient” under state statue. Writing that there are a “multitude of defects with the petition,” Edler said state law dictates such petitions can be filed only by a candidate in the race in question and must follow a particular process. Specifically, only a candidate has the authority to file a written petition with the appropriate election board (Cabelka filed his petition in district court) and while a provision in law admits nothing can prohibit any proceedings in district court, that provision doesn’t apply in this type of election, he said.

Edler said the petition also falls short of the standard required by Oklahoma law to stop certification. State law specifies a petition must allege a sufficient number of irregularities so that the candidate who filed it is entitled to be certified as the nominee, or prove it is impossible to determine with mathematical certainty which candidate is entitled to be certified. State law also specifies irregularities must be in sufficient numbers to eliminate the opponent’s margin of victory, he said.

Edler said Merritt won the election by 628 votes, while Cabelka’s petition alleges five ballots were cast that should not have been (an election board review set that number at eight).

“Needless to say, that number does not even begin to approach the figure required to establish an impossibility to mathematically determine the Runoff’s winner,” Edler wrote.