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Court Ruling to Be Appealed: Council Challenger to Fight Judge's Declaration of Winner

Posted on: Wednesday, 17 May 2006, 09:05 CDT

By P.J. Lassek, Tulsa World, Okla.

May 17--Jon Kirby announced Tuesday that he will ask the Oklahoma Supreme Court to throw out a judge's ruling that declared City Councilor Bill Martinson the winner of the disputed District 5 race.

"I decided to appeal mainly because of the overwhelming support" from constituents and neighborhood activists, said Kirby, who lost the April 4 election by 21 votes.

Tulsa County District Judge Doris Fransein ruled Monday that Kirby failed to provide evidence of voter irregularities, reversing her earlier ruling that called for a new election.

Fransein ordered the Tulsa County Election Board to issue a certificate of election declaring Martinson the victor. But Kirby's lawyers filed a motion Tuesday in Tulsa County District Court to stay Fransein's order to the Election Board pending the appeal.

Martinson said he is "not surprised that Kirby is filing an appeal -- based on his past behavior, not based on there being any merit to an appeal."

"At some point I'd like to see Tulsa get this behind us, and he can make it real easy by just conceding," he said. "I won the election. I prevailed in the recount. The judge said I ought to be certified. Let's move on."

At the earlier hearing, Kirby's lawyer presented 23 people who no longer lived in District 5 but who said they had voted in District 5 precincts in the April election. Of those, nine live in suburban communities such as Coweta, Sperry, Bixby and Broken Arrow.

"Many Tulsans are concerned about people voting in our elections that don't live in Tulsa," Kirby said.

"As much as we need closure, we need to do what we need to do to make sure that people who live in Broken Arrow and other cities aren't voting in Tulsa elections."

Fransein initially called for a new election because the number of voters who no longer live in the district outnumbered Martinson's margin of victory.

But at Monday's hearing, the judge agreed with Martinson's lawyers that Kirby failed to show evidence that the voters in question actually voted in the council race between Martinson and Kirby.

In motions filed with the court requesting Monday's hearing, Martinson's lawyers argued that the court cannot assume that 21 voters cast illegal ballots without knowing whether they voted in the District 5 race.

The ballot included the mayor's race and numerous city charter amendments.

Tulsa County Election Board records also show that 308 people who voted April 4 in District 5 did not vote in the council race.

Martinson's lawyers argued that the court erred when it invalidated the election because it must find that the 23 voters cast illegal votes by voting in the council race.

Fransein agreed with Martinson's lawyers, saying that "evidence could have been presented (by Kirby) as to whether those voters in fact cast a ballot in that particular race."

She said that information could have been determined without revealing whom the voters had selected.

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P.J. Lassek 581-8382 pj.lassek@tulsaworld.com

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Copyright (c) 2006, Tulsa World, Okla.

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Source: Tulsa World

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