A recall election for Mayor Jim Suttle is not a sure thing, even if the Douglas County Election Commission finds enough valid signatures to force the vote.
Douglas County District Judge Peter Bataillon has scheduled a Dec. 20 hearing to review Suttle's allegations of improprieties — including fraud — in the way the signatures were gathered.
Bataillon refused, however, to push back the deadline for election officials to verify signatures seeking the recall.
It would be premature to rule on the petition process until Election Commissioner Dave Phipps completes his verification work, the judge said during a Wednesday hearing.
Under state law, Phipps' office has 15 days — or until Saturday — to determine whether the Mayor Suttle Recall Committee has the 26,643 valid signatures needed to force a recall election. The recall committee turned in about 37,600 petition signatures.
“Nothing's going to change,” Phipps said after the hearing. “We'll make our announcement on Saturday.”
If Phipps concludes that enough valid signatures have been gathered, the City Council would set a date for a recall election, probably Jan. 25.
Suttle's attorney, Vince Powers, said the Dec. 20 court hearing probably would be canceled if Phipps determines the recall effort has fallen short.
If Phipps decides the petition effort succeeded, Powers said, he will ask Bataillon to stop the election based on the mayor's allegations.
“We're going to prove fraud,” Powers said. “The question is how much fraud we have to prove.”
Suttle filed a lawsuit last week asking for more time to review the petition signatures. Suttle contends that some petition circulators were observed breaking the rules for obtaining signatures.
Among other things, Suttle contends that some petition circulators were observed making “false statements” by telling prospective petition signers that taxpayers wouldn't pay the expense of a recall election because “we have backers who are willing to pay.''
Phipps has said the city would be responsible for the costs of a recall election.
One petition circulator, according to the lawsuit, told a man the mayor put a 15 percent tax on all restaurant meals. The new tax on dining, bar tabs and catering bills is 2.5 percent.
In another instance, Powers said, a paid circulator implied he had to meet a signature quota to receive a certain amount of pay. Under state law, petition circulators cannot be paid based on the number of signatures collected.
Noelle Obermeyer of the anti-recall group Forward Omaha contends that many signatures — including entire pages — are invalid, including several where a petition circulator crossed out his or her signature and had another circulator sign it. Her group is sending postcards to people whose signatures appear on the petitions, asking whether they actually signed.
Phipps said he hasn't received any information from Suttle or Forward Omaha. He said he's willing to look at any evidence of fraud or other problems.
He said that in order to throw out a signature, however, he would need to know the names of the petition circulator and the signer as well as the petition page and line number.
“I need to know specifics,” he said.
In addition, Phipps said, he must follow state law when validating petition signatures.
Under state law:
>> Petition circulators must personally witness signatures.
Signatures must be from registered Omaha voters and match voter registration records.
>> Petition pages must be notarized.
>> A person can sign only once. If someone signs more than once, only one signature would be valid.
Phipps pointed out that state law doesn't prohibit petition circulators from making false or misleading statements to obtain signatures.
As long as the circulator reads aloud the stated reason for the recall and the mayor's defense statement — as required under state law — Phipps said he would accept the signature.
A judge would have to weigh allegations of inaccurate statements and whether they constitute fraud, Phipps said.
“People have a right to try to campaign for their issue,” he said.
Each signature is being decided on a case-by-case basis, Phipps said. If one signature from a circulator is found to be invalid, the circulator's other signatures could still be deemed valid if all the rules were followed.
“I can't make a broad generalization based on one person not getting the correct information. I'd need evidence that they did it to everybody,” Phipps said.
Phipps said he plans to check every signature, even though under state law he could stop if the count reached about 29,300 valid signatures.
Bataillon rejected motions by the recall committee and the Douglas County Attorney's Office to dismiss Suttle's lawsuit, saying courts may intervene in election matters to check for instances of fraud.
J.L. Spray, an attorney for recall committee co-chairman Jeremy Aspen, said Suttle was, in effect, trying to “judicially alter” the election commissioner's duties.
“It's not appropriate to be looking for problems” as long as the election commissioner is following the legal process for verifying signatures, Spray said.
Aspen has said his petitioners followed the law at all times. He said he was pleased by the judge's decision to allow Phipps to continue verifying the signatures.
Suttle did not attend the court hearing. Powers said he spoke to the mayor afterward.
“He was upbeat,” Powers said.