By Karen Hutchinson-Talaski

Staff writer

HERMISTON — In an election that was controversial from the start, the controversy hasn't died.

The race for municipal court judge in Hermiston was decided Tuesday when voters turned in their ballots. The county dutifully counted the votes cast for Keith Kirkwood, Steven Zielinski and incumbent John Smallmon.

Smallmon came out ahead with 916 votes to Zielinski's 530 and Kirkwood's 308. That should have been the end of the matter. Smallmon won, according to the Umatilla County Elections Division.

However, there is a bit of a wrinkle. Smallmon received 48.38 percent of the votes cast, which includes over and under votes. In order to be elected to office in races with more than two candidates, the person receiving 50 percent plus one is the winner.

An overvote occurs when someone marks two or more candidates in the same race. An undervote happens when someone does not cast a vote for a particular race.

According to Patti Chapman, elections manager for Umatilla County, the over and undervotes do not count. By not counting the over and undervotes, Smallmon received 52 percent of the votes actually cast.

"It is the votes cast for candidates that count," Chapman said.

Enter the city of Hermiston's City Charter.

The city's charter, according to Hermiston's Finance Director Bob Irby, states if three or more candidates declare their candidacy for mayor, municipal judge or wards-specific councilperson, the two candidates with the highest number of votes go to a run-off election in the fall.

If one candidate receives the majority of all votes cast, that person's name still goes on the November ballot, but as an unopposed candidate.

"Smallmon received more than 50 percent of the vote," Irby said, "since the undervotes don't count."

Zielinski, however, isn't accepting the expanation.

"136 people voted ?not' John Smallmon," Zielinski said. "If the votes don't fit, Smallmon is not legit."

The Secretary of State's office disagrees. A spokesperson in the state elections division office said that undervotes have never counted in an election.

"State statute 249.088 subsection one addresses this," the spokesperson said. The statute says that only the votes cast count.

She said that undervoters don't vote for a variety of reasons.

"Some people only vote for presidential candidates and no one else," the spokesperson said.

Zielinski says that doesn't matter. If a person voted for no one, it is still a vote. He asks, too, why bother to count the undervotes if they don't count. Chapman says counting under and overvotes helps to keep track of the number of ballots returned.

Zielinski also says he intends to file an ethics complaint against Hermiston City Attorney Gary Luisi for unethical behavior regarding the election.

"How can Luisi be a Smallmon supporter," Zielinski said, "and make decisions for the city regarding interpretation of the city charter?"

Zielinski hopes the complaint will give the city an unbiased view of how elections are to be decided.

Smallmon was not available for comment regarding the race. He is out of town until the May 25.

And that brought a comment from Zielinski.

"If John were here, he would have the opportunity to do the right thing," Zielinski said.

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