The attorney representing several voters in the Fort Shaw Irrigation District filed a motion March 6 requesting summary judgment in their case against the district and Cascade County over 2023 election errors, arguing that the mistakes were in part due to former county employees.

On May 26, 2023, Steve Potts filed suit on behalf of Elliot Merja, Riley Denning, and Timothy and Laurie Miller.

The suit is filed in regard to the Fort Shaw election, as well as the West Great Falls Flood Control and Drainage District, but the motion for summary judgement filed March 6 pertains only to the Fort Shaw election.

Potts wrote that he had contacted counsel for the district, who opposed the motion; and counsel for Cascade County and Sandra Merchant, who didn’t take a position “with respect to whether a new election should be conducted. However, they oppose any suggestion that Cascade County should be responsible for the costs of such re-election,” according to the filed motion.

In the original complaint, Merja, Denning and the Millers allege that the county, Merchant and two special districts violated multiple provisions of state law.

Merja and Denning are voters in Fort Shaw. The Millers are voters in the flood district.

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They ask the court to void the two special district elections and order a special election should be held.

In the case of the Fort Shaw Irrigation District, Merja and Denning own irrigable land within the district and were candidates for the district’s board on the May 2 ballot.

They allege that Merchant, the county and the district violated state law by incorrectly instructing voters and not sending ballot to all eligible voters.

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They argue that the Fort Shaw Irrigation District refused to accept valid change documents regarding qualified voters and/or designated agents at least 14 days prior to the election; failed to notify the election office within four days of receiving those documents and failing to provide necessary information regarding those changes so the election office could administer the proper ballots.

In the suit, Merja and Denning allege that Merchant and the county violated state law by mailing ballots on April 20-21; not providing signature and secrecy envelopes.

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In their brief submitted March 6, they argue that Lynn DeRoche, former county elections employee, provided incorrect information to Merchant and Charla Merja, clerk of the Fort Shaw Irrigation District.

They argue that state law changed in 2019 to eliminate the requirement that those who co-own property in the district must designate the person who will vote on behalf of those acres.

They argue that DeRoche provided a sample letter from previous elections that included language indicating those designations were required.

The district sent letters with that requirement.

The current law requires that if there’s a change in the designated agent, a new signed document must be presented to the district and “the list of designated agents compiled under this section must be maintained and certified by the irrigation district to ensure that only one vote is cast on behalf of each acre or fraction of an acre.”

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Merja and Denning had designations on file previously so shouldn’t have required new forms, according to the lawsuit.

In emails , DeRoche told Charla Merja, the district clerk, on Jan. 20, 2023, that, “I would still get all joint property owners new letters because we have sealed up the last letters with the last election,” that was conducted in 2021.

Charla Merja responded that, “I won’t say anything about changes if you don’t have access to the previous forms. We’ll just have everyone complete them.”

In his brief, Potts wrote that the district never produced the list of designated agents required by law in 2021 “so it is safe to assume it had not maintained such a list.”

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Potts alleges that DeRoche and Charla Merja were attempting to ‘pull the wool’ over electors by requiring new designation letters.

In a separate email on Jan. 20, 2023, DeRoche wrote to Merchant that the Fort Shaw Irrigation District would be having an election and that they are run manually based off acres per vote.

“The irrigation district sends a copy of their list of property owners and acreage within the district. The board will also need to vote on how they would like to proceed with the voters per acre,” under state law, and “if there are joint property owners, only one owner will get the vote. So, there must be a designated voting authority sent to all joint property owners.”

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DeRoche continued that in the past, the election office had sent the letters, but upon further review of the law, the district was responsible and asked Merchant how she’d like to proceed, including the correct current version of Montana code pertaining to irrigation district voters, according to emails submitted with Potts’ court brief.

Merchant responded that she agreed the district was to send out the letters. She asked if the office could supply a sample letter to the district and “we should support [Charla Merja] as much as we can in making the change to the district taking care of this.”

DeRoche did provide copies of letters from past elections for the district, including 2021, which “unfortunately, letters used in the past did not incorporate the statutory changes made in 2019, but no one seems to have paid attention to this,” Potts wrote.

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Merja and Denning both indicated in their court filings that they had voter designations on file from before the 2019 law change, but did not indicate if they had noticed or raised the issue of the the incorrect language in the letter sent by the district for the 2021 election.

The letter sent to property owners in the Fort Shaw Irrigation District also included information telling nonresident voters that they had to vote in person at the election office, but the law allowed them to vote by mail, facsimile or other electronic means and had been in effect since 2009, “but neither the election office nor Ms. Merja, the FDIS secretary, paid attention,” according to the brief filed March 6.

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The brief does not mention whether anyone had noticed that incorrect language or brought it to the district or election office’s attention in previous elections.

In his brief, Potts wrote that “the bungling here was not one simple mistake by one person. It involved layers of bungling by all of the following bunglers, some of which was negligent and some of which was intentional: Lynn DeRoche, election office employee; Sandra Merchant, elected clerk and recorder and election administrator, FSID clerk Charla Merja; FSID board of commissioners, especially Kennard Steinke; Cascade County Commissioners who voted to certify the election; Cascade County attorney, advising the Cascade County Commission.”

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In a footnote of his brief, Potts wrote that, “discovery shows that Ms. Merchant was a pleasant well-intentioned person who lacked experience and knowledge relating to elections, depended on others who should have known better, and ultimately fell victim to their actions and inactions when they proved undependable or shady. There is a risk of election to an officer for which the legal requirements are few, but the practical requirements are many. Frankly, the county commissioners are at fault also. They could have but never had provided for the election administrator to have some basic skills and experience. Despite this, Ms. Merchant is still responsible. There was a time in our country when leaders applied the maxim that ‘the buck stops here’ and would accept responsibility for what happened within their jurisdictions. Sadly, that is uncommon in today’s world. Today the practice is usually to delay, deny, dissemble and make every effort to avoid responsibility. Thus far, Ms. Merchant has followed that latter approach.”

Potts wrote that because of mistakes by DeRoche, Merchant and Charla Merja, commissioner and candidate for the district board Steinke was able to “turn the bungling into boodling” by convincing the board in April 2023 not to accept late voter designations, which weren’t actually late.

Potts accused DeRoche and Charla Merja of “nefarious” actions requiring that property owners submit new designation forms.

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The Dennings and Merja argue that they weren’t able to vote for acreage they own jointly with others and were denied the right to do so by the district and the elections office.

Chuck Merja reviewed the list of electors and designated agents and determined that 3,422 votes were similarly denied.

Denning wrote in his declaration filed with the case that he explained to Merchant in April 2023 that he had a declaration on file from the years before the 2019 law change and that the county elections office was maintaining the designations on behalf of the irrigation district. He said he filed out a new designation form and hand delivered it to Merchant on April 14, 2023, before the statutory deadline, but the district board would not certify him as a voter for those acres.

Merja and Denning said they raised the issue to the district board before the election, but the board opted to ignore them and require the designations and only certify those submitted as of their April 13, 2023 meeting, according to court documents, though changes to the designations should have been permitted through April 19, 2023, according to court documents.

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The law required that the board certify the list of eligible voters to the election office at least 60 days before the election, which was March 3, 2023, and that they did not certify them until April 13, 2023.

The certified list included those whose were incomplete and some that included acres that weren’t irrigated within the district or weren’t in the district at all, according to the court documents.

Charla Merja submitted a list of eligible electors to the elections office on April 5, 2023, to which Merchant responded the next day, asking questions about the included acreage.

“I am trying to understand the process so I can get this right,” Merchant wrote, according to emails included in the court filings. “I wish I had paid more attention when I was out there, but my ex talked with the irrigation people so I didn’t know what was going on.”

She does not specify who she meant by “ex” according to the documents submitted to the court.

Merja and Denning asked the county commissioners last year not to certify the election results but they did so at the advice of the county attorney’s office.

In a follow-up email to Charla Merja, Merchant provided the certified election results, but “this, of course, doesn’t include those who couldn’t vote their acreage due to certification of designation issue,” which she hadn’t mentioned during the canvas, according to court documents.