LINCOLN — Nebraska legislative candidate Russ Barger asked a Lancaster County District judge on Tuesday to require the state to recount ballots by hand.

Barger, who lost by 223 votes to George Dungan in Legislative District 26, went to court after Secretary of State Bob Evnen denied his request for a hand recount. Evnen argued that state law requires election officials to handle recounts like elections: with paper ballots counted by machines.

Tuesday marked the latest round in a months-long fight in Nebraska over whether recounts of close elections should be handled by machine or people.

But Barger’s lawsuit may run aground on something simpler than whether Nebraska election law is ambiguous.

Lancaster County District Court Judge Kevin McManaman is considering a question about how the case was filed that could lead him to dismiss it.

Barger said that if the judge tosses his lawsuit on a technicality, he worries he won’t be able to refile the case and get it heard quickly enough to matter.

“Probably not,” he said. “I don’t think we have time.”

Jennifer Huxoll of the Attorney General’s Office filed a motion for the state arguing that McManaman couldn’t consider Barger’s filing because of a signature snafu.

One of Barger’s key filings was signed electronically but was not notarized, a step Huxoll said Nebraska Supreme Court rules require before a court can weigh in.

Barger’s attorney, David Begley, said he followed the rules regarding electronic submissions. He tried in court to submit a signed copy. Huxoll objected.

McManaman said he would take the state’s motion to dismiss on the technicality under advisement. A decision could come as early as today.

The judge let both lawyers argue the lawsuit’s broader question: whether state law requires Evnen to carry out the kind of recount sought by Barger, who lost by more than 1%.

Under state law, an automatic recount is triggered if the votes separating two candidates is less than 1%. State law also law requires that such a recount be carried out in the same manner as the election.

Nebraska law is not as specific regarding recounts for candidates who lose by more than 1%, Begley argued. He said different sections of state law and history hint at a preference toward hand recounts.

Huxoll argued that any recount method not specified in state election law reverts to the secretary of state’s discretion as the administrator of elections. Begley disagreed.

“If the Legislature wanted the same procedure used on a recount as during the election, it would’ve used the same language,” Begley said.

McManaman appeared to side with Huxoll, who argued that there is no explicit language detailing how those sorts of recounts should be handled.

“The court is right,” Huxoll said. “The law does not spell that out. Supervision is discretionary language.”

Lancaster County Election Commissioner Dave Shively sided with Evnen, saying the secretary of state has the administrative choice on how to handle recounts outside the 1% automatic trigger.

Barger would have to pay for any recount outside the automatic margin. The Secretary of State’s Office estimates a hand recount could cost $11,000. A machine recount would cost about $6,000.

Barger has said his campaign is trying to raise $25,000 to cover the recount costs and any legal fees.

Part of the Republican Party base now questions the use of voting machines since former President Donald Trump lost his 2020 race to President Joe Biden. The loss, however, was audited and verified in swing states.

About 25 GOP activists attended Barger’s hearing Tuesday, including several from the Nebraska Republican Party and at least one from the Nebraska Freedom Coalition. The state GOP had urged supporters to attend the hearing, posting on Facebook that the party supports the push for hand recounts. Evnen is a Republican as well.

Nebraska Republican Party national committeewoman Fanchon Blythe, who attended wearing an American flag shirt, said she was there to support Barger.

Election experts and independent auditors have found that machine counts tend to be more accurate than hand counts. But Begley’s brief pointed to a legislative race in Iowa that saw a six-vote lead for a Democrat turn into an 11-vote win by a Republican after a hand recount.

Recounts of state legislative races rarely move tallies by more than tens of votes, unless the districts are large, election observers said.

Dungan, Barger’s opponent, said in a statement last week that he has “complete faith in both our elections and the systems that we currently have in place to count ballots.” He said Barger, with his lawsuit, was helping to further election-related conspiracy theories.

Barger said after the hearing that he didn’t know whether a hand recount could change the outcome of his election.

“That’s why we’re doing this,” he said.

Barger declined to answer whether he believes there were problems with the vote.

“We just want the votes counted again,” he said. “We’re going to find out what the statute truly means.”

This story was originally published by Nebraska Examiner, an editorially independent newsroom providing a hard-hitting, daily flow of news. It is part of the national nonprofit States Newsroom. Find more at nebraskaexaminer.com.