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Rich County Attorney George W. Preston filed a lawsuit in Randolph's 1st District Court Monday rather than participate in a coin toss to decide whether he or write-in opponent George W. Bur-bidge II won the Nov. 8 election.

After the election, each candidate had 299 votes.Preston's suit asks that two issues be resolved.

"We first have to find out if write-ins are legal in retention elections and if they are, if each of these candidates meets residency requirements," he said.

Preston commutes to Rich County from neighboring Cache County but owns property in both counties.

Preston was the only candidate to file for office by the March deadline, and the county clerk placed his name on a separate part of the ballot giving voters a "yes" or "no" choice because he was unopposed.

One week before the election, Burbidge filed for the office as a write-in. With no time left to reprint the ballots, many voters were confused.

Some voted "yes" for Preston but also wrote in Burbidge's name.

"There were four votes that were clearly for me that weren't counted," Burbidge said.

One person penciled in his nickname, "Buzz," and another wrote his name in the slot meant for county assessor. The other two wrote in different first names but got his surname correct.

Preston concedes the law allows for a coin toss to settle ties in general elections - but he says the law isn't clear when it comes to retention election.

"Lt. Gov. Olene Walker told me it is her opinion that the Legislature didn't contemplate write-ins in retention elections. I think we need to clear this up before we go any further," Preston said.

Preston practices law in Logan in addition to being the part-time county attorney in Rich County. He owns property in Rich County and said he has voted there for the past 12 years.

Burbidge said he is in the process of moving his law office to Garden City and that makes him the only attorney living in Rich County.

"We know George Preston got 299 votes, but 299 people voted for me," Burbidge said. "I think those should be `no' votes for him."