Bortner v. Town of Woodbridge 736 A.2d 104 736 A.2d 104 250 Conn. 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 250 Conn. 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 (Cite as: 250 Conn. 241, 736 A.2d 104) (Cite as: 250 Conn. 241, 736 A.2d 104) This evidence simply to support a Supreme Courtisofinadequate Connecticut. finding that thisSteven machine "never continued to funcBORTNER tion adequately." Thev.evidence amounts to three complaints, twoOF of WOODBRIDGE which were determined by the TOWN et al. election officials atNo. the 16114. scene to have been unfounded, and a third complaint that, for unexplained June 11, reasons, was Argued not pursued, all1999. in a fourteen hour DecidedInAug. 17, 1999. period of voting. addition, the voting records indicate a total of 110 write-in votes cast for the Unsuccessful write-in candidate for elementary plaintiff on this machine, which is fully consistent board of education brought action against town, rewith the spectrum of such votes cast for the gistrars of voters, and successful candidates, chalplaintiff on all of the other machines. [FN30] It is lenging election results based on alleged voting mawholly improbable that a machine that never funcchine malfunctions. The Superior Court, Judicial tioned adequately with respect to recording write-in District of New Haven, Pittman, J., ordered new votes, nonetheless, would have registered a number election. Defendants appealed. The Supreme Court, of votes that was so close to the numbers registered Borden, J., held that: (1) trial court abused its disby the other machines that were functioning adcretion in refusing to open evidence to consider equately for all or most of the day. election records offered by defendants, and (2) new election was not warranted. FN30. Those records indicate the following votes for the plaintiff on the other votReversed and remanded with direction. ing machines: (1) 1 vote on voting machine numberand 143719, which was taken out Berdon, J., concurred filed opinion. of service at 6:50 a.m.; (2) 79 votes on voting machine number 106949, which was West Headnotes taken out8.1of service at 4:45 p.m.; (3) 90 [1] Elections votesCited on voting 144k8.1 Most Cases machine number 76263, wasstatutes in service 6:50the a.m. Purpose ofwhich election is tofrom ensure trueuntil and8 p.m.;count (4) possible 105 votes on voting machine most accurate of votes for candidates number 76265, which was in service all in the election. day; (5) 115 votes on voting machine num[2] Elections 227(8) ber 107017, which was taken out of service 144k227(8) at Most 6:30 Cited p.m.; Cases (6) 123 votes on voting maWhen individual ballot is161427, questioned, no was voterinis serto chine number which be disfranchised on a doubtful construction, and vice all day; (7) 112 votes on voting mastatutes tending limit exercise ballotwas should be chine to number 160117, ofwhich in serliberally construed in hisand or her vice all day; (8) favor. 137 votes on voting machine number 76264, which was in ser[3] Elections 298(1) vice all day. 144k298(1) Most Cited Cases Election laws generally vest primary *275 The evidence regarding voting responsibility machine numfor and willp.m., of voters on election berascertaining 106949 wasintent that at 4:45 its paper jammed officials, subject to out court's appropriateThere scope was of reand it was taken of service. no evidence of any malfunctioning of the write-in mechanism before that time. Although there was Page 1 Page 22 view when officials' determination is challenged in that when the write-in paper was removed a evidence judicial proceeding. from the machine at the end of the voting day it was [4] Elections 227(1) the evidence was also that partially torn vertically, 144k227(1) Most Cited Cases seventy-nine write-in votes had been recorded on No losing candidate is entitled to the electoral equithat machine throughout the day. Moreover, this valent of a "mulligan," which is a free shot somenumber of write-in votes was consistent with the times awarded to aongolfer in nontournament numbers recorded the other machines, givenplay that when precedingwas shotinwas poorly this machine service forplayed. only eleven of the fourteen voting hours. [5] Elections 298(3) 144k298(3) Most Cited Finally, the evidenceCases regarding voting machine (Formerly 144k227(1)) number 107017 was that at 6:30 p.m., in response To judicialits order for new municipalwas election, to secure a complaint, write-in mechanism found challenger not requiredproperly, to establish but then for not to beisfunctioning and that, it was irregularities that he has established as a factual taken out of service. Moreover, by that time 115 matter, would election; write-inhevotes had have been prevailed cast for theinplaintiff on inthis stead, court must be persuaded that (1) there were machine. substantial errors in rulings of election official or **123 There also wasmistakes evidenceinthat, prior to that officials, or substantial count of votes, time, three voters were unsuccessful, because of a and (2) as a result of those errors or mistakes, relimechanical malfunction, theirbywrite-in ability of result of election,inas casting determined elecvotesofficials, for the plaintiff on that Elizabeth tion is seriously in machine. doubt. C.G.S.A. § Phillips Marsh testified that at approximately 8:15 9-328. a.m., she lifted the slot cover and wrote the [6] Elections 305(2) plaintiff's name on metal, not paper. Jean Bortner, 144k305(2) Most Cited Cases that at approximately 9 the plaintiff's wife, testified Although underlying facts are cover to be established a a.m., she lifted the slot and wrotebythe preponderance of evidence and are subject on applaintiff's name on what appeared to be metal or peal the clearly erroneous ultimate clearto computer-type paper,standard, not white paper.determination of whether, based on underlying facts, a Michelle Greengarden testified that at approximnew municipal election is called for, that is, whethately 4 p.m., she lifted the slot cover and wrote the erplaintiff's there were substantial violations of statute auname on metal, not paper. Neither Marsh, thorizing to order new election thatreported render reBortner court nor Greengarden, however, her liability of result of election seriously in doubt, is a difficulty to any election official. mixed question of fact and law that is subject to The sum of thisonevidence, therefore,§was that Pracof the plenary review appeal. C.G.S.A. 9-328; total of nine voting machines in use during the electice Book 1998, § 60-5. tion, *276 three were taken out of service at some [7] Statutes 181(1) point, and one was questioned three times. Al361k181(1) Most Cited Cases though these facts, considered alone, might give rise to a conclusion that there were substantial mis[7] Statutes 188 takes in the count of the votes, that conclusion is 361k188 Most Cited Cases not justified when the facts are analyzed more closely. First, one of the three machines was taken out of 191 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.