In re McDonough 736 A.2d 104 816Conn. A.2d 241, 1022736 A.2d 104, 137 Ed. Law Rep. 1019 250 149 N.H. 105, 816 A.2d (Cite as: 250 Conn. 241, 1022 736 A.2d 104) (Cite as: 149 N.H. 105, 816 A.2d 1022) Supreme Court of Connecticut. thus be fairly and satisfactorily ascertained, the balSteven BORTNER lot cannot rightly be counted." Id. (quotation omitted); see In re Election v. of U.S. Representative, 231 TOWN WOODBRIDGE et al. should, Conn. 602, 653 OF A.2d 79, 92 (1994) ("ballots No. 16114. where reasonably possible, be read to effectuate the expressed intent of the voter, so as not to unreasonArguedhim Juneor11,her."). 1999. At oral arguably disenfranchise Decided Aug. 17, ment, counsel for both parties 1999. agreed this standard is consistent with New Hampshire election laws Unsuccessful write-in candidate for elementary and jurisprudence, and can be applied in this case. board of education brought action against town, registrars of voters, successful Our election laws and provide voters candidates, with severalchalways lenging election on alleged voting mato express theirresults intent.based See RSA 659:17 (1996). chine malfunctions. The Superior Court, Judicial The legislature directs voters to: "Vote for the canDistrict of your Newchoice Haven, J., by ordered new didate of forPittman, each office making the election. Defendants appealed. The Supreme Court, appropriate mark. Follow directions as to the numBorden, J., held that: court its disber of candidates to (1) be trial elected to abused each office." cretion in refusing to open evidence to consider RSA 659:17, I. The statutory scheme further election records offered by defendants, and (2) new provides: election not may warranted. II. Awas voter vote for a candidate in a state general election ... by making the appropriate Reversed and remanded with direction. mark for the name of each candidate for whom he wishesJ.,toconcurred vote. Ifand he filed desires to vote for a canBerdon, opinion. didate whose name is not printed on the ballot, he shall write in the name of the person for whom he West Headnotes to vote 8.1 in the space provided for that pur[1] desires Elections pose. Most Cited Cases 144k8.1 III. In state general the following inPurpose of aelection statuteselection, is to ensure the true and structions voters for straight ticket shall most accurate to count possible of votes for voting candidates be election. printed on the ballot: Make the appropriate in the mark for the political party of your choice if you [2] wish Elections 227(8) to vote for all candidates running in that 144k227(8) Most party. If youCited vote Cases a straight ticket, but wish to When individual ballot is questioned,candidates, no voter is you to vote for one or more individual be may disfranchised on a doubtful construction, and do so, and your vote for an individual canstatutes tending to limit exercise of ballot didate will override the straight partyshould vote be for liberally construed in his or her favor. that office. However, if you vote for one candidate for an office where more than one candidate [3] Elections 298(1) is to be elected, be sure to vote individually for 144k298(1) Most Cited Cases all candidates of your choice for that office, beElection laws generally vest primary responsibility cause your straight ticket vote will not be counted for ascertaining intent and will of voters on election for that office. officials, subject to court's appropriate scope of reIV. In a state general election, the following instructions to voters for split **1028 ticket voting shall be printed on the ballot: If you do not wish Page 1 Page 6 view when officials' determination is challenged in a judicial to voteproceeding. for all candidates running in the same party, make the appropriate mark opposite the [4] names Elections 227(1) of the candidates for whom you wish to 144k227(1) Most Cited Cases vote. No losing candidate RSA 659:17, II-IV. is entitled to the electoral equivalent of a "mulligan," which is a free shot sometimes awarded to a to golfer nontournament play [7][8][9] Pursuant this in statutory scheme, voters when shot was poorly played. may preceding vote for individual candidates, write in names of candidates, vote along straight party lines, *112 [5] 298(3) andElections vote along split party lines. None of these vot144k298(3) Most Cited Cases ing methods is required. Nor, as we read the per(Formerly 144k227(1)) missive statutory language, are these methods exTo secureofjudicial order for Cf. new Murchie, municipal76 election, clusive one another. N.H. at challenger is not required to establish that, but 104, 79 A. 901 (county election dispute decidedfor unirregularities he straight has established a factual der prior lawthat when ticket voteaswas exclusmatter, he would have on prevailed election; inive of any other mark ballot). inThus, if a voter stead, must be persuaded (1) there were makescourt an appropriate mark for that any candidate or ofsubstantial errors in rulings of election or fice in substantial compliance with the official above statofficials, or substantial mistakes in count of votes, ute, the vote should be counted. See id. A vote and (2) as result of those errors or reli-in should nota be counted, however, formistakes, a candidate ability of result of election, as determined by eleca race in which the voter clearly did not intend to tion is v.seriously in W.Va. doubt.475, C.G.S.A. § vote.officials, See State Kress, 142 96 S.E.2d 9-328. 166, 170 (1957). There is no provision in our laws requiring voters to vote for all offices in an elec[6] Elections 305(2) tion. See id. 144k305(2) Most Cited Cases Although facts are to be established by a [10][11]underlying We determine a voter's intent by giving preponderance of evidence and are subject on apweight to all marks placed on the ballot, regardless peal to the clearly ultimate de- a of the method byerroneous which thestandard, voter chose to cast termination of whether, based on underlying facts, vote. See Murchie, 76 N.H. at 107, 79 A. 901.a new municipal election for, thatSee is, whethMarks on a ballot may is notcalled be ignored. id. er there were substantial violations of statute authorizing court to new election that render re[12][13][14] In order summary, the principles guiding liability of result of election in doubt, a our inquiry in this case are seriously as follows: (1) we iswill mixed question of factbecause and law subject to not void an election of that mereisirregularities plenary review oninappeal. C.G.S.A. § 9-328; Prac-or or technicalities the form of a ballot, election tice Book § 60-5. vote; (2) 1998, we strive to enfranchise voters by giving effect to all marks on the ballot; and (3) we strive [7] to Statutes avoid diluting181(1) votes by counting as votes marks 361k181(1) Most Cited that were intended to Cases indicate the voter's intent to abstain. See Bennett v. Yoshina, 140 F.3d 1218, [7] Statutes 188 1226-27 (9th Cir.1998), cert. denied, 525 U.S. 361k188 Most Cited Cases 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). Our decision is not guided by party politics or a preference for a particular political candidate, but is guided by these neutral legal principles. 269 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.