The Resolution of Election Disputes: Legal Principles that Control Election Challenges 736 A.2d 104 753 250 A.2d Conn.1101 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 164 N.J. 468, A.2d 1101 (Cite as: 250 753 Conn. 241, 736 A.2d 104) (Cite as: 164 N.J. 468, 753 A.2d 1101) Supreme of Connecticut. FN2. UnderCourt N.J.S.A. 19:52-3, a voter may Steven BORTNER not exit the voting booth and then re-enter; v. his or her vote is cast once the voter exits, TOWN OF WOODBRIDGE et al. and cannot be amended. No. 16114. Under the heading "INSTRUCTIONS TO Argued 11, 1999. VOTERS" at the top ofJune the ballot, there were clear, Decided Aug. 17, 1999. legible step-by-step instructions **1108 on how to vote for the candidates printed on the ballot, illusUnsuccessful write-in diagrams candidate showing for elementary trated by two separate how to board of education brought action against town, repush the voting switch. No mention of how to cast gistrars of voters, and successful candidates, chala write-in vote was included in those instructions. lenging election results based on warning alleged voting maBy contrast, the personal choice was princhine malfunctions. The Superior Court, Judicial ted in difficult-to-read type and located in a corner District Newfive Haven, Pittman, J., and ordered new space oneofpoint centimeters wide two cenelection. Defendants appealed. The Supreme Court, timeters high on the far left side of the ballot. It Borden, heldtothat: trial court abused diswas bothJ.,easy miss(1)and difficult to read,itsand, cretion in refusing to open evidence to consider most important, instructed voters to seek assistance election and (2) who new from an records official offered outside by thedefendants, booth. Anyone election was warranted. followed thatnot direction would be barred from reentering the voting machine after having been given Reversed and remanded with direction. instructions, as was Ms. Freeman. Berdon, J., concurred and filed opinion. The warning also indicated to voters that they had to "touch personalWest choice" to register a write-in Headnotes vote. However, 8.1 no personal choice button or [1] Elections switch was on the machine. Rather, personal 144k8.1 Most Cited Cases choice could be entered only by means of true a comPurpose of election statutes is to ensure the and plicated series of *480 actions. Finally, the wordmost accurate count possible of votes for candidates ing on election. the machine ("Personal Choice Warning! in the Do not touch personal choice unless you intend to write in") likely led voters to be unduly cautious [2] Elections 227(8) about pressing choice apparatus 144k227(8) Most any Citedpersonal Cases without first consulting an official.no Overall, it When individual ballot with is questioned, voter is to was considerably on easier to voteconstruction, for candidates be disfranchised a doubtful and whose were printed on theof ballot opposed statutesnames tending to limit exercise ballotasshould be to write-in candidates, liberally construed in his regardless or her favor.of the voters' preferences. [3] Elections 298(1) As for the poster the Cases left wall of the voting ma144k298(1) Most on Cited chine, it laws provided morevest detailed instructions but Election generally primary responsibility omitted a criticalintent pieceand of information. poster for ascertaining will of voters The on election indicated to to castcourt's a write-in vote, ascope voter of must officials, that, subject appropriate repull a small lever and then pull the window slide; it did not state that both the lever and the slide had to be pulled at the same time. Unless there was sim260 Page 1 Page 7 view when officials' determination is challenged in a judicial proceeding. ultaneous action by the voter, the window would not slide open. There was a picture on the poster, [4] Elections but it also failed to227(1) indicate the need to simultan144k227(1) Most Cited eously work the levers, Cases and was, as the trial court No losing is entitled to the electoral equifound, "at candidate once confusing, ambiguous and incomvalent of a "mulligan," which is a free shot someplete." Thus, it is likely that voters pressed the times let awarded to then a golfer play lever, go, and triedintonontournament slide the window, when preceding shot was poorly played. only to find that the window would not budge. That could explain why eighty-three voters entered the [5] Elections 298(3) voting machine for a mayoral election but did not 144k298(3) Most Cited Cases cast a vote for mayor. It is also likely that voters (Formerly 144k227(1)) tried to open different windows after an unsuccessTo secure judicial order for new municipal election, ful first try, and then cast their write-in votes on the challenger is not required to establish that, but for first window that would open, even if it was not the irregularities that he has established as a factual proper window. matter, he would have prevailed in election; instead, defects court must there were Those maybe notpersuaded have beenthat so (1) troubling had substantial errors in rulings of election official or there been clear instructions prominently posted officials, or substantial mistakes in count of votes, outside the voting machines in the polling area or and (2) as result of those mistakes, relimodels to ademonstrate howerrors the or voting machine ability of result of election, as determined by elecworked. Unfortunately, no instructions were tion officials, seriously doubt. provided in the ispolling placeinother thanC.G.S.A. inside the§ 9-328. machines. Moreover, the sample ballots sent voting to voters prior to the election lacked clear informa[6] Elections 305(2) tion about how to cast a write-in vote. The sample 144k305(2) Most Cited Cases ballot looked substantially the same as the face of Although underlying facts are to be established by a the voting machine and thus raised the same issues preponderance of evidence and are subject on apwe have discussed in connection with the personal peal to the clearly erroneous standard, ultimate dechoice warning on the voting machine ballot. The termination of whether, based on underlying facts, a sample ballot is even more confusing because it new municipal election is called for, that is, whethdoes *481 not indicate that there are windows next er there were substantial violations of statute auto each office on which to cast write-in votes. On thorizing court to order new election that render rethe face of the sample, there is no space for a writeliability of result of election seriously in doubt, is a in vote to be placed, nor is there any indication that mixed question of fact and law that is subject to there is a small lever on the machine that must be plenary review on appeal. C.G.S.A. § 9-328; Pracpulled to release the windows. tice Book 1998, § 60-5. This case is readily distinguishable from other [7] Statutes 181(1) cases in which voters' failure to comply with specif361k181(1) Most Cited Cases ic procedural instructions invalidated their votes. See In re Municipal [7] Statutes 188 Election Held on May 10, 1994, 139 N.J. 553, 361k188 Most Cited 558, Cases656 A.2d 5 (1995); In re Keogh-Dwyer, 45 N.J. 117, 120, 211 A.2d 778 (1965). In those other cases, voters were clearly and unambiguously instructed to punch or mark the © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.