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 1022A.2d 104) (Cite as: 250 Conn. 241, 736 (Cite as: 149 N.H. 105, 816 A.2d 1022) Court Connecticut. are notSupreme printed on the of ballot, write in the names on the blank Steven lines forBORTNER write-in votes and fill in the v. oval. TOWN OF WOODBRIDGE et al. See RSA 659:17 (1996). Each party is identified No. 16114. on the ballot by a symbol, which may be marked to allow straight ticket voting. Each candidate is then Juneby11, identified on Argued the ballot a 1999. square for the desigDecided Aug. 17, 1999. designation. nated office, with lines for party See RSA 656:5-:12. Finally, each constitutional Unsuccessful write-in candidate for elementary question is identified by text, with an opportunity board of education brought action against town, refor the voter to vote "yes" or "no" by filling in the gistrars of voters, and successful candidates, chalappropriate oval or arrow. See RSA 656:13. lenging election results based on alleged voting machine The Superior Court, Judicial At themalfunctions. hearing, the secretary of state testified about District of New Haven, Pittman, J., ordered new election voting procedures, ballot types and ballot election. appealed. The Supreme Court, languageDefendants used in New Hampshire, and explained Borden, held that:voter (1) trial its dishow he J., determines intentcourt whenabused conducting recretion in refusing to open evidence to consider counts of contested elections. He testified that it election offered by defendants, and (2)ofnew often isrecords difficult to determine the intent the election was not warranted. voter. If the voter has marked the "straight ticket" oval on the ballot, the secretary of state counts any Reversed and remanded with direction. "skipped race" as a vote for the straight ticket party candidate. See RSA 659:66 (1996) (Counting Berdon, J., concurred and filed opinion. Straight Party Vote); RSA 659:17, III (1996) (Instructions to Voters for Straight Ticket Voting). West Headnotes The secretary of state [1] Elections 8.1 explained that he applies this rule to Most all ballots with both "skipped races" and 144k8.1 Cited Cases straightofticket votes. Purpose election statutes is to ensure the true and most accurate count possible of votes for candidates Lee Farrall, Ph.D., a linguistic psycholoinMelissa the election. gist, testified about the confusing nature of the voter instructions227(8) on New Hampshire ballots. In [2] Elections her opinion, theCited voterCases instructions require at least 144k227(8) Most three individual years of college to questioned, understand. noFinally, When ballot is voter isPaul to testified about the summaries and and beMcDonough disfranchised on a doubtful construction, charts tending he made to show the of significance of be the statutes to limit exercise ballot should marks cast on eachinchallenged ballot. liberally construed his or her favor. McDonough [3] Elections challenged 298(1) all ballots where the voter: (1) filled inMost the Cited appropriate 144k298(1) Cases mark to vote a straight ticket Republican ballot; and (2) made appropriate Election laws generally vest primary responsibility marks to vote intent for individual Refor ascertaining and will candidates, of voters oneither election publicansubject or Democrat; (3) did not make any officials, to court'sbut appropriate scope of remark for candidates in the county attorney race. McDonough argued that the secretary of state erro- Page 1 Page 4 view when officials' determination is challenged in a neously judicial proceeding. credited these ballots to Coughlin. He asserted that the challenged ballots with individual [4] Elections 227(1) but a "skipped vote" for the votes for some offices, 144k227(1) Most Cited Cases county attorney's office, rebutted the presumption No losing candidate is entitled to the electoral equi-in that the voter intended to vote a straight ticket valent of a "mulligan," which is a free shot somethat race. He argued, therefore, that the ballots times awarded to a golfer in the nontournament should not be counted. After hearing, the play BLC, when preceding shot was poorly played. in a two-to-one decision, acknowledged the evidence showed the voter instructions on the ballot are [5] Elections 298(3) difficult to understand, but upheld the secretary of 144k298(3) Most Cited Cases state's certification of Coughlin as the winner of the (Formerly 144k227(1)) race. To secure judicial order for new municipal election, challenger not required to establish that, for *109 Theis BLC found that "there was notbut enough irregularities that he has established as a factual evidence presented to overcome **1026 the prematter, he that wouldthehave prevailed in election; insumption voter, by marking the straight stead, persuaded there were ticketcourt partymust box,beintended to that vote(1)straight party substantial errors in rulings of election official throughout the ballot despite having also voted or for officials, or races." substantial mistakes in count that, of votes, individual The BLC explained in its and (2) whenever as a resulta of those ticket errors vote or mistakes, view, straight is cast, itrelimay ability of result of election, as determined elec"only be overridden by an actual additionalbyvote for tion officials, candidate. is seriously Ifina race doubt. C.G.S.A. § an individual is left blank, but 9-328. a straight ticket box has been marked, the straight ticket will trump." The dissenting member of the [6] Elections 305(2) BLC opined that the majority applied an improper 144k305(2) Most Cited Cases presumption to determine voter intent on the Although underlying facts are to be established by a "skipped race" ballots, which was contrary to its preponderance of evidence and are subject on aplegal duty on an appeal from a recount, and repeal to the clearly erroneous standard, ultimate dequired a new election to be held in the race for termination of whether, based on underlying facts, a Hillsborough County Attorney. new municipal election is called for, that is, whetherMcDonough there were appeals substantial of statute authe violations BLC's decision and seeks thorizing to ordertonew election that from render rea writ ofcourt prohibition enjoin the BLC countliability of result of election seriously in doubt, is a ing such "skipped race" ballots in violation of the mixed question of fact and law that is subject to New Hampshire Constitution. Alternatively, he replenary review § 9-328; Pracquests the courtontoappeal. order aC.G.S.A. new election. tice Book 1998, § 60-5. II. Preliminary Matters [7] Statutes 181(1) 361k181(1) Most Cited Cases challenge to our jurisWe first address Coughlin's diction over this case and the parties' disagreement [7] Statutes 188 standard of review. about the appropriate 361k188 Most Cited Cases [1][2][3] Coughlin argues that we lack jurisdiction over this appeal because RSA 665:14 (1996) does not provide an "express statutory right of appeal to 267 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.