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)
Supreme
Court
oflegal
Connecticut.
the expert's
testimony
was
error.
Steven BORTNER
*114 We also find no merit
v. to McDonough's claim
that missing
statutory
language in the
instructions
TOWN
OF WOODBRIDGE
et al.
regarding voting inNo.
multiple
candidate
races con16114.
fused the voters with respect to their straight ticket
Arguedlanguage
June 11, 1999.
vote. The missing
is a technical irreguDecided
17, 1999.
larity that should
not Aug.
invalidate
a vote. See Keene
v. Gerry's Cash Mkt., Inc., 113 N.H. 165, 167-68,
Unsuccessful
for McDonough
elementary
304 A.2d 873write-in
(1973).candidate
Moreover,
board
of
education
brought
action
against
rechallenged no errors in the results of thetown,
multiple
gistrars
of
voters,
and
successful
candidates,
chalcandidate races and there is no evidence that the
lenging
results
on alleged
ma-of
missingelection
language
had based
any effect
on the voting
outcome
chine
malfunctions.
The
Superior
Court,
Judicial
this election. See id. at 167, 304 A.2d 873.
District of New Haven, Pittman, J., ordered new
election.
Defendants
appealed.
Theexpressed
Supreme by
Court,
We share
the concerns,
however,
both
Borden,
heldthethat:
(1) trial
abused
disthe BLCJ.,and
secretary
of court
state that
the its
instruccretion
in refusing
to open
evidence
to consider
tions for
straight ticket
voting
required
by RSA
election
by of
defendants,
and (2) to
new
659:17,records
III are offered
"a source
great confusion
the
election
was
not Hampshire."
warranted.
voters of
New
We additionally note
the straight ticket voting instructions and procedReversed
remanded
with
ures haveand
been
a source
ofdirection.
confusion under prior
election laws. See Murchie, 76 N.H. at 107, 79 A.
Berdon, J., concurred and filed opinion.
901.
West Headnotes
We are troubled also that the ballots do not instruct
[1] Elections
8.1
voters clearly and unambiguously about the circum144k8.1 Most Cited Cases
stances under which their votes will not count.
Purpose of election statutes is to ensure the true and
There are no instructions that explain when a
most accurate count possible of votes for candidates
skipped **1030 race will not be counted for any
in the election.
candidate. Having these kinds of instructions may
avoid
future disputes
such as this one.
[2]
Elections
227(8)
144k227(8) Most Cited Cases
[17][18] Having held that the BLC did not err with
When individual ballot is questioned, no voter is to
respect to 172 of the 269 challenged ballots, we
be disfranchised on a doubtful construction, and
deny McDonough's requests for a writ of prohibistatutes tending to limit exercise of ballot should be
tion and a new election. A writ of prohibition is an
liberally construed in his or her favor.
extraordinary writ used to prevent an inferior
tribunal
or agency298(1)
from improperly exercising jur[3]
Elections
isdiction
not
granted.
See Wyman v. Durkin, 114
144k298(1) Most Cited Cases
N.H.
781,
783,
330
A.2d
772
(1974).responsibility
This writ is
Election laws generally vest
primary
granted
with extreme
caution,
andvoters
then,on
"only
when
for
ascertaining
intent and
will of
election
the
right
to
relief
is
clear."
Durkin
v.
Hillsborough
officials, subject to court's appropriate scope of reCounty Super. Ct., 114 N.H. 788, 789, 330 A.2d
777 (1974). In this case, McDonough's right to relief is not clear.
Page 1
Page 8
view when officials' determination is challenged in
a judicial
[19] To proceeding.
set aside an election, a party "must prove
either fraud which leaves the intent of the voters in
[4]
Elections
227(1)
doubt
or irregularities
in the conduct of the election
144k227(1)
Most
Cited
of such a nature as to Cases
affect the result." Appeal of
No
losing139
candidate
is entitled
theA.2d
electoral
equiSoucy,
N.H. 110,
117, to
649
60 (1994)
valent
of
a
"mulligan,"
which
is
a
free
shot
some(quotation and brackets omitted). In this case, Mctimes
awarded
to aalleged
golfer or
in proved
nontournament
play
Donough
has not
fraud, and
alwhen
preceding
shot
was
poorly
played.
though he asserts "irregularities," as discussed,
these "irregularities" did not affect the result of the
[5] Elections
298(3)
election.
144k298(3) Most Cited Cases
(Formerly 144k227(1))
Accordingly,
we vacate our injunction preventing
To
secure judicial
order forthe
new
municipal
election,
Coughlin
from assuming
office
of Hillsborough
challenger
is
not
required
to
establish
that,
butasfor
County Attorney and affirm his certification
the
irregularities
that
he
has
established
as
a
factual
winner in this election for Hillsborough County
Atmatter,
torney. he would have prevailed in election; instead, court must be persuaded that (1) there were
substantial
Affirmed. errors in rulings of election official or
officials, or substantial mistakes in count of votes,
J., concurred;
FAUVER,
J., superior
andDUGGAN,
(2) as a result
of those errors
or mistakes,
relicourt
justice,
specially
assigned
under
RSA
ability of result of election, as determined by 490:3,
elecconcurred;
MCGUIRE
and ARNOLD,
JJ., *115 sution
officials,
is seriously
in doubt. C.G.S.A.
§
perior
court
justices,
specially
assigned
under
RSA
9-328.
490:3, concurred specially.
[6] Elections
305(2)
MCGUIRE
and
ARNOLD,
144k305(2) Most Cited
Cases JJ., concurring specially.
Although underlying facts are to be established by a
preponderance of evidence and are subject on apAlthough we concur in the result, we would uphold
peal to the clearly erroneous standard, ultimate dethe decision of the New Hampshire Ballot Law
termination of whether, based on underlying facts, a
Commission (BLC) with respect to all 269 connew municipal election is called for, that is, whethtested ballots. We agree with the majority, the
er there were substantial violations of statute auBLC and the secretary of state that straight ticket
thorizing court to order new election that render reballoting has led to voter confusion. We believe,
liability of result of election seriously in doubt, is a
however, that the majority erroneously questions
mixed question of fact and law that is subject to
the BLC's uniform rule of straight ticket ballot inplenary review on appeal. C.G.S.A. § 9-328; Practerpretation and exacerbates the confusion surtice Book 1998, § 60-5.
rounding straight ticket balloting.
[7] Statutes
181(1)
The issue before us is whether the decision of the
361k181(1) Most Cited Cases
BLC was illegal with respect to jurisdiction, authorityStatutes
or observance
of the law, by arriving at a con[7]
188
clusion
that
could
not legally or reasonably be
361k188 Most Cited Cases
made, or whether its exercise of discretion was unsustainable, arbitrary or capricious. Petition of Herron, 141 N.H. 245, 246-47, 679 A.2d 603 (1996);
271
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