The Resolution of Election Disputes: Legal Principles that Control Election Challenges 736 A.2d 104 816 A.2d 1022 250 Conn. 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 149 N.H. 105, 816 A.2d 1022 (Cite as: 250 Conn. 241, 736 A.2d 104) (Cite as: 149 N.H. 105, 816 A.2d 1022) cf. State v. Supreme Lambert, Court 147 N.H. 295, 296, 787 A.2d of Connecticut. 175 (2001) (explaining exercise of Steven "unsustainable BORTNER discretion" standard). This v. standard of review is "narrow and highly In re Ryan TOWN OFdeferential." WOODBRIDGE et al. G., 142 N.H. 643, 645, 707 A.2d 134 (1998). Unlike the No. 16114. majority, we believe that, in light of the instructions June 11,and 1999. given to voters Argued on the ballots applicable elecDecided Aug. 17, 1999. tion laws, the BLC's decision was both reasonable and sustainable on the record with respect to all of Unsuccessful write-in candidate for elementary the challenged ballots. board of education brought action against town, registrars of voters, and BLC's successful candidates, The touchstone of the inquiry is voter chalinlenging election based on by alleged voting the matent. Voter intentresults is determined examining chine malfunctions. The statutory Superior provisions Court, Judicial ballots, in light of relevant and District of New Haven, Pittman, J., ordered new the instructions to the voters. See Murchie v. Clifelection. Defendants appealed. The Supreme Court, ford, 76 N.H. 99, 104-05, 79 A. 901 (1911). Borden, J., held that: (1) trial court abused its disThe relevant statutes and ballotevidence instructions permit cretion in refusing to open to consider a election voter both to vote straight ticket and to records offered by defendants, andvote (2) for new individual candidates. The relevant portion of the election was not warranted. straight ticket voting instruction reads as follows: Reversed and remanded with...direction. **1031 Complete the oval opposite the political party of your choice ... if you wish to vote for Berdon, J., concurred and filed opinion. all candidates running in that party. If you vote a straight ticket, West but wish to vote for one or more Headnotes individual candidates, you may do so, and your [1] Elections 8.1 vote forMost an individual candidate will override the 144k8.1 Cited Cases straight party vote for that Purpose of election statutes office. is to ensure the true and This is possible based of upon 659:17 most instruction accurate count votesRSA for candidates (1996). Under RSA 659:17, a voter may: (1) cast in the election. votes for individual candidates only, see RSA 659:17, II and IV; 227(8) (2) cast a straight ticket vote [2] Elections only, see RSA 659:17, III;Cases or (3) cast a straight-tick144k227(8) Most Cited etWhen vote individual and also vote ballotforis individual questioned,candidates no voter isofto the or of a different party, seeconstruction, id. be same disfranchised on a doubtful and statutes tending to limit exercise of ballot should be *116 Theconstrued only marks challenged ballots liberally in hison or the her favor. were the mark in the straight ticket box, a mark for one more individual candidates, and on some but [3] or Elections 298(1) not all ballots,Most a mark on Cases one or more constitutional 144k298(1) Cited questions. None of these vest marks was faint, crossedElection laws generally primary responsibility out, or erased, indicating that the voter no longer for ascertaining intent and will of voters on election intended See Broderick v. Hunt, 77scope N.H. of 139, officials,it.subject to court's appropriate re141, 89 A. 302 (1913) (faint, nearly wholly erased cross opposite plaintiff's name and heavy cross opposite challenger's name indicates vote for chal- Page 1 Page 9 view when officials' determination is challenged in lenger); McIntyre v. Wick, 558 N.W.2d 347, 361 a judicial proceeding. (S.D.1996) (erasure indicates voter's intent to re[4] Elections move original mark).227(1) 144k227(1) Most Cited Cases InNolight of candidate these marks and thetorelevant ballotequiinlosing is entitled the electoral structions statutes, thewhich BLC is determined thatsomethe valent of and a "mulligan," a free shot voters their straight vote on play the times intended awarded to a golfer in ticket nontournament challenged ballotsshot to count in theplayed. skipped race for when preceding was poorly Hillsborough County Attorney. We would find no [5] Elections 298(3)exercise of its discretion legal error in the BLC's 144k298(3) Most Cited and hold that its ruling Cases was both reasonable and (Formerly sustainable on 144k227(1)) the record with respect to all of the To secure ballots. judicial order for new municipal election, challenged challenger is not required to establish that, but for We believe thatthat the he majority errs by casting irregularities has established as a doubt factual upon the he BLC's uniform of ballot interpretamatter, would have rule prevailed in election; intion. BLC's uniform rule, voting stead,Under court the must be persuaded that merely (1) there were for individual candidates is insufficient to over-or substantial errors in rulings of election official come the presumption a voterinintended or officials, or substantialthat mistakes count ofhis votes, her straight ticket vote to count in skipped races. and (2) as a result of those errors or mistakes, reliWhile "in a future case," this abilitysuggesting of result ofthat election, as determined by rule elecmight be unlawful, the majority fails toC.G.S.A. give the§ tion officials, is seriously in doubt. BLC guidance as to when or why this might be the 9-328. case. This omission can only worsen the confusion [6] Elections surrounding straight305(2) ticket balloting. 144k305(2) Most Cited Cases The BLC's underlying uniform rule ofare ballot Although facts to beinterpretation established byis a consistent with our case law.andIt are seeks to give preponderance of evidence subject on efapfect to all of the markings on a ballot, see Murchie, peal to the clearly erroneous standard, ultimate de76 N.H. at 107, 79 A. 901, andon adheres to ourfacts, gen- a termination of whether, based underlying eral of interpreting ballotsfor, liberally ennewpolicy municipal election is called that is, to whethfranchise see Opinion of the Justices, er there voters, were substantial violations of statute114 auN.H. 711, court 713, 327 A.2dnew 713election (1974). that The BLC's thorizing to order render rerule also comports with the ballot instructions given liability of result of election seriously in doubt, is a tomixed voters.question of fact and law that is subject to plenary review on appeal. C.G.S.A. § 9-328; PracMoreover, uniform rule of ballot interprettice Book having 1998, §a60-5. ation to determine voter intent "is practicable and ... necessary." Gore, 531 U.S. 98, 106, 121 [7] StatutesBush v. 181(1) S.Ct. 525, 148Most L.Ed.2d (2000). As the United 361k181(1) Cited388 Cases States Supreme Court has explained, the use of uni[7] Statutes 188 voter intent is particularly form rules to determine 361k188 Most Cited Cases necessary because "the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper.... The factfinder confronts a 272 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.