The Resolution of Election Disputes: Legal Principles that Control Election Challenges
736 A.2d 104
700
1224
250A.2d
Conn.
241, 736 A.2d 104, 137 Ed. Law Rep. 1019
142
N.H.
288,
A.2d
1224
(Cite as: 250 700
Conn.
241,
736 A.2d 104)
(Cite as: 700 A.2d 1224)
Supreme
Courtvotes
of Connecticut.
were tallied,
the sticker
for Ball were not
BORTNER
counted.
The Steven
tally yielded
the following results: 190 votes for the v.plaintiff, 174 votes for
TOWN
WOODBRIDGE
et al.
Gehres, and
107 OF
handwritten
write-in
votes for
16114. 113 sticker votes
Ball. The moderator No.
disallowed
for Ball, and the plaintiff was declared the winner
of the selectmanArgued
race. June 11, 1999.
Decided Aug. 17, 1999.
Upon Ball's request for a recount, see RSA 669:30
Unsuccessful
write-in
candidate
elementary
(1996),
the defendant
Town
of Miltonfor
Board
of Reboard
of
education
brought
action
against
town,the
recount (board) met to decide whether to count
gistrars
of
voters,
and
successful
candidates,
chalsticker votes. By a three-to-two vote, the board delenging
results
based that
on alleged
voting exmacided
to election
count those
stickers
were placed
chine
malfunctions.
The
Superior
Court,
Judicial
actly in the write-in space for selectman, with an
District
Haven,orPittman,
J., ordered
new
"X,"
eitherofonNew
the sticker
handwritten,
appearing
election.
Defendants
appealed.
The
Supreme
Court,
in the proper place to the right of the candidate's
Borden,Following
J., held that:
(1) trial
court
its the
disname.
a recount,
Ball
wasabused
declared
cretion
in
refusing
to
open
evidence
to
consider
winner with a total of 215 votes. The plaintiff,
election
recordstotal
offered
by defendants,
and (2)
new
with
a recount
of 191
votes, appealed
to the
electioncourt.
was notSee
warranted.
superior
RSA 669:35 (1996).
Reversed
and remanded
direction.
After
ordering
the partieswith
to submit
statements of
fact and memoranda of law, the superior court upBerdon, J., concurred and filed opinion.
held the board's decision. The court found that the
use of stickers wasWest
not in
accordance with the exHeadnotes
ception
provided in8.1
RSA 659:65, II(b). Nonethe[1] Elections
less,
the
court
found
that the voters who placed
144k8.1 Most Cited Cases
stickers
in
the
write-in
spaces
Purpose of election statutes
is intended
to ensure to
thevote
true for
and
Ball,
and
that
invalidating
the
sticker
votes
as demost accurate count possible of votes for candidates
fective
under the statute would disenfranchise those
in the election.
voters. See N.H. CONST. pt. I, art. 11. In light
of[2]these
findings, the
court ruled that RSA 659:65,
Elections
227(8)
II(b)
is only Most
*1226Cited
"directory
144k227(8)
Cases in nature" in cases
"where
clear intent
voters is evident,"
When the
individual
ballotofisthe
questioned,
no voter and
is to
that,
accordingly, the
intentconstruction,
to vote for Ball
be disfranchised
on voters'
a doubtful
and
prevailed
over thetostatute.
statutes tending
limit exercise of ballot should be
liberally construed in his or her favor.
The plaintiff appeals, arguing that the superior
court
erred by ruling
that the statute is "directory"
[3] Elections
298(1)
in144k298(1)
nature rather
than
mandatory,
Most
Cited
Cases and that "the clear
intent
of the
voters"
is sufficient
to override
the exElection
laws
generally
vest primary
responsibility
press
prohibitory intent
language
theofstatute.
acfor ascertaining
and of
will
voters onThe
election
tual
vote count
is not
in dispute;
the parties
officials,
subject
to court's
appropriate
scopeagree
of rethat if the sticker votes are counted, Ball's election
would stand, but if the sticker votes are invalidated
as defective, the plaintiff would have a plurality of
314
Page 1
Page 3
view when officials' determination is challenged in
a judicial proceeding.
votes.
[4] Elections
227(1) "A ballot shall be reRSA
659:65, II provides:
144k227(1)
Most Cited
Cases
garded
as defective
in part
and that part shall not be
No losingif candidate
is ballot
entitledhas
to the
electoral
tabulated
... (b) The
attached
to itequian
valent ofslip,
a "mulligan,"
is a prepared
free shotinsomeadhesive
sticker, or which
paster not
actimes awarded
to a656:21
golferininthenontournament
cordance
with RSA
space for any play
ofwhen
shot
poorly
played.
fice,
butpreceding
the rest of
thewas
ballot
admits
to counting...."
RSA 656:21 (1996), in turn, authorizes the use of
[5] Elections
stickers
by election 298(3)
officials, in the event of a can144k298(3)
Cited Cases after the ballot has
didate's deathMost
or disqualification
been(Formerly
printed, to144k227(1))
affix the name of a substitute canTo secure
municipal The
election,
didate
to thejudicial
ballotsorder
priorfor
to new
the election.
suchallenger
is
not
required
to
establish
that,
but
for
perior court found that the stickers distributed by
irregularities
that
he
has
established
as
a
factual
Ball were not prepared in accordance with RSA
matter, he would have prevailed in election; in656:21.
stead, court must be persuaded that (1) there were
substantial
errors in rulings
[1]
As a preliminary
matter,ofweelection
addressofficial
the de-or
officials, suggestion
or substantial
in count
of votes,
fendants'
thatmistakes
RSA 659:65,
II(b)
does
andapply
(2) astoa result
those errors
mistakes,
relinot
town of
elections.
RSAor669:25
(1996)
ability ofthat
result
of chapters
election, 658
as determined
by elecprovides
RSA
and 659 apply
in
tion officials,
seriously
doubt. C.G.S.A.
towns
using the isofficial
ballotin system.
Both the§
9-328.and the superior court assumed, in rendering
board
their respective decisions, that the statute applied.
[6] Elections
The
defendants do 305(2)
not contend that the town has
144k305(2)
Most
Cited
not adopted the officialCases
ballot system, see RSA
Although
are to
be established
by a
669:25,
andunderlying
we note facts
that the
election
procedures
preponderance
of
evidence
and
are
subject
on
apused in this case were inconsistent with the unoffipeal ballot
to the clearly
standard,
ultimate
decial
system,erroneous
cf. RSA
669:55
(1996)
termination
of
whether,
based
on
underlying
facts,
(providing no names of candidates shall be printed a
new
municipal
election On
is called
for,the
that
is, whethon
unofficial
ballots).
appeal,
defendants
er
there
were
substantial
violations
of
statute
aucontend that applying RSA 659:65, II(b) to town
thorizingwould
court to
orderannew
election thatwith
render
reelections
create
inconsistency
RSA
liability
of
result
of
election
seriously
in
doubt,
is
669:22 (1996), which permits a town clerk to re- a
mixeda question
of candidate's
fact and law
thatfrom
is subject
move
withdrawn
name
printedto
plenary
review
on appeal.
C.G.S.A.
9-328;
Pracballots
using
pasters.
They argue
that §RSA
659:65,
tice
Book
1998,
§
60-5.
II(b) would render the ballots prepared pursuant to
669:22 defective because they were not prepared in
[7] Statutes
181(1)
accordance with 659:21, the only enumerated ex361k181(1) Most Cited Cases
ception to 659:65, II(b).
[7] Statutes
188
We perceive no inconsistency in applying RSA
361k188 Most Cited Cases
659:65, II(b) to town elections. RSA 669:22 and
RSA 656:21 allow the use of stickers or pasters in
essentially the same circumstances: in the event of
the disqualification of a candidate due to "age,
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
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