Chapter 2
new election, to establish that, but for the irregularities that he has established as a factual matter, he
would have prevailed in the election. We conclude instead that, in order for a court to overturn the
results of an election and order a new election…the court must be persuaded that: (1) there were
substantial violations of the requirements of the statute…and (2) as a result of those violations,
the reliability of the result of the election is seriously in doubt.
Steven Bortner tried to meet this burden of proof. He had come in fifth in a race for four board of education seats on May 3, 1999. He was the only write-in candidate (the names of the other four candidates
were printed on the ballot). Mr. Bortner got 56 fewer votes than the fourth-place finisher, and claimed that
he would have gotten many more votes, enough, he said, so that there was “a substantial likelihood that the
result of the election would have been different,” if the mechanism for people to write in votes had worked
properly and allowed people to write in Mr. Bortner’s name. There were paper rolls inside the voting machines on which voters were to write the names of candidates. The paper roll was accessible through a little
window on the front of the voting machines that voters had to open; they then slid back a plastic cover
before being able to write a candidate’s name. The paper advanced for each new write-in vote.
Mr. Bortner focused on four voting machines, claiming that one had run out of paper, another had had
a paper jam, in another the write-in mechanism had malfunctioned, and the fourth had not contained
any paper at all. He also said that problems with these particular machines were brought to the attention
of polling place officials, but that they did not inspect the machines throughout the day to be sure that
the machines were problem-free. The trial court agreed with Mr. Bortner and ordered a new election to
be conducted.
On appeal, the Connecticut Supreme Court spent a great deal of time discussing the reasons underlying
the need to prove that claimed irregularities must change the result of the election in order to require a
new election be held. For example, the supreme court said that
[A]n election is the paradigm of “the democratic process designed to ascertain and implement
the will of the people.”… “[T]he purpose of the voting process is to ascertain the intent of the
voters.”…[W]hen an individual ballot is question, “no voter is to be disfranchised on a doubtful
construction, and statutes tending to limit the exercise of the ballot should be liberally construed
in his [or her] favor.”
At 111-112 (internal citations omitted).
Much more discussion to the same effect led up to an examination of the facts that showed that some of
the defects found by the trial court had occurred, some had not, and the election officials had paid attention to the malfunctions that occurred. When one machine jammed, it was taken out of service; there
was no evidence that it had jammed earlier than that. Another machine was taken out of service when it
was reported that it had malfunctioned, but by that time it had properly recorded 115 write-in votes for
Mr. Bortner. Another machine was taken out of service less than an hour after the polls opened, having
malfunctioned so that two write-in votes were lost. The fourth machine was checked by election officials
at least three times during the afternoon and the write-in mechanism was found to be working properly
each time.
On balance, the supreme court concluded,
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