Chapter 2 Mr. Mirlisena probably could have won his lawsuit if he would have put into the record evidence that more than 62 specific eligible registered voters were unable to vote. He would have been assured of winning if he had also proved that those voters would have voted for him (unless Ms. Fellerhoff provided evidence of registered voters who would have voted for her but were not allowed to do so). Mr. Mirlisena also could have won his lawsuit if he could have put into the record evidence showing that more than 62 specific ballots were cast illegally for Ms. Fellerhoff or evidence that irregularities were so widespread that the voters’ will was impossible to discern. The violations would have materially affected the election results, and the evidence would have overcome the assumption that the election results should stand. By way of contrast, the kind of proof that Mr. Mirlisena needed to win was proffered by the plaintiff in Valence v. Rosiere, 675 So.2d 1138 (La. Ct. App. 1996), a case that was discussed earlier in Chapters 1 and 2. Andy Valence had lost by 17 votes to Robert Rosiere for the office of mayor of Grand Isle, Louisiana. Mr. Valence sufficiently identified 20 votes that he claimed were illegal. The case had been dismissed by the trial court on the ground that Mr. Valence filed his lawsuit too late under the statute that governed these kinds of filings. The Louisiana Court of Appeal reversed that decision and sent the case back to the trial court because Mr. Valence had shown due diligence in filing his lawsuit as soon as he found out the facts that showed Mr. Rosiere’s victory was based on fraudulent ballots. The court of appeal in Valence did not apply the kind of serial assumptions that were denigrated in Mirlisena. Instead, the court of appeal made one assumption—that Mr. Valence’s allegations were true—in order to determine whether Mr. Valence should be given the opportunity to prove the truth of the allegations. If the evidence that Mr. Valence later put forward at the trial on the merits of his claims turned out to be based on the same kinds of assumptions that were put forward by Mr. Mirlisena, Mr. Valence’s claims would have been destined to meet the same fate as did Mr. Mirlisena’s. Nor were assumptions accepted as a sufficient basis to prove that irregularities occurred in voting machines in Bortner v. Town of Woodbridge, which was discussed earlier in this chapter. Mr. Bortner, a write-in candidate who had come in fifth in a May 3, 1999 race for four board of education seats, claimed that he would have gotten many more votes, enough, he said, so that the result of the election likely would have been different if the paper rolls in the voting machines had advanced properly and otherwise allowed people to write in Mr. Bortner’s name. The Connecticut Supreme Court concluded there was no basis for making the inference that because some voting machines malfunctioned, there also were malfunctions in other machines that were used during the election. A court did, however, draw inferences from the facts in In re Gray-Sadler, which also was discussed earlier in this chapter, where Kati Gray-Sadler challenged the refusal to count 64 write-in ballots when she lost the election for Mayor of Chesilhurst Borough by 20 votes, 172 to 152. John Sturgis and Edward Geiger, who also were write-in candidates, ran for seats on the borough council and lost the election by 31 and 30 votes, respectively. The New Jersey Supreme Court determined that there were enough write-in ballots that, had they been counted, they would have made Ms. Gray-Sadler the winner in the mayoral race. The same was not true, however, for Mr. Sturgis and Mr. Geiger. The irregularities claimed by them could not have changed the result of the election even if they proved that the irregularities happened. Yet the supreme court concluded that they likely had been deprived of other, additional votes that they should have had. 43