Bortner v. Town of Woodbridge 736 A.2d 104 736Conn. A.2d 241, 104 736 A.2d 104, 137 Ed. Law Rep. 1019 250 250 Conn. 736241, A.2d736 104,A.2d 137 104) Ed. Law Rep. 1019 (Cite as: 250241, Conn. (Cite as: 250 Conn. 241, 736 A.2d 104) CourtThe of Connecticut. taken outSupreme of service. court also found "as a Steven BORTNER fact that [this machine] had been out of paper since v. at least 8:30 a.m." TOWN OF WOODBRIDGE et al. On the basis of these specific findings, the trial No. 16114. court concluded "that there were mistakes in the June 11, 1999. count and thatArgued to the extent that election officials in Decidedruled Aug. throughout 17, 1999. the day that a de facto manner they did not need to continue to inspect the voting Unsuccessful write-in candidate for elementary machines in use in *253 order to ensure that there board of education brought action against rewere not problems with the mechanics, intown, particular gistrars of voters, and successful candidates, chalof the write-in votes, [there] were errors." The lenging election results that, based"[g]iven on alleged court also concluded thevoting close mavote, chine malfunctions. The Superior Court, Judicial the court [felt] it has really no mandate in this situDistrict of New Haven, J., ordered new ation other than to order aPittman, new election." election. Defendants appealed. The Supreme Court, Borden, held1999, that: the (1) defendants trial court abused On MayJ.,27, moved its to disopen cretion in refusing to open evidence to certain consider the evidence to permit them to introduce ofelection recordsofoffered by defendants, and (2)tonew ficial records the election that, according their election was not warranted. representations, contained an accurate count of the number of voters who had entered each voting maReversed withand direction. chine onand an remanded hourly basis, that would demonstrate conclusively that one of the trial court's findBerdon, J., concurred and filed opinion. ings, namely, that voting machine number 107017 had been out of West paper Headnotes since at least 8:30 a.m., was incorrect. attached copies of those [1] ElectionsThe defendants 8.1 records to their motion, represented that the records 144k8.1 Most Cited Cases constituted "business record evidence," Purpose of election statutes is to ensure theand trueasserand ted that the records had been omitted from the evidmost accurate count possible of votes for candidates by inadvertence or mistake, and that their abinence the election. sence would result in a serious danger of a miscarriage of justice. 227(8) The plaintiff opposed the motion, [2] Elections pointing outMost to the court that, among other reasons, 144k227(8) Cited Cases the defendants produced the records at trial When individual had ballot is questioned, no voter is toin to the on plaintiff's subpoena, but hadand not beresponse disfranchised a doubtful construction, offeredtending them. to The denied the defendants' statutes limitcourt exercise of ballot should be motion. construed in his or her favor. liberally The defendants raise [3] Elections 298(1)a number of claims on appeal. We Most conclude (1) the trial court abused 144k298(1) Citedthat: Cases its discretion in refusing open the evidence to Election laws generally vesttoprimary responsibility consider the election records byon theelection defendfor ascertaining intent and willoffered of voters ants; and (2) the not support officials, subject to record court's does appropriate scopethe of conreclusion that a new election was warranted under § 9- 328. Accordingly, we reverse the judgment of the trial court. Page 1 Page 10 view when officials' determination is challenged in a judicial proceeding. I Section 9-328 cannot be read in a vacuum. It must [4] beElections read against its227(1) fundamental governmental back144k227(1) Most Cited Casescounsels strongly that a ground. That background No losing candidate is entitled the electoral equi-its court should be very cautioustobefore exercising valent of a "mulligan," which is a free shot somepower under the *254 statute to vacate the results times to atogolfer nontournament play of an awarded election and order ainnew election. when preceding shot was poorly played. [1][2][3] First, under our democratic form of gov[5] Elections 298(3) ernment, an election is the paradigm of "the demo144k298(3) Most Cited cratic process designedCases to ascertain and implement 144k227(1)) the(Formerly will of the people." In re Election for Second To secure judicialDistrict, order for231 newConn. municipal Congressional 602, election, 625, 653 challenger is not required to establish that, but statfor A.2d 79 (1994). The purpose of the election irregularities that he has established as a factual utes "is to ensure the true and most accurate count matter, haveforprevailed in election; inpossibleheofwould the votes the candidates in the elecstead, persuaded (1) there were tion."court Id., atmust 633,be653 A.2d 79. that Those statutes rest substantial errors in rulings of election official on "the bedrock principle that the purpose of or the officials, or substantial of votes, voting process is to mistakes ascertain inthecount intent of the and (2) as Id., a result of 653 those errors relivoters." at 621, A.2d 79. orInmistakes, implementing ability of result of election, as determined by electhat process, moreover, when an individual ballot is tion officials,"no is seriously in be doubt. C.G.S.A. on § questioned, voter is to disfranchised 9-328. **112 a doubtful construction, and statutes tending to limit the exercise of the ballot should be liberally [6] Elections 305(2) construed in his [or her] favor." (Internal quotation 144k305(2) Most Cited Cases marks omitted.) Id., at 653, 653 A.2d 79. Our Although underlying facts are to be established by a election laws, moreover, generally vest the primary preponderance of evidence and are subject on apresponsibility for ascertaining that intent and will peal to the clearly erroneous standard, ultimate deon the election officials, subject, of course, to the termination of whether, based on underlying facts, a court's appropriate scope of review when the offinew municipal election is called for, that is, whethcials' determination is challenged in a judicial proer there were substantial violations of statute auceeding. See id., at 658, 653 A.2d 79. We look, thorizing court to order new election that render retherefore, first and foremost to the election officials liability of result of election seriously in doubt, is a to manage the election process so that the will of mixed question of fact and law that is subject to the people is carried out. plenary review on appeal. C.G.S.A. § 9-328; Practice Book 1998, § 60-5. Second, § 9-328 authorizes the one unelected branch of government, the judiciary, to dismantle [7] Statutes 181(1) the basic building block of the democratic process, 361k181(1) Most Cited Cases an election. Thus, "[t]he delicacy of judicial intrusion into the electoral process"; Lobsenz v. Dav[7] Statutes 188 idoff, 182 Conn. 111, 361k188 Most Cited Cases124, 438 A.2d 21 (1980) (Peters, J., dissenting); strongly suggests caution in undertaking such an intrusion. As we have indicated, therefore, § 9-328 provides for remedies 179 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.