In re McDonough
736 A.2d 104
816Conn.
A.2d 241,
1022736 A.2d 104, 137 Ed. Law Rep. 1019
250
149
N.H.
105,
816 A.2d
(Cite as: 250 Conn.
241, 1022
736 A.2d 104)
(Cite as: 149 N.H. 105, 816 A.2d 1022)
Supreme
Court of Connecticut.
thus be fairly
and satisfactorily
ascertained, the balSteven
BORTNER
lot cannot rightly
be counted."
Id. (quotation omitted); see In re Election v.
of U.S. Representative, 231
TOWN
WOODBRIDGE
et al. should,
Conn. 602,
653 OF
A.2d
79, 92 (1994) ("ballots
No. 16114.
where reasonably possible,
be read to effectuate the
expressed intent of the voter, so as not to unreasonArguedhim
Juneor11,her.").
1999. At oral arguably disenfranchise
Decided
Aug.
17,
ment, counsel for both parties 1999.
agreed this standard
is consistent with New Hampshire election laws
Unsuccessful write-in candidate for elementary
and jurisprudence, and can be applied in this case.
board of education brought action against town, registrars
of voters,
successful
Our election
laws and
provide
voters candidates,
with severalchalways
lenging
election
on alleged
voting
mato express
theirresults
intent.based
See RSA
659:17
(1996).
chine
malfunctions.
The
Superior
Court,
Judicial
The legislature directs voters to: "Vote for the canDistrict
of your
Newchoice
Haven,
J., by
ordered
new
didate of
forPittman,
each office
making
the
election.
Defendants
appealed.
The
Supreme
Court,
appropriate mark. Follow directions as to the numBorden,
J., held that:
court
its disber of candidates
to (1)
be trial
elected
to abused
each office."
cretion
in
refusing
to
open
evidence
to
consider
RSA 659:17, I. The statutory scheme further
election
records offered by defendants, and (2) new
provides:
election
not may
warranted.
II. Awas
voter
vote for a candidate in a state
general election ... by making the appropriate
Reversed and remanded with direction.
mark for the name of each candidate for whom he
wishesJ.,toconcurred
vote. Ifand
he filed
desires
to vote for a canBerdon,
opinion.
didate whose name is not printed on the ballot, he
shall write in the
name
of the person for whom he
West
Headnotes
to vote 8.1
in the space provided for that pur[1] desires
Elections
pose. Most Cited Cases
144k8.1
III. In
state general
the following
inPurpose
of aelection
statuteselection,
is to ensure
the true and
structions
voters
for straight
ticket
shall
most
accurate to
count
possible
of votes
for voting
candidates
be election.
printed on the ballot: Make the appropriate
in the
mark for the political party of your choice if you
[2] wish
Elections
227(8)
to vote for
all candidates running in that
144k227(8)
Most
party. If
youCited
vote Cases
a straight ticket, but wish to
When
individual
ballot
is
questioned,candidates,
no voter is you
to
vote for one or more individual
be may
disfranchised
on
a
doubtful
construction,
and
do so, and your vote for an individual canstatutes
tending
to limit exercise
of ballot
didate
will override
the straight
partyshould
vote be
for
liberally
construed
in
his
or
her
favor.
that office. However, if you vote for one candidate for an office where more than one candidate
[3] Elections
298(1)
is to be elected, be sure to vote individually for
144k298(1) Most Cited Cases
all candidates of your choice for that office, beElection laws generally vest primary responsibility
cause your straight ticket vote will not be counted
for ascertaining intent and will of voters on election
for that office.
officials, subject to court's appropriate scope of reIV. In a state general election, the following instructions to voters for split **1028 ticket voting
shall be printed on the ballot: If you do not wish
Page 1
Page 6
view when officials' determination is challenged in
a judicial
to voteproceeding.
for all candidates running in the same
party, make the appropriate mark opposite the
[4] names
Elections
227(1)
of the candidates
for whom you wish to
144k227(1)
Most
Cited
Cases
vote.
No
losing
candidate
RSA
659:17,
II-IV. is entitled to the electoral equivalent of a "mulligan," which is a free shot sometimes
awarded
to a to
golfer
nontournament
play
[7][8][9]
Pursuant
this in
statutory
scheme, voters
when
shot was poorly
played.
may preceding
vote for individual
candidates,
write in names
of candidates, vote along straight party lines, *112
[5]
298(3)
andElections
vote along split
party lines. None of these vot144k298(3)
Most
Cited
Cases
ing methods is required.
Nor, as we read the per(Formerly
144k227(1))
missive statutory language, are these methods exTo
secureofjudicial
order for Cf.
new Murchie,
municipal76
election,
clusive
one another.
N.H. at
challenger
is
not
required
to
establish
that,
but
104, 79 A. 901 (county election dispute decidedfor
unirregularities
he straight
has established
a factual
der prior lawthat
when
ticket voteaswas
exclusmatter,
he would
have on
prevailed
election;
inive of any
other mark
ballot). inThus,
if a voter
stead,
must be persuaded
(1) there were
makescourt
an appropriate
mark for that
any candidate
or ofsubstantial
errors
in
rulings
of
election
or
fice in substantial compliance with the official
above statofficials,
or
substantial
mistakes
in
count
of
votes,
ute, the vote should be counted. See id. A vote
and
(2) as
result
of those
errors or
reli-in
should
nota be
counted,
however,
formistakes,
a candidate
ability
of
result
of
election,
as
determined
by
eleca race in which the voter clearly did not intend to
tion
is v.seriously
in W.Va.
doubt.475,
C.G.S.A.
§
vote.officials,
See State
Kress, 142
96 S.E.2d
9-328.
166, 170 (1957). There is no provision in our laws
requiring voters to vote for all offices in an elec[6] Elections
305(2)
tion. See id.
144k305(2) Most Cited Cases
Although
facts are
to be established
by a
[10][11]underlying
We determine
a voter's
intent by giving
preponderance
of
evidence
and
are
subject
on
apweight to all marks placed on the ballot, regardless
peal
to the
clearly
ultimate
de- a
of the
method
byerroneous
which thestandard,
voter chose
to cast
termination
of
whether,
based
on
underlying
facts,
vote. See Murchie, 76 N.H. at 107, 79 A. 901.a
new
municipal
election
for, thatSee
is, whethMarks
on a ballot
may is
notcalled
be ignored.
id.
er there were substantial violations of statute authorizing
court to
new election
that render
re[12][13][14]
In order
summary,
the principles
guiding
liability
of result
of election
in doubt,
a
our inquiry
in this
case are seriously
as follows:
(1) we iswill
mixed
question
of factbecause
and law
subject to
not void
an election
of that
mereisirregularities
plenary
review oninappeal.
C.G.S.A.
§ 9-328;
Prac-or
or technicalities
the form
of a ballot,
election
tice
Book
§ 60-5.
vote;
(2) 1998,
we strive
to enfranchise voters by giving
effect to all marks on the ballot; and (3) we strive
[7]
to Statutes
avoid diluting181(1)
votes by counting as votes marks
361k181(1)
Most Cited
that were intended
to Cases
indicate the voter's intent to
abstain. See Bennett v. Yoshina, 140 F.3d 1218,
[7] Statutes
188
1226-27 (9th Cir.1998), cert. denied, 525 U.S.
361k188 Most Cited Cases
1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). Our
decision is not guided by party politics or a preference for a particular political candidate, but is
guided by these neutral legal principles.
269
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