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 1022A.2d 104) (Cite as: 250 Conn. 241, 736 (Cite as: 149 N.H. 105, 816 A.2d 1022) Supreme Court oflegal Connecticut. the expert's testimony was error. Steven BORTNER *114 We also find no merit v. to McDonough's claim that missing statutory language in the instructions TOWN OF WOODBRIDGE et al. regarding voting inNo. multiple candidate races con16114. fused the voters with respect to their straight ticket Arguedlanguage June 11, 1999. vote. The missing is a technical irreguDecided 17, 1999. larity that should not Aug. invalidate a vote. See Keene v. Gerry's Cash Mkt., Inc., 113 N.H. 165, 167-68, Unsuccessful for McDonough elementary 304 A.2d 873write-in (1973).candidate Moreover, board of education brought action against rechallenged no errors in the results of thetown, multiple gistrars of voters, and successful candidates, chalcandidate races and there is no evidence that the lenging results on alleged ma-of missingelection language had based any effect on the voting outcome chine malfunctions. The Superior Court, Judicial this election. See id. at 167, 304 A.2d 873. District of New Haven, Pittman, J., ordered new election. Defendants appealed. Theexpressed Supreme by Court, We share the concerns, however, both Borden, heldthethat: (1) trial abused disthe BLCJ.,and secretary of court state that the its instruccretion in refusing to open evidence to consider tions for straight ticket voting required by RSA election by of defendants, and (2) to new 659:17,records III are offered "a source great confusion the election was not Hampshire." warranted. voters of New We additionally note the straight ticket voting instructions and procedReversed remanded with ures haveand been a source ofdirection. confusion under prior election laws. See Murchie, 76 N.H. at 107, 79 A. Berdon, J., concurred and filed opinion. 901. West Headnotes We are troubled also that the ballots do not instruct [1] Elections 8.1 voters clearly and unambiguously about the circum144k8.1 Most Cited Cases stances under which their votes will not count. Purpose of election statutes is to ensure the true and There are no instructions that explain when a most accurate count possible of votes for candidates skipped **1030 race will not be counted for any in the election. candidate. Having these kinds of instructions may avoid future disputes such as this one. [2] Elections 227(8) 144k227(8) Most Cited Cases [17][18] Having held that the BLC did not err with When individual ballot is questioned, no voter is to respect to 172 of the 269 challenged ballots, we be disfranchised on a doubtful construction, and deny McDonough's requests for a writ of prohibistatutes tending to limit exercise of ballot should be tion and a new election. A writ of prohibition is an liberally construed in his or her favor. extraordinary writ used to prevent an inferior tribunal or agency298(1) from improperly exercising jur[3] Elections isdiction not granted. See Wyman v. Durkin, 114 144k298(1) Most Cited Cases N.H. 781, 783, 330 A.2d 772 (1974).responsibility This writ is Election laws generally vest primary granted with extreme caution, andvoters then,on "only when for ascertaining intent and will of election the right to relief is clear." Durkin v. Hillsborough officials, subject to court's appropriate scope of reCounty Super. Ct., 114 N.H. 788, 789, 330 A.2d 777 (1974). In this case, McDonough's right to relief is not clear. Page 1 Page 8 view when officials' determination is challenged in a judicial [19] To proceeding. set aside an election, a party "must prove either fraud which leaves the intent of the voters in [4] Elections 227(1) doubt or irregularities in the conduct of the election 144k227(1) Most Cited of such a nature as to Cases affect the result." Appeal of No losing139 candidate is entitled theA.2d electoral equiSoucy, N.H. 110, 117, to 649 60 (1994) valent of a "mulligan," which is a free shot some(quotation and brackets omitted). In this case, Mctimes awarded to aalleged golfer or in proved nontournament play Donough has not fraud, and alwhen preceding shot was poorly played. though he asserts "irregularities," as discussed, these "irregularities" did not affect the result of the [5] Elections 298(3) election. 144k298(3) Most Cited Cases (Formerly 144k227(1)) Accordingly, we vacate our injunction preventing To secure judicial order forthe new municipal election, Coughlin from assuming office of Hillsborough challenger is not required to establish that, butasfor County Attorney and affirm his certification the irregularities that he has established as a factual winner in this election for Hillsborough County Atmatter, torney. he would have prevailed in election; instead, court must be persuaded that (1) there were substantial Affirmed. errors in rulings of election official or officials, or substantial mistakes in count of votes, J., concurred; FAUVER, J., superior andDUGGAN, (2) as a result of those errors or mistakes, relicourt justice, specially assigned under RSA ability of result of election, as determined by 490:3, elecconcurred; MCGUIRE and ARNOLD, JJ., *115 sution officials, is seriously in doubt. C.G.S.A. § perior court justices, specially assigned under RSA 9-328. 490:3, concurred specially. [6] Elections 305(2) MCGUIRE and ARNOLD, 144k305(2) Most Cited Cases JJ., concurring specially. Although underlying facts are to be established by a preponderance of evidence and are subject on apAlthough we concur in the result, we would uphold peal to the clearly erroneous standard, ultimate dethe decision of the New Hampshire Ballot Law termination of whether, based on underlying facts, a Commission (BLC) with respect to all 269 connew municipal election is called for, that is, whethtested ballots. We agree with the majority, the er there were substantial violations of statute auBLC and the secretary of state that straight ticket thorizing court to order new election that render reballoting has led to voter confusion. We believe, liability of result of election seriously in doubt, is a however, that the majority erroneously questions mixed question of fact and law that is subject to the BLC's uniform rule of straight ticket ballot inplenary review on appeal. C.G.S.A. § 9-328; Practerpretation and exacerbates the confusion surtice Book 1998, § 60-5. rounding straight ticket balloting. [7] Statutes 181(1) The issue before us is whether the decision of the 361k181(1) Most Cited Cases BLC was illegal with respect to jurisdiction, authorityStatutes or observance of the law, by arriving at a con[7] 188 clusion that could not legally or reasonably be 361k188 Most Cited Cases made, or whether its exercise of discretion was unsustainable, arbitrary or capricious. Petition of Herron, 141 N.H. 245, 246-47, 679 A.2d 603 (1996); 271 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.