The Resolution of Election Disputes: Legal Principles that Control Election Challenges 736 A.2d 104 700 1224 250A.2d Conn. 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 142 N.H. 288, A.2d 1224 (Cite as: 250 700 Conn. 241, 736 A.2d 104) (Cite as: 700 A.2d 1224) Supreme Courtvotes of Connecticut. were tallied, the sticker for Ball were not BORTNER counted. The Steven tally yielded the following results: 190 votes for the v.plaintiff, 174 votes for TOWN WOODBRIDGE et al. Gehres, and 107 OF handwritten write-in votes for 16114. 113 sticker votes Ball. The moderator No. disallowed for Ball, and the plaintiff was declared the winner of the selectmanArgued race. June 11, 1999. Decided Aug. 17, 1999. Upon Ball's request for a recount, see RSA 669:30 Unsuccessful write-in candidate elementary (1996), the defendant Town of Miltonfor Board of Reboard of education brought action against town,the recount (board) met to decide whether to count gistrars of voters, and successful candidates, chalsticker votes. By a three-to-two vote, the board delenging results based that on alleged voting exmacided to election count those stickers were placed chine malfunctions. The Superior Court, Judicial actly in the write-in space for selectman, with an District Haven,orPittman, J., ordered new "X," eitherofonNew the sticker handwritten, appearing election. Defendants appealed. The Supreme Court, in the proper place to the right of the candidate's Borden,Following J., held that: (1) trial court its the disname. a recount, Ball wasabused declared cretion in refusing to open evidence to consider winner with a total of 215 votes. The plaintiff, election recordstotal offered by defendants, and (2) new with a recount of 191 votes, appealed to the electioncourt. was notSee warranted. superior RSA 669:35 (1996). Reversed and remanded direction. After ordering the partieswith to submit statements of fact and memoranda of law, the superior court upBerdon, J., concurred and filed opinion. held the board's decision. The court found that the use of stickers wasWest not in accordance with the exHeadnotes ception provided in8.1 RSA 659:65, II(b). Nonethe[1] Elections less, the court found that the voters who placed 144k8.1 Most Cited Cases stickers in the write-in spaces Purpose of election statutes is intended to ensure to thevote true for and Ball, and that invalidating the sticker votes as demost accurate count possible of votes for candidates fective under the statute would disenfranchise those in the election. voters. See N.H. CONST. pt. I, art. 11. In light of[2]these findings, the court ruled that RSA 659:65, Elections 227(8) II(b) is only Most *1226Cited "directory 144k227(8) Cases in nature" in cases "where clear intent voters is evident," When the individual ballotofisthe questioned, no voter and is to that, accordingly, the intentconstruction, to vote for Ball be disfranchised on voters' a doubtful and prevailed over thetostatute. statutes tending limit exercise of ballot should be liberally construed in his or her favor. The plaintiff appeals, arguing that the superior court erred by ruling that the statute is "directory" [3] Elections 298(1) in144k298(1) nature rather than mandatory, Most Cited Cases and that "the clear intent of the voters" is sufficient to override the exElection laws generally vest primary responsibility press prohibitory intent language theofstatute. acfor ascertaining and of will voters onThe election tual vote count is not in dispute; the parties officials, subject to court's appropriate scopeagree of rethat if the sticker votes are counted, Ball's election would stand, but if the sticker votes are invalidated as defective, the plaintiff would have a plurality of 314 Page 1 Page 3 view when officials' determination is challenged in a judicial proceeding. votes. [4] Elections 227(1) "A ballot shall be reRSA 659:65, II provides: 144k227(1) Most Cited Cases garded as defective in part and that part shall not be No losingif candidate is ballot entitledhas to the electoral tabulated ... (b) The attached to itequian valent ofslip, a "mulligan," is a prepared free shotinsomeadhesive sticker, or which paster not actimes awarded to a656:21 golferininthenontournament cordance with RSA space for any play ofwhen shot poorly played. fice, butpreceding the rest of thewas ballot admits to counting...." RSA 656:21 (1996), in turn, authorizes the use of [5] Elections stickers by election 298(3) officials, in the event of a can144k298(3) Cited Cases after the ballot has didate's deathMost or disqualification been(Formerly printed, to144k227(1)) affix the name of a substitute canTo secure municipal The election, didate to thejudicial ballotsorder priorfor to new the election. suchallenger is not required to establish that, but for perior court found that the stickers distributed by irregularities that he has established as a factual Ball were not prepared in accordance with RSA matter, he would have prevailed in election; in656:21. stead, court must be persuaded that (1) there were substantial errors in rulings [1] As a preliminary matter,ofweelection addressofficial the de-or officials, suggestion or substantial in count of votes, fendants' thatmistakes RSA 659:65, II(b) does andapply (2) astoa result those errors mistakes, relinot town of elections. RSAor669:25 (1996) ability ofthat result of chapters election, 658 as determined by elecprovides RSA and 659 apply in tion officials, seriously doubt. C.G.S.A. towns using the isofficial ballotin system. Both the§ 9-328.and the superior court assumed, in rendering board their respective decisions, that the statute applied. [6] Elections The defendants do 305(2) not contend that the town has 144k305(2) Most Cited not adopted the officialCases ballot system, see RSA Although are to be established by a 669:25, andunderlying we note facts that the election procedures preponderance of evidence and are subject on apused in this case were inconsistent with the unoffipeal ballot to the clearly standard, ultimate decial system,erroneous cf. RSA 669:55 (1996) termination of whether, based on underlying facts, (providing no names of candidates shall be printed a new municipal election On is called for,the that is, whethon unofficial ballots). appeal, defendants er there were substantial violations of statute aucontend that applying RSA 659:65, II(b) to town thorizingwould court to orderannew election thatwith render reelections create inconsistency RSA liability of result of election seriously in doubt, is 669:22 (1996), which permits a town clerk to re- a mixeda question of candidate's fact and law thatfrom is subject move withdrawn name printedto plenary review on appeal. C.G.S.A. 9-328; Pracballots using pasters. They argue that §RSA 659:65, tice Book 1998, § 60-5. II(b) would render the ballots prepared pursuant to 669:22 defective because they were not prepared in [7] Statutes 181(1) accordance with 659:21, the only enumerated ex361k181(1) Most Cited Cases ception to 659:65, II(b). [7] Statutes 188 We perceive no inconsistency in applying RSA 361k188 Most Cited Cases 659:65, II(b) to town elections. RSA 669:22 and RSA 656:21 allow the use of stickers or pasters in essentially the same circumstances: in the event of the disqualification of a candidate due to "age, © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.