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 Court of Connecticut. vote must yield to recognition of voter's indication BORTNER of intent). We Steven apply the doctrine of substantial v. long-standing rule that compliance to effectuate our TOWN OF WOODBRIDGE et al.or votes statutes regulating the form of ballots No. "should not be applied to 16114. disenfranchise voters because of technical irregularities." Opinion of the Argued June 11, Justices, 114 N.H. at 786, 3301999. A.2d at 776; see Decided Aug. 17, 1999. N.H. CONST. pt. I, art. 11. UnsuccessfulApplication write-in candidate for is elementary [10][11][12] of this doctrine limited, board of education brought action against town, rehowever, to situations in which the defect or devigistrars of voters, and successful candidates, chalation is minor in nature. See Barcomb v. Herman, lenging results alleged 116 N.H.election 318, 320, 358based A.2d on 400, 402 voting (1976).machine malfunctions. The Superior Court, Judicial This is not such a case. Here, there was no subDistrict of New Haven, Pittman, J., ordered new stantial compliance; the statute clearly proscribes election. Defendants appealed. The Supreme Court, the use of stickers except by election officials in Borden, J.,enumerated held that: (1) trial court abused its disspecifically circumstances. The use of cretion in refusing to open evidence to consider stickers in this case was neither a minor deviation election recordsirregularity. offered by defendants, and (2)112 new nor a technical Cf. Bridgham, election was notA.2d warranted. N.H. at 86, 289 at 393-94. Nor is it evident that either Ball or the voters intended to comply Reversed and remanded with direction. with the statute. See Attorney General v. Duncan, 76Berdon, N.H. 11, 13, 78 A.and 925, 926opinion. (1911) (Walker, J., concurred filed J.). Indeed, the plain language of RSA 659:65, II(b) is more than sufficient to warn candidates and West Headnotes voters that sticker votes [1] Elections 8.1 will not be counted. Thus, this is not a case which a voter could have 144k8.1 Most CitedinCases thought she was voting in ensure compliance with Purposeheof or election statutes is to the true and the statute. Duncan, 76 of N.H. at for 13, candidates 78 A. at most accurateCf. count possible votes 926. in theBecause election.there was no substantial compliance with the statute in this case, we are not at liberty to [2] Elections 227(8) give controlling effect to the voters' intent. Even 144k227(8) Mostintent Cited isCases when the voters' clear, if the means they When individual ballot is no voter is to employed to indicate their questioned, vote does not substanbe disfranchised on a doubtful construction, and tially comply with the applicable statute, "their atstatutes tending exercise tempt to vote ... istoalimit failure." Id.; of seeballot also should State exbe liberally construed in his or her favor. rel. Browne v. District Ct. of Third J. Dist., etc., 167 Mont. 477, 539 P.2d 1182, 1185 (1975). [3] Elections 298(1) 144k298(1) Most Cited [13][14] The defendantsCases argue that application of Election generally vest impermissibly primary responsibility the statutelaws in this case would disenfor ascertaining intent will of voters on election franchise the voters whoand used *1228 stickers to cast officials, to This court's appropriate scope of retheir votes subject for Ball. argument is unavailing. The right to vote is cherished and protected by our State Constitution. See N.H. CONST. pt. I, art. Page 1 Page 5 view when officials' determination is challenged in judicial proceeding. . a Recognizing that "[t]he object of election laws is to secure the rights of duly qualified voters, and not Elections 227(1)of the Justices, 116 N.H. to[4] defeat them," Opinion 144k227(1) Most Cited Cases 756, 759, 367 A.2d 209, 210 (1976) (quotation No losing candidate is entitled the electoral equiomitted), we strive, in resolvingtoelection disputes, valent of a "mulligan," which is a free shot someto ascertain the legally expressed choice of the times and awarded a golfer cases in nontournament play voters avoidtodeciding on unwarranted when preceding shot was poorly played. technicalities. See id. As noted above, we employ the doctrine of substantial compliance to effectuate [5] Elections 298(3) these goals. At the same time, we have long recog144k298(3) Most Cited Cases nized that the legislature is entitled to regulate the (Formerly 144k227(1)) time, place, and manner of elections in New HampTo secure judicial order for new municipal election, shire, see Murchie v. Clifford, 76 N.H. 99, 101, 79 challenger is not required to establish that, but for A. 901, 902 (1911), and we enforce such regulairregularities that he has established as a factual tions when they are reasonable. See Wilkes, 101 matter, he would have prevailed in election; inN.H. at 422-23, 145 A.2d at 170. stead, court must be persuaded that (1) there were substantial in rulings of election As applied inerrors this case, RSA 659:65, II(b) official regulatesor officials, or substantial mistakes in count ofhis votes, the manner by which a voter may not express or and (2) as a result of those errors or mistakes, reliher vote. Cf. Opinion of the Justices, 114 N.H. at ability resultatof775 election, as determined by elec786, 330ofA.2d (noting that prior election tion officials, is seriously in doubt. C.G.S.A. statutes afforded citizens several ways to express§ 9-328. preference by ballot). This is not, despite the defendants' contention to the contrary, an unreason[6] Elections 305(2) able restriction on the voters' right to cast a write-in 144k305(2) Most Cited Cases vote for the candidate of their choice. The legisAlthough underlying facts are to be established by a lature has the authority to prescribe the manner by preponderance of evidence and are subject on apwhich a voter may express his or her vote. peal to the clearly erroneous standard, ultimate deSee Murchie, 76 N.H. at 104, 79 A. at 903. Betermination of whether, based on underlying facts, a cause the sticker votes in this case were not cast in new municipal election is called for, that is, whetha manner permitted by, or in substantial compliance er there were substantial violations of statute auwith, the statute, they did not constitute the legally thorizing court to order new election that render reexpressed choice of the voters, cf. Opinion of liability of result of election seriously in doubt, is a the Justices, 116 N.H. at 759, 367 A.2d at 210, and mixed question of fact and law that is subject to thus we do not now inquire into the voters' intent, plenary review on appeal. C.G.S.A. § 9-328; Praccf. Murchie, 76 N.H. at 105, 79 A. at 903-04. Nottice Book 1998, § 60-5. ably, a majority of this court has upheld the invalidation of sticker votes [7] Statutes 181(1)pursuant to a statute less clearly prohibitory than Cases RSA 659:65, II(b), con361k181(1) Most Cited cluding that the statute mandated that stickers should not be counted, [7] Statutes 188 notwithstanding the intent of the voters. Most See Cited Duncan, 76 N.H. at 16-17, 78 A. at 361k188 Cases 928 (Parsons, C.J.). We conclude that RSA 659:65, II(b)'s provision that sticker votes "shall not be tabulated" is a reasonable exercise of legislative 316 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.