In re Ballot Dispute in Election of Town of Winslow District 3 Town Councilor , 2018 ME 2 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 2Docket: SJC-17-8
Decided: January 11, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE BALLOT DISPUTE IN ELECTION OF TOWN OF WINSLOW
DISTRICT 3 TOWN COUNCILOR
JUDGMENT OF THE COURT
[¶1] The Town Clerk of Winslow, after conducting a vote recount,
tabulated the results and concluded that there was a single disputed ballot in
the race for a Town Council seat in District 3 in Winslow in the November 7,
2017, election. Because that single disputed ballot could make a difference in
the election, we have original jurisdiction to determine the result of the
election. See 21-A M.R.S. § 737-A(10) (2017). Having considered the facts and
the applicable law, we find and conclude that the marks on the disputed ballot
fail to disclose the voter’s intent to vote for either candidate. Accordingly, we
enter the following decision in which we confirm that Jerry A. Quirion was
elected to the Town Council for District 3.
I. FACTS AND BACKGROUND
[¶2] We sit as the trial court in this matter; however, no facts are in
dispute except as to the intention of the voter who completed the single
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disputed ballot. The initial results of the November 7, 2017, election for the
office of District 3 Town Councilor in Winslow were reported as 173 votes for
Jerry A. Quirion and 170 votes for Lee A. Trahan. Upon the request of Trahan,
the clerk or the clerk’s designee scheduled a recount, which was held ten days
after the election. See 21-A M.R.S. § 737-A(3), (4) (2017); 30-A M.R.S.
§ 2531-B (2017); see also 30-A M.R.S. § 2501(1) (2017) (“When Title 21-A
applies to any municipal election, the municipal clerk shall perform the duties
of the Secretary of State prescribed by Title 21-A.”).
[¶3] The Town Clerk supervised the recount, at which both candidates
were present with their representatives. See 21-A M.R.S. § 737-A (2017).
After applying the Secretary of State’s rules for determining voter intent, 8A
C.M.R. 29 250 550-1 to -3 (2010); see 21-A M.R.S. § 696(6) (2017), two
additional ballots were identified as votes for Trahan because checkmarks
were placed next to his name, and one disputed ballot was segregated by the
municipal clerk or designee. See 8A C.M.R. 29 250 550-2, § 4(1)(A)(2);
21-A M.R.S. § 737-A(7). The final vote count stated in the recount tabulation
was 173 votes for Quirion and 172 votes for Trahan, with thirty-eight blank
votes and one disputed ballot.
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[¶4] Because “there are enough challenged or disputed ballots to affect
the result of an election,” the municipal clerk, upon our order, delivered a copy
of the disputed ballot to us for review, and we invited memoranda from the
candidates. 21-A M.R.S. § 737-A(10); see also In re Primary Election Ballot
Dispute 2008, 2008 ME 117, ¶ 6, 955 A.2d 216. Having received a
memorandum from Quirion, and Trahan having waived the opportunity to file
a memorandum, we now review the disputed ballot and “determine the result
of the election.” 21-A M.R.S. § 737-A(10). Our decision “is final and must be
certified to the Governor by the Chief Justice.” 21-A M.R.S. § 737-A(10).
II. DISCUSSION
A. The Disputed Ballot
[¶5] The ballot that the Town prepared for voters required that a voter,
to cast a vote for an individual, “fill in the oval to the left.” For the office of
District 3 Town Councilor, the ballot directed, “Vote for ONE” of the two listed
candidates. On the disputed ballot, a copy of which is appended to this
decision, the voter placed multiple marks in black boxes that appear in the
margins of the ballot, but the voter did not mark any ovals on the entire ballot.
With respect to the race for District 3 Town Council, there is a mark in the left
margin beside the outlined box containing Quirion’s name and another mark
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beside the box containing Trahan’s name. Unlike some of the voter’s other
marks in the margins, neither of these marks is in the shape of an oval or
circle. The mark in the margin beside Trahan’s name is nearer to the oval, but
it appears less like an oval and more like a scribble than the mark beside
Quirion’s name.
B. Application of the Law
[¶6] “If a voter marks more names for an office than there are vacancies
to be filled or more choices for a question than are permitted, the voter’s vote
for that office or question may not be counted.” 21-A M.R.S. § 696(2)(A)
(2017); see 8A C.M.R. 29 250 550-2 § 3(2). A vote will also not be counted “[i]f
a voter marks the voter’s ballot in such a manner that it is impossible to
determine the voter’s choice.” 21-A M.R.S. § 696(2)(B) (2017); 8A C.M.R.
29 250 550-2 § 4.
[¶7] Based on the appearance of the ambiguous marks in the margin
next to the boxes containing each of the candidates’ names, we find and
conclude that it is impossible to determine the voter’s choice, and therefore
the vote cannot be counted for either candidate. See 21-A M.R.S. § 696(2)(A),
(B); see 8A C.M.R. 29 250 550-2 §§ 3(2), 4; cf. In re Primary Election Ballot
Disputes 2004, 2004 ME 99, ¶ 35, 857 A.2d 494 (holding that a mark in an oval
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was “a stray mark,” not a vote for the candidate). As a result, the Town Clerk’s
final certified tabulation of the votes for each candidate is not augmented by
counting the disputed ballot for either candidate, and the Chief Justice will
certify to the Governor that Jerry A. Quirion was elected to the office of
District 3 Town Councilor in the Town of Winslow on November 7, 2017, by a
vote of 173 for Quirion and 172 for Trahan.
Dated: January 11, 2018
/s/
LEIGH I. SAUFLEY
Chief Justice
/s/
DONALD G. ALEXANDER
Associate Justice
/s/
ANDREW M. MEAD
Associate Justice
/s/
ELLEN A. GORMAN
Associate Justice
/s/
JOSEPH M. JABAR
Associate Justice
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/s/
JEFFREY L. HJELM
Associate Justice
/s/
THOMAS E. HUMPHREY
Associate Justice
Ronald W. Bourget, Esq., Law Offices of Ronald W. Bourget, Augusta, for Jerry
A. Quirion
Lee A. Trahan did not file a memorandum
STATE OF MAINE SUPREME JUDICIAL COURT
Docket No. SJC-17-8
IN RE BALLOT DISPUTE IN ELECTION OF TOWN OF WINSLOW
DISTRICT 3 TOWN COUNCILOR
Consistent with the decision of the Maine Supreme Judicial Court
regarding the ballot dispute in the above-captioned matter, I hereby certify to
Governor Paul R. LePage that Jerry A. Quirion was elected to the office of
District 3 Town Councilor in the Town of Winslow on November 7, 2017, by a
vote of 173 for Quirion and 172 for Lee A. Trahan.
Dated: January 11, 2018 /s/
LEIGH I. SAUFLEY
Chief Justice