The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NOS. AP-06-035
t.P-06-036
GA ~ - '/ O~:·- V/Lj (d-co.::2
DAVID E. LANE, et a1.,
Plaintiffs
v. ORDER
TOWN OF ARUNDEL, et al.,
QOOI t (', N'Vf
Defendants
Before the Court are the consolidated appeals of Plaintiff David E. Lane and
Plaintiff Troy Parker with respect to Defendant the Town of Arundel's June 2006
Selectman race. Following hearing, Mr. Parker's appeal is Denied and Mr. Lane's
appeal is, effectively, moot.
BACKGROUND
On or about June 13,2006, Defendant the Town of Arundel (Town) held elections
for the office of Selectmen. Two seats were open for which three candidates were on the
ballot (Plaintiff David E. Lane (Mr. Lane), Mark Paulin and Roland Drew). Plaintiff
Troy Parker (Mr. Parker) was a write-in candidate and actively campaigned for a seat.
After tallying the votes, the Town declared Mark Paulin and Mr. Lane the winners of
the open Selectmen seats. Mr. Parker challenges the outcome of the election and the
disposition of certain ballots. Mr. Lane challenges the disposition of certain ballots
credited to Mr. Parker. Specifically at issue for Mr. Parker are twenty-four votes
wherein voters wrote Mr. Parker's name on the ballot in the appropriate space, but
failed to check the voter indicator box. The Town deemed these votes invalid pursuant
to 21-A M.R.S.A. § 696(2)(D) and accordingly did not count the votes in Mr. Parker's
favor. Also at issue are fourteen votes not credited to Mr. Parker that contained some
variation of Mr. Parker's name. The Town did not credit these fourteen votes to Mr.
Parker because they concluded that the partial names did not clearly indicate the voter's
choice for Mr. Troy Parker. With respect to these fourteen votes, the voter indicator box
was checked.
Should Mr. Parker prevail on the fourteen contested votes that contained a
variation of his name, he would still have an insufficient number of votes to claim
victory in the election. Accordingly, the validity of the twenty-four ballots that did not
have a marked voter indicator box is determinative in the outcome of the Selectman
race.
DISCUSSION
I. Standard of Review
The Court reviews a local board's decision for error of law, abuse of discretion,
or findings not supported by substantial evidence in the record. York v. Town of
Ogunquit, 2001 ME 53, CJI 6, 769 A.2d 172, 175. Substantial evidence is evidence that is
sufficient for a board to have reasonably found the facts as it did. Ryan v. Town of
Camden, 582 A.2d 973, 975 (Me. 1990). The burden of persuasion is on the party
challenging a board's decision to show that the evidence compels a different result.
Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (1996). The Court must not substitute its
judgment for that of a board on factual issues. Id. Questions of statutory construction
are reviewed de novo. State v. Pierce, 2006 ME 75, CJI 21, 899 A.2d 801, 805 (citations
omitted).
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II. Twenty-Four Contested Ballots with Unmarked Voter Indicators
Mr. Parker asserts that the Town incorrectly failed to count, in his favor, the
twenty-four ballots that, though the voters failed to check the voter indicator box,
clearly stated his name as the write-in candidate. Mr. Parker's challenge is a question of
law regarding the interpretation of a statute. Accordingly this Court reviews the
Town's interpretation of the statute on a de novo basis.
a. Counting, Marking and Handling of Ballots
The counting, marking and handling of ballots is governed by 21-A M.R.S.A. §§
691-699. Under Maine law, a voter may write in the name of a candidate for
nomination to an office. 1 21-A M.R.S. § 691(2) (2007). If the outcome of an election is in
dispute, certain statutory procedures exist to determine the validity or disposition of a
disputed ballot. See 21-A M.R.S. § 696 (2007).
As an initial matter, any disputed ballots that are determined to be "invalid"
under section 696 must be removed from the count. In the Matter of Primary Election
Ballot Disputes 2004, 2004 ME 99, <[ 19, 857 A.2d 494, 500-501. "Because the legislature
has determined that these votes may never be counted, there is no need to attempt to
discern the voter's intent." Id.
One such "invalid" vote is any vote wherein a "voter writes in a name and
municipality of residence, but does not mark the write-in indicator.... " 21-A M.R.S. §
1 Section 691(2) reads:
WRITE-IN VOTE. If the voter wishes to vote for a person whose name is not on
the ballot, the voter must write the name and municipality of residence or paste a
sticker containing the name and municipality of residence in the blank space
provided at the end of the list of candidates for nomination to the office in
question. The voter must then mark the ballot as instructed in the directions on
the ballot to indicate a vote for the write-in candidate.
21-A M.R.S. § 691(2) (2007).
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696(2)(D). The Law Court has specifically stated that such votes may not be saved for a
determination of voter choice pursuant to section 696(4).2 In the Matter of Primary
Election Ballot Disputes 2004, 2004 ME 99, n. 4, 857 A.2d at 501. The Law Court has
interpreted the legislature's meaning of "may not be saved" to mean that the votes
"may never be counted." In the Matter of Primary Election Ballot Disputes 2004, 2004 ME
99, Cf[ 19, 857 A.2d at 501. The Law Court went on to state, lithe significance of marking
the voter indicator box cannot be understated." In the Matter of Primary Election Ballot
Disputes 2004, 2004 :ME 99, Cf[23, 857 A.2d at 502.
In this case Mr. Parker asserts that the Town erred in not including the twenty
four write-in votes that clearly indicated his name, but which lacked a checked voter
indicator. The Law Court addressed this exact issue and deemed such votes invalid
under section 696(2)(D). In the Matter of Primary Election Ballot Disputes 2004, 2004 ME
99, Cf[ 39, 857 A.2d at 505. Accordingly, the Town did not err in invalidating and
excluding the twenty-four challenged ballots.
b. Legislative History of § 696(2)
Mr. Parker asserts that In the Matter of Primary Election Ballot Disputes 2004 does
not control the disputed ballots in the instant case because it construed a predecessor
statute with different language. However, the statutory language material to Mr.
2 Section 696(4) states:
DETERMINATION OF CHOICE POSSIBLE. If a voter marks the voter's ballot in
a manner that differs from the instructions at the top of the ballot but in such a
manner that it is possible to determine the voter's choice, then the vote for the
office or question concerned must be counted.
21-A M.R.S. § 696(4) (2007).
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Parker's challenge is identical to the statutory language construed in the 2004 case. 3 At
the time of the 2004 election dispute considered by the Law Court, section 696(2)(D)
read:
If a voter writes in a name and municipality of residence, but does not
mark the write-in indicator, the vote for that office may not be counted
(emphasis added).
21-A M.R.S.A. § 696(2)(D) (Supp 2003). On the date of the election at issue in this case,
section 696(2)(D) read:
If a voter writes in a name and municipality of residence, or pastes a
sticker containing the candidate's name and municipality of residence in
the write-in space pursuant to section 691, but does not mark the write-in
indicator, the vote for that office may not be counted (emphasis added).
21-A M.R.S. § 696(2)(D) (2007). The additional language ("or pastes a sticker
containing the candidate's name and municipality of residence in the write-in
space pursuant to section 691") was added in 2005 but has no bearing on the
validity of an unmarked write-in indicator.4 LD. 1266 (122nd Legis. 2005).
Accordingly, the Law Court has already addressed the specific issue
before this Court with respect to the hventy-four challenged ballots, and found
them invalid.
3 In 1997 the Maine Legislature enacted an Act to Amend the Election Laws. L.D. 1731
(118th Legis. 1997). In that Act, section 696(2)(D) was amended to read "If a voter writes in a
name and mUnicipality of residence, but does not mark the write-in square indicator, that vote
for that office lffiall. may not be counted." ld. at 31-LR0671(l). The language change was noted
as a "technical changer] . . . to correct statutory references and maintain consistency with
changes to other sections of law." ld. at 37-LR0671(1). The change in language from "shall not"
to "may not" was not listed as a substantive change to the election laws. ld. at 37-LR0671(1)
40-LR0671(1).
4 In June 2005 the legislature also added language to section 696(2)(D) that would
allow the vote to be counted "if a determination of choice under subsection 4 is
possible:' L.D. 1266 (122nd Legis. 2005). That language, however, was removed in
April 2006, prior to the disputed election. LD. 1889 (122nd Legis. 2006). Accordingly, a
plain reading of the statute, as interpreted by the Law Court in 2004, precludes any
determination of choice under section 696(2)(D).
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III. Fourteen Contested Checked Ballots
Because the Court has determined the Town correctly invalidated the twenty-four
unmarked ballots, and because the remaining disputed ballots will not affect the outcome of the
election, the Court need not reach the remaining issues.
CONCLUSION
The election result for the June 13, 2006 Town of Arundel Selectman race is affIrmed in
the Parker matter. The Lane matter is dismissed as moot.
Dated: January ~, 2008
AP-06-035 AP-06-036
PLAINTIFF - DAVID LANE PLAINTFF TROY PARKER
WILLIAM S KANY ESQ
RICHARD HULL, III, ESQ. SMITH ELLIOTT SMITH & GARMEY
409 ALFRED 8T PO BOX 1179
BIDDEFORD, ME 04005 SACO ME 04072
DEFENDANT TOWN OF ARUNDEL DEFENDANT TOWN OF ARUNDEL
LEAH B RACHIN ESQ LEAH B RACHIN ESQ
BERGEN & PARKINSON BERGEN & PARKINSON
62 PORTLAND RD 62 PORTLAND RD
KENNEBUNK ME 04043-6658 KENNEBUNK ME 04043-6658
PARTY IN INTEREST TROY PARKER
WILLIAM S KANY ESQ
SMITH ELLIOTT SMITH & GARMEY
PO BOX 1179
SACO ME 04072
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