MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018	ME	2

Docket: 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