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 2 1

- A	M.R.S.	§	737

- A(10)	(2017)

. Having	considered	the	facts	and

the	applicable	law,	w e 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	 decis ion	 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,	 n o	 facts	 are	in

dispute	 except	 as	 to	 the	 intention	 of	 the	 voter	 who	 completed	 the	 single2

disputed	ballot. T he	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.	Q uirion	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 2 1

- 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	C lerk	supervise d 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	d etermi ning voter	i ntent,	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	 t abulation

was	173	 votes	 for	Quirion	and	172	 votes	 for	Trahan ,	with	 thirty

- eight	blank

votes	and	one	disputed	ballot

.3

[¶ 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	Quirio n,	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	mark4

beside the	 box	 containing Trahan ’ s	 name. Unlike	 some	 of	 the	 voter ’ s	 other

marks	 in	 the	 mar gins,	 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	 questio n	 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	 th erefore

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	ma rk	in	an	oval5

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	 J erry 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

Associat e	Justice6

/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	memorandumSTATE	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	b allot d ispute	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