COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. Superior Court Cit. Action No.
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John A. Donohue, )
David Downes, Ernesta Kraszkiewicz )
PLAINTIFFS v )
)
Town of Watertown, Board of Election Commissioners )
Gertrude Broderick, George Bogosian, Curtis A. Whitney )
and Demos Zevitas, and John Flynn as he is Town Clerk of the )
City known as the Town of Watertown )
DEFENDANT. )
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Intervenor Devaney’s Opposition to Donohue’s
Petition for a Preliminary Injunction
Introduction
This action, sounding in equity and seeking injunctive relief, arises out of Plaintiff John D. Donohue’s (“Donohue”) unsuccessful election recount bid for the position of Watertown Councillor at Large. Donohue filed claims against the City known as the Town of Watertown (“the Town”) and the its Commissioners of Elections (“the Election Commissioners”), among others, alleging that the outcome of the election is in doubt. Intervenor Marilyn Petitto Devaney (“Devaney”) emerged victorious from the recount and wishes to be heard as she has a stake in the outcome of this litigation, she being the candidate whose seat Donohue lays claim.
Facts
Watertown held an election on November 6, 2007 for, among other offices, Councillor-at-Large. There were a number of candidates, from which the top four vote getters would be elected. The final tally at the election showed Plaintiff John A. Donohue as the fourth place finisher, beating Intervenor Marilyn Petitto Devaney by five votes. Both candidates were incumbents. Both candidates petitioned for a recount, which was held on November 30, 2007. The results of the recount, duly certified, show that Devaney beat Donohue by six votes.
Donohue seeks a new election by “run off” between him and Devaney. Devaney moved to intervene, seeking a judgment from this court declaring her the-victor.
The Law Regarding Elections and Recounts
The design of the election laws is to provide expeditious and convenient means of expression of the will of the voters free from fraud. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 278 (1932). “The purpose of election laws is to ascertain the popular will and not to thwart it.” Morris v. Board of Registrars of Voters of East Bridgewater, 362 Mass. 48, 49 (1972). “The presumption is that election laws are enacted to prevent fraud and to secure freedom of choice, and not by technical obstructions to make the right of voting insecure.” Swift, 281 Mass. at 278.
Courts are not powerless to overturn elections where irregularities are present. The superior court has broad equity powers to enforce the election laws. M.G.L. c. 56 § 59. See McCarthy v. Secretary of Commonwealth, 371 Mass. 667 (1977). However, not every deviation from statutory provisions automatically upsets the result of an election. Irregularities in the conduct of an election, not shown to violate the substantive end for which the election was held, do not invalidate the result. Swift, 281 Mass. at 278. To overturn the results and order a new election the irregularity or illegality of the election must be such that the result is in doubt, that is, determining the victor is impossible. See McCavitt v. Registrars of Voter of Brockton, 385 Mass. 833, 841-42 (1982). Irregularities in the conduct of an election, not shown to violate the substantive end for which the election was held, do not invalidate the result. Swift, 281 Mass. at 278 Fyntrilakis v. City of Springfield, 47 Mass. App. Ct. 464 (1999).
The determination of the legal effect of a ballot is a question of law. McCavitt v. Registrars of Voter of Brockton, 385 Mass. 833, 839 (1982); Morris v. Board of Registrars of Voters of East Bridgewater 362 Mass. 48, 49 (1972). Votes counted by election officials are presumed to be legal. McCavitt v. Registrars of Voter of Brockton, 385 Mass. 833, 846 (1982). The challenger has the burden of overcoming that presumption. Id.
The court must make a de novo determination of the voters’ intent on the challenged ballots only. McCavitt, 385 Mass. at 837 (emphasis added); DePetrillo v. Registrars of Voters of Rehoboth, 342 Mass. 13, 16 (1961). When ballots are summoned to court for review, only protested recount ballots shall be produced. Cotten v. Haverhill, 409 Mass. 55 (1990) (citing M.G.L. c. 54, § 135). Voting disputes are resolved, where at all possible, in favor of enfranchising, rather than disenfranchising, the voter. See Santana v. Registrars of Voters of Brockton, 385 Mass. 833, 839 (1982), appeal after remand 390 Mass. 353 (1983).
Voters are entitled to cast their ballots and have their ballots counted if at all possible. McCavitt, 385 Mass. at 839 n. 6. A voter who has cast his ballot in good faith should not be disenfranchised because of a failure of a ministerial officer to perform some duty imposed upon him by law. McCavitt v. Registrars of Voter of Brockton, 385 Mass. 833, 841-42 (1982). Only when the voter’s intent cannot be fairly and satisfactorily ascertained, can the ballot rightly not be counted. O’Brien v. Board of Election Commissioners of Boston, 257 Mass. 332 (1926). See McCavitt, 385 Mass. at 838 (1982).
Limitations on Court’s Review
First, the Court reviews all protested ballots and establishes the precise margin of victory. Colten v. Haverhill, 409 Mass. 55 (1990). After the margin of victory is established, any challenged absentee ballots should be reviewed for validity to determine whether the resulting number of any absentee ballots adjudicated as invalid exceeds the margin of victory by one vote or more. Id. In order to get a new election, the challenger must show that there is one more invalid absentee ballot than there are votes in the margin of victory. Id.; see Fyntrilakis v. City of Springfield, 47 Mass. App. Ct. 464 (1999).
Donohue has protested eight ballots.
Argument
Donohue’s premature request for an injunction must fail because he cannot demonstrate that the result of the election is in doubt, the voters’s will is expressed in the recount and his request undermines the public interest in fair and dispositive elections.
Donohue’s premature request for an injunction must fail because he cannot demonstrate that the result of the election is in doubt, the voters’s will is expressed in the recount and his request undermines the public interest in fair and dispositive elections. In order to obtain injunctive relief, Donohue must satisfy four criteria: (1) that Donohue will suffer irreparable harm if the injunction does not issue; (2) that such injury outweighs any harm that granting injunctive relief would inflict on Devaney or the Town and Election Officials; (3) that Donohue has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the issuance of the injunction. Planned Parenthood League
of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981); see also Mass. R. Civ. P. 65(a). (immediate and irreparable injury must be shown by affidavit or complaint).
Unless for good cause shown, no restraining order shall issue except upon the giving of security by the applicant for payment of such costs and damages as may be incurred by any party who is found to have been wrongfully enjoined or restrained. Mass. R. Civ. P. 65(c). Should the restraining order issue, Donohue should give security to cover the potential damage to Devaney, the Town, Election Commissioners and to the public caused by the restraining order, including, attorney’s fees and costs.
1. No harm will come to Donohue if the premature preliminary injunction is denied.
Donohue asks this Court today to order a “run off” election between him and Devaney before the Court has had the opportunity to review even one contested ballot. How will Donohue’s interests be adversely affected by having to produce outcome-determinative evidence at a hearing prior to the Court’s issuance of the injunction? Of course, the answer is in the question-he has no evidence. The fact that he produces no evidence whatsoever before the Court this day is sufficient reason to deny the injunction request.
Courts considering injunctions at this stage of the proceedings have found the requests to be premature. Fyntrilakis v. City of Springfield, 47 Mass. App. Ct. 464 (1999) (trial court prematurely invalidated results of primary election without first hearing limited testimony from voters regarding their satisfaction of residency requirements at time of election, which, if established, would make their votes valid despite lack of affirmation). No harm can come to Donohue by holding him to his burden of proof regarding the review of a handful of disputed ballots.
Moreover, even if he were to succeed in obtaining a new election, the “run off’ election between him and Devaney is not appropriate. In every case ordering a new election, the new
election was held for the entire slate of candidates for the office. See Rizzo v. Board of Election Commissioners of Revere, 403 Mass. 20 (new school committee election ordered for all seven . candidates); Fyntrilakis, 47 Mass. App. Ct. 464 (1999)(new democratic primary ordered).
2. The Town, Election Commissioners and Devaney will suffer irreparable harm if the premature injunction issues.
In contrast, the Town, Election Commissioners and Devaney, will suffer irreparable harm if the premature injunction issues. Donohue’s complaint and memorandum are replete with allegations of incompetence on behalf of the Election Commissioners. So hyperbolic are his claims that it will be impossible for these fine people, who work for no compensation, to regain their reputations as good citizens and contributing members of Watertown society.
For the Court to issue an immediate injunction without any review of the evidence would telegraph to the public that their officials committed fraud and that it was so apparent to the Court, based on one person’s say so, that Devaney is not entitled to her seat on the Town Council. Issuing the injunction now would signal to the public that their votes do not count, or that someone manipulated their votes. Nothing could be further, from the truth.
For Donohue, this is merely about a seat on the Council, for those he maligned; however, the contest is about much more. The contest is about whether those involved in the recount, are entitled to continue to enjoy their good reputations. Waiting to enjoin until such time as Donohue proves up provides the additional assurance_that the Defendants’ reputations will be protected.
And while it may appear that the issue for Devaney is merely about a seat on the Council, her reputation is involved as well. It is very clear that only one person would benefit from what Donohue described as chaos at the recount, resulting in the supposed over counting of ballots for Devaney, and that’s Devaney. She is being tarred by the same brush that Donohue used on the Election Commissioners. Donohue’s thinly veiled efforts to make the victor in a
legitimate recount appear to be corrupt, should not substitute as evidence and should not be countenanced by this Court.
To issue this order will cause unfair and irreparable damage to the reputations of the Election Commissioners and Devaney, as well as to other town officials.
3. Donohue’s claim, that the results of the election are in doubt, has no merit.
Donohue’s claim, that the results of the election are in doubt, has no merit. While this court is limited to reviewing only the protested ballots, which number eight, Donohue makes claims about a category of nine ballots that were not set aside as disputed ballots. His argument should be dismissed out of hand. In the interest of protecting Devaney’s rights and not to elevate the legitimacy of the nine undisputed ballots, Devaney addresses these as well and refers to the eight disputed ballots plus the nine undisputed ballots as “challenged ballots,” numbering 17.
Starting Tally of Donohue’s Challenged Ballots: 17
The Ballot Differential at the Recount
In total, Donohue asserts errors with 17 ballots: nine “erroneously inserted” ballots counted in B4 and B5; six absentee ballots and two ballots cast by inactive voters.
In his verified complaint, Donohue asserts, under oath, that there “appears” to be nine spoiled or otherwise non-countable ballots counted in precinct B4 during the recount.1 Verified Complaint, ¶13.
What Donohue fails to inform the Court is that the true number we should be dealing with is one less because, once the whole Town was recounted, it became clear that one less ballot was cast in D1O than what had originally been counted.
Minus 1-Tally of Donohue’s Remaining Challenged Ballots: 16
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1 When a voter realizes he made a mistake on his ballot, he is given a replacement ballot and the so-called “spoiled” ballot is marked by an election officer as “spoiled.” M.G.L. c. 54, §81.
Be that as it may, Donohue offers no evidence of any spoiled ballots being counted as legitimate ballots. He did not dispute any ballots marked as “spoiled.” He speculates that the ballots that were not counted during the election must have been spoiled, because’there is no other way to account for the discrepancy. This is not evidence, this is conjecture. In fact, a comparison of the voter check lists to the ballots tallied shows that the argument is bogus.
The fact of the matter is that recounts frequently show more ballots counted than were counted at the election. See McCavitt v. Registrars of Voter of Brockton, 385 Mass. 833 (1982) (300 votes had been counted at recount that had not been counted on election day); Swift v. Registrars of Voters of Quincy, 281 Mass. 271 (1932); Penta v. City of Revere, 8 Mass. L. Rptr. 106 (1997). There is not a single case on record where a new election was called for because the recount surfaced ballots that were not counted at the election. Compare, Penta, 8 Mass. L. Rptr. 106 (1997) (more ballots at recount than at election is not a material irregularity sustaining request for new election).
Indeed, not one of these cases concluded that the surfaced ballots must have been mistakenly counted. See McCavitt, 383 Mass. 833; Swift, 281 Mass. 271; Penta, 8 Mass. L. Rptr. 106. In fact, quite the opposite was true. Courts presented with this situation sided with number of votes tallied at the hand recount over the machine tally, recognizing that machines make mistakes. Swift, 281 Mass. at 280. Merely arguing that there was “opportunity for substitution of ballots by fraud” is insufficient when “there is nothing in the record to support it or to overcome the presumption of complete regularity.” Swift, 281 Mass. at 281. Moreover, even where there were more votes cast than there were voters according the to the “check-in” and “check-out” sheets, there was an insufficient showing to overturn the election results or call for a new election. Penta, 8 Mass. L. Rptr. 106 (1997).
What Donohue is arguing is that there were more ballots than voters in B4 and B5.2 The number of ballots counted in B4 and B5 at the recount was 773.3 However, the number of people
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2 It should be noted that the polling places for precincts B4 and B5 were in the same room, so it is understandable that ballots from these precincts were boxed after the election at the same
time.
3 According to evidence supplied by Donohue, see Verified Complaint, ¶9[15 and 16, 773 voters voted in the recount between precincts 134 and B5. This figure is arrived at by adding the number of votes tallied at the recount for B4 and B5 and dividing by four to arrive at the number of ballots: (2,104 + 988)14 = 773, In other words, the recount results show that 773 people voted in B4 and B5.
in B4 and B5 who voted was 778, shattering Donohue’s theory that more ballots were counted than there were voters, a mathematical impossibility calling the election into question.
Donohue’s own submissions show that 778 voters were checked off in precincts B4 and B5. See Verified Complaint, Exhibits D2 (B4 checkout showing 480) and D4 (B5 checkout showing 298). So, there is no reason to reopen this matter as there is no evidence that there were more ballots than voters. Thus, the court can and should come to no other conclusion than that the eight ballots Donohue claims could”not possibly have been legitimate ballots that were counted at the recount were indeed legitimate ballots cast by voters at the election that were mistakenly not counted until the recount.
Neither the case law nor the facts support Donohue’s contention regarding the ballot differential between the election and the recount. The ballots were properly counted.
Minus 8-Tally of Donohue’s Remaining Challenged Ballots: 8
The Challenged Absentee Ballots
When, as here, absentee ballots are counted by election officials, “they carry a presumption of validity.” Cotten v. Haverhill, 409 Mass. 55, 60 (1990) . The Legislature has not mandated strict compliance with the absentee voting laws and “has directed courts not to reject a ballot for an ‘immaterial addition, omission, or irregularity.’ Connolly v. Secretary of the Commonwealth, 404 Mass. 556, 562 (1989) (quoting M.G.L. c. 54, § 97). An absentee voter “should not be disenfranchised if he substantially complies with the election law.” McCavitt v. Registrars of Voters of Brockton, 385 Mass. at 844.
To determine substantial compliance, we look to the purposes of the absentee voting laws,,which we have determined to be’ (1) the enfranchisement of qualified voters, (2) the preservation of ballot secrecy, (3) the prevention of fraud, and (4) the achievement of a reasonably prompt determination of election results.
Connolly, 404 Mass. at 562 (citing McCavitt, 385 Mass. at 844). As in Connolly; Donohue makes no claims of fraud.
With these principles in mind, the challenged absentee ballots may be treated as a matter of law as follows:
Two Absentee Ballots without Applications
Donohue claims that one absentee voter was allowed to vote in C8 without filing an application and that the envelope was. not stamped, purportedly in violation of M.G.L. c. 54, §92: Absentee votes may be counted even where an.application is not filed. Connolly, 404 Mass. at 566 (absentee ballots without applications properly counted). Whether the ballot is counted does not hinge on the application, but instead on whether the most important safeguard, the voter’s signed affidavit , appears on the envelope. Id., at 565.
Moreover, the fact that the envelope was not stamped is of no moment whatsoever, for an absentee voter may return it by mail or in person,. so a postage stamp is not required. M.G.L: c. 54, § 92 (a). If what Donohue means is that the envelope was not stamped as received by the Town, that is a ministerial matter for which the voter should not be disenfranchised, See McCavitt, 385 Mass. at 842.
It is important to note that Donohue does not claim that the the affidavit on the envelope was not signed, nor that any other safeguards against fraud were not followed. Under the case law regarding imperfect, but substantially compliant absentee voters, the ballot should be counted.
Donohue claims that a second absentee voter was allowed to vote without having signed the application and it that it “appears” that the signature that does appear on the envelope is not that of the voter. For reasons already discussed, an application is not required. How Donohue can contest the signature on the affidavit without another signature to compare it to is hard to fathom. Without evidence of fraud, the voter should not be disenfranchised because of unsubstantiated suspicions.
Minus 2-Donohue’s Remaining Challenged Ballots: 6
At this stage, Devaney has demonstrated that Donohue cannot meet his burden. He must show at least seven invalid absentee ballots, one over the margin of victory. In the interest of completeness, however, the remaining ballots are addressed.
Three Absentee Ballots with Late Applications
Donohue claims that three absentee ballots were counted despite the fact that the correlative applications were received by the Clerk after 1,2:00 noon the day before the election in violation of M.G.L. c. 54 § 89. See Verified Complaint, 9t28. What Donohue fails to inform the Court is that
the applications were date-stamped by the Clerk by 12:03. As before, this is the only flaw pointed out. Donohue does not claim fraud, nor does he claim that the voters failed to sign the affidavit on the envelope.
Being late with an application doesn’t matter, because as set forth above, absentee ballots may be counted even when there was no application, let alone a tardy one. Connolly, 404 Mass. at 566. The statute in question is an instructive one to the Clerk rather than a disqualification of the voter: to wit: “No application shall be deemed to be seasonably filed unless it is received in the
office of the city or town clerk or registrars of voters before noon on the day preceding the election for which such absent voting ballot is requested.” If the Clerk so chose, he could have refused to issue the late applicants ballots. But he didn’t, instead he accepted their ballots for the count. In fact, there’s a good reason that he accepted the ballots, at least one of the late applicants was a poll worker well known to the Clerk, Mary Destasi, who voted the day before the election so that she could be free to work the polls. Where the Clerk accepts an absentee ballot from someone he knows personally, like a poll worker, the ballot should stand as counted. Id.
There being no claimed fraud or provable and substantial noncompliance with respect to the three absentee ballots, namely the signatures, affidavits and other fraud-safeguarding features, the three absentee ballots cast must be counted.
Minus 3-Donohue’s Remaining Challenged Ballots: 34
Because the margin of Devaney’s victory is six, and the remaining potentially invalid ballots number three, Donohue cannot meet his burden. He had to show that at least seven absentee ballots should not have been counted, one more than the margin of victory, in order to call the results of the recount into question. He has not and cannot. It is not necessary to continue evaluating the remaining challenged ballots.
A victor may be determined even if the remaining three ballots are thrown out. The results of the election are not in doubt, Marilyn Petitto Devaney is Councillor at Large.
4. The premature injunction undermines, rather than promotes, the public interest.
Even if Donohue were able to show that his challenge has merit; the requested preliminary injunction undermines, rather than promotes, the public interest. Certainly, there can be no public interest in overturning a valid recount merely because it resulted in a different victor. That’s what recounts are for. To deem a recount invalid because it doesn’t reconfirm the underlying election results defeats the whole purpose of the recount. There would be no reason to perform a recount. The entire statutory scheme regarding recounts thus would be rendered nugatory. The only recounts that would be allowed to stand would be recounts that duplicated the election results exactly. New elections would be held all the time, rather than almost never.
The recount, by it’s very nature, is a mechanism that recognizes the possibility that
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4 Donohue claims that two inactive voters failed to execute affidavits of continuos residency in violation of M.G.L. c. 51, §59. These votes should not be automatically disqualified. If Donohue had met his burden of seven, a post-recount hearing could be held where proof that the inactive voters met residency requirements at the time of election would validate the votes, despite lack of affirmation forms. Fyntrilakis v. City of Springfield, 47 Mass. App. Ct. 464 (1999). Donohue final claim is that one absentee inner envelope was not signed by the voter. Under the case law considering the issue, it appears that this one vote should not have been counted. See Connolly v. Secretary of the Commonwealth, 404 Mass. 556 (1989).
machine error, human error and human frailty can affect the underlying election’s outcome in a way that thwarts the will of the voters. The recount is a purification process, from which the true will of the voter becomes known. The true will of the Watertown voters is that Marilyn Petitto Devaney take her seat as Councillor-at-Large.
To honor Donohue’s request would undermine the public’s confidence in our democratic process of elections, would deem illegitimate a lawful recount, and undermines, rather than promotes, the public interest.
Conclusion
An election should not be enjoined or invalidated unless the true will of the voting public is not reflected. To set aside an election, a party must prove either fraud which leaves the intent of the voters in doubt or irregularities in the conduct of the election of such a nature as to affect the result. Absent a showing of fraud, undue influence, or intentional wrongdoing, the court should be wary of invalidating election results.
Only when the irregularities are such that a court cannot with reasonable certainty determine who received the majority of the legal votes can a court set aside an election. Here, the will of the voters was expressed in the recount, the margin of victory was six. As a matter of law, the challenged ballots should have been counted. At best, Donohue has only three remaining disputed ballots. To continue with this litigation is futile. The recount result declaring Devaney the victor must stand.
Respectfully submitted,
Marilyn M. Petitto Devaney,
by and through her attorney,
Mary-Ellen Manning
BBO# 559711
P.O. Box 559711
Peabody, MA 01961-3528
(978) 531-6363
Certificate of Service
I, Mary-Ellen Manning, hereby certify that I caused a true copy of the above document to be served upon attorneys for all other parties by hand and by fax on December 14, 2007.
Mary-Ellen Manning