In re Appeal McDonough
| Decision Date | 11 February 2003 |
| Docket Number | No. 2002–814.,2002–814. |
| Court | New Hampshire Supreme Court |
| Parties | Appeal of Peter McDONOUGH. |
Nixon Peabody, LLP, of Manchester (W. Scott O'Connell and Patricia L. Peard on the brief, and Mr. O'Connell orally), and Shaheen and Gordon, of Concord (Steven M. Gordon on the brief), for the petitioner.
Stephen J. Judge, acting attorney general (Anne M. Edwards, associate attorney general, and Orville B. Fitch, II, assistant attorney general, on the brief), for the State.
Douglas, Monzione, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and C. Kevin Leonard on the brief, and Mr. Douglas orally), for John Coughlin.
Richard J. Lehmann, senate legal counsel, and Betsy B. Miller, house legal counsel, by brief for the President of the New Hampshire Senate and the Speaker of the New Hampshire House of Representatives, as amici curiae.
Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon by brief), for the New Hampshire Citizens Alliance for Action, as amicus curiae.
The petitioner, Peter McDonough, appeals a decision of the New Hampshire Ballot Law Commission (BLC) affirming the New Hampshire Secretary of State's certification of his opponent, John Coughlin, as the winner of the November 5, 2002 election for Hillsborough County Attorney. McDonough also asks us to exercise our original jurisdiction to address his constitutional concerns about New Hampshire straight ticket voting laws. While this appeal was pending, we temporarily enjoined Coughlin from taking the oath of office. See RSA 653:10 (1996). We vacate the injunction and affirm.
The following facts were presented to the BLC and are relevant to this appeal. McDonough and Coughlin were the two candidates for Hillsborough County Attorney in November 2002. McDonough was the incumbent and the Democratic candidate, while Coughlin was the Republican candidate. Because the initial vote count showed Coughlin received 226 more votes than McDonough, the secretary of state declared Coughlin the winner of the election. See RSA 659:81 (1996). McDonough requested a recount, which the secretary of state conducted. See RSA 660:1 – :6 (1996). The recount reduced Coughlin's margin of victory to 126 votes. See RSA 660:5 (1996). The secretary of state certified Coughlin as the winner, see RSA 660:6, and McDonough appealed to the BLC. See RSA 665:6, II. The BLC held a two-day evidentiary hearing and reviewed 269 ballots that were contested from the secretary of state's recount. See RSA 665:9 (1996).
All of the ballots require a voter to make appropriate marks, by filling in ovals or arrows on the ballot, to be read by an optical scanning machine. (A sample ballot follows this opinion.) All of the ballots have the same layout, which begins with instructions to the voter for marking the ballot, followed by three columns for voting by party, voting on candidates and voting on constitutional questions. See RSA 656:4 – :14 (1996).
The instructions on the ballots provide:
See RSA 659:17 (1996). Each party is identified on the ballot by a symbol, which may be marked to allow straight ticket voting. Each candidate is then identified on the ballot by a square for the designated office, with lines for party designation. See RSA 656:5 – :12. Finally, each constitutional question is identified by text, with an opportunity for the voter to vote "yes" or "no" by filling in the appropriate oval or arrow. See RSA 656:13.
At the hearing, the secretary of state testified about election voting procedures, ballot types and ballot language used in New Hampshire, and explained how he determines voter intent when conducting recounts of contested elections. He testified that it often is difficult to determine the intent of the voter. If the voter has marked the "straight ticket" oval on the ballot, the secretary of state counts any "skipped race" as a vote for the straight ticket party candidate. See RSA 659:66 (1996) (Counting Straight Party Vote); RSA 659:17, III (1996) (Instructions to Voters for Straight Ticket Voting). The secretary of state explained that he applies this rule to all ballots with both "skipped races" and straight ticket votes.
Melissa Lee Farrall, Ph.D., a linguistic psychologist, testified about the confusing nature of the voter instructions on New Hampshire ballots. In her opinion, the voter instructions require at least three years of college to understand. Finally, Paul McDonough testified about the summaries and charts he made to show the significance of the marks cast on each challenged ballot.
McDonough challenged all ballots where the voter: (1) filled in the appropriate mark to vote a straight ticket Republican ballot; and (2) made appropriate marks to vote for individual candidates, either Republican or Democrat; but (3) did not make any mark for candidates in the county attorney race.
McDonough argued that the secretary of state erroneously credited these ballots to Coughlin. He asserted that the challenged ballots with individual votes for some offices, but a "skipped vote" for the county attorney's office, rebutted the presumption that the voter intended to vote a straight ticket in that race. He argued, therefore, that the ballots should not be counted. After the hearing, the BLC, in a two-to-one decision, acknowledged the evidence showed the voter instructions on the ballot are difficult to understand, but upheld the secretary of state's certification of Coughlin as the winner of the race.
The BLC found that "there was not enough evidence presented to overcome the presumption that the voter, by marking the straight ticket party box, intended to vote straight party throughout the ballot despite having also voted for individual races." The BLC explained that, in its view, whenever a straight ticket vote is cast, it may The dissenting member of the BLC opined that the majority applied an improper presumption to determine voter intent on the "skipped race" ballots, which was contrary to its legal duty on an appeal from a recount, and required a new election to be held in the race for Hillsborough County Attorney.
McDonough appeals the BLC's decision and seeks a writ of prohibition to enjoin the BLC from counting such "skipped race" ballots in violation of the New Hampshire Constitution. Alternatively, he requests the court to order a new election.
We first address Coughlin's challenge to our jurisdiction over this case and the parties' disagreement about the appropriate standard of review.
Coughlin argues that we lack jurisdiction over this appeal because RSA 665:14 (1996) does not provide an "express statutory right of appeal to the Supreme Court for the office of County Attorney." "Even assuming the absence of a statutory right of appeal, this court cannot be divested of its power to correct errors of law and other abuses, by writ of certiorari." Taylor v. Ballot Law Comm'n, 118 N.H. 671, 673, 392 A.2d 1203 (1978) ; see Dinsmore v. Mayor and Aldermen, 76 N.H. 187, 189–90, 81 A. 533 (1911). We have adjudicated county election disputes in the past. See Murchie v. Clifford, 76 N.H. 99, 100, 79 A. 901 (1911) (); Stearns v. O'Dowd, 78 N.H. 358, 359, 101 A. 31 (1917) (). Furthermore, the form of the petition to this court is irrelevant to our review of McDonough's legal claims, because "[t]he superintending power of the court over inferior tribunals does not depend upon, and is not limited by, the technical accuracy of designation of legal forms of action." Dinsmore, 76 N.H. at 190, 81 A. 533; see also Sheehan v. Mayor and Aldermen, 74 N.H. 445, 446–47, 68 A. 872 (1908). Parties are entitled to "the most convenient procedure for settlement of their controversy." Dinsmore, 76 N.H. at 190, 81 A. 533. Therefore, we exercise our original jurisdiction in this case because "the parties desire and the public need requires, a speedy determination of the important issues in controversy." Monier v. Gallen,
122 N.H. 474, 476, 446 A.2d 454 (1982) ; see RSA 490:4 (1997). Accordingly, we treat McDonough's appeal as a petition for a writ of certiorari.
By granting certiorari review, we also settle the parties' disagreement about the appropriate standard of review we should apply in this case. Contrary to McDonough's request that we conduct a de novo review of the challenged ballots, voter intent presents a question of fact, not a question of law. See Broderick v. Hunt, 77 N.H. 139, 141, 89 A. 302 (1913). In the context of a writ of certiorari, we will not conduct a de novo review of the evidence presented before the administrative tribunal. We...
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