Text of emails (verbatim) on Sangerville election

March 31, 2014
Good morning, Legal Dept.
    We had our Annual Town Meeting on Saturday (3-29-14) and we had an issue come up regarding the Election of a Selectman. Two persons were nominated.

    Sangerville has a population of 1,200.
    There were a total of 70 ballots cast. The breakdown is as follows:
Person #1 received 34 votes.
Person #2 received 33 votes.
Invalid votes: 3 ballots.
    After all the ballots were counted, the Moderator announced that person #1 was the winner because they had the majority – plus one vote.
    Person #2 wants to appeal this vote.
    Can they? What are their options?
    What is their time limit? What does this person have to do?
    Will the Town have to have a Special Town Meeting?
    Could you please help me and get back to me as soon as possible.
    As always, thank you for all your help.
Sincerely,
Alvina Church
Sangerville Town Clerk

Dear Alvina,
    If this election took place at a traditional “open” town meeting, and if the meeting was finally adjourned, there is no statutory method available for anyone to “appeal” the results. The Moderator’s declaration of the winner became final upon adjournment of the meeting.
    The only way to challenge the election now would be to bring suit in Maine Superior Court for a declaratory judgment that the election was somehow legally flawed. Any would-be challenger should consult his or her own private legal counsel for advice.
    I hope this answers your question, Alvina. Please let me know if you have anything further.
Best regards,
Richard P. Flewelling, Assistant Director
Legal Services Department
Maine Municipal Association

April 3, 2014
Attorney Flewelling:
    Thank you for your prompt advice to our Town Clerk Alvina Church. I have relayed your opinion to the party involved in wanting to challenge the vote and he has requested a special board meeting to conduct a review.
    The board is willing to review this at their April 8 meeting though I have advised them that they have no power to reverse the outcome at this point.
    I think they are straining to appear open-minded and “transparent” and will have the town clerk re-open and recount the ballots. I believe they feel that this will lay the matter to rest, but I fear it only gives an opportunity for new controversy.
    My reading of title 30-A MRSA 2525 is that there is a provision for five days appeal and recount but only if the election was a “secret ballot” election as described in section 2528.
    I am planning to caution them to take no action whatsoever even if they find a different count than the meeting.
    One of the selectmen thinks that the recently elected selectperson should not take part in this and I feel differently since no legal papers have been served on us to take the matter to Superior Court under section 2533 and that person is duly sworn in.
    Although this situation is unfortunate and I probably should not voice my opinion as I have, I would appreciate your thoughts and advice on how to proceed.
Thanks again for your good advice.
Dave Pearson
Manager

Dear Dave,
    You are correct on both counts: (1) there is no legal recount procedure available in this case, and (2) the Selectmen have no legal authority to reverse the results or order a new election. The only available legal remedy here is for the challenger to bring suit in Superior Court.
    For these reasons, I think having the Clerk “recount” the ballots under the Selectmen’s “review” is probably inadvisable because it may mislead people into thinking that the Selectmen have some legal role in such matters (they don’t).  In my opinion, there is no legitimate reason to involve the Selectmen in this case.
    As I have previously advised (see my April 2, 2014 email to the Clerk), the ballots in this case are public records and may be inspected by anyone, including the challenger, at any time.
    My advice is that any such inspection be conducted in the presence of the Clerk but not at a Selectmen’s meeting.
    I hope this is helpful, Dave. Please let me know if you have any further questions.
Best regards,
Richard P. Flewelling, Assistant Director
Legal Services Department
Maine Municipal Association