Plaintiff's Brief
Statement of FactsIn certifying the July Mideast Assembly election results, acting Governor TJ in Cleve failed to count first preference votes in favor of Al, instead transfering them directly to those voters' second preferences.
[1] Al never declared his intention to accept write-in votes; however, Franzl implicitly did so by casting a write-in vote for himself.
In transfering votes for Al to first preferences for Franzl, this allowed Franzl to make it past the first round and go on to win the third seat. Inks.LWC had three first preference votes, while Franzl had one; thus, Franzl would have been eliminated before Inks.LWC, and Inks.LWC would have won the third seat had Franzl been eliminated earlier in the counting.
Question PresentedWas counting first preference votes for Al as first preference votes for Franzl contrary to Mideast law?
Short AnswerYes. This Court held in
Badger et al v. Inks.LWC, 2009 ME 1, that votes for candidates who have not accepted write-in votes "should be seen as a legal nullity, or as having no valid first preference". While
Badger was decided under a different set of election laws, the principles behind that decision remain applicable in the case at bar.
ArgumentThe relevant election statute in the case at bar is the
Transition to PR-STV Act, A.R. 6 of the 27th Assembly. Section 3, cl. 3 of the Act states, "A first count shall then be made quantifying the total number of first preferences each valid candidate did receive. Any candidates receiving more than the quota shall be deemed elected." The statute then goes on to lay out what the voting booth administrator is to do in the event of ties and how to transfer votes cast for candidates who have reached the quota to be elected or who have been eliminated. Nowhere in the statute did the Assembly grant the voting booth administrator the power to transfer votes of candidates other than those who have been eliminated or who have reached the quota. The statute, however, directly states how the first count should be conducted: only the total number of first preferences for "each valid candidate" should be counted. Because Al did not accept write-in votes, he was not a valid candidate. Because he was not a valid candidate, his first preferences could not be passed on to any valid candidates, because only surplus votes (which would not apply to Al) or votes cast for "eliminated candidate"s can be distributed. Al could not be eliminated, because he was never a valid candidate to begin with.
Section 1, cl. 5 of
The Mideast Elections Consolidation Statute, A.R. 2 of the 4th Assembly, reaffirms this by stating, "In order for write-in votes for a candidate to qualify as countable votes, the person written-in must formally accept the write-in candidacy before the end of voting in the given election."
In
Badger this Court held that votes for candidates who do not (more specifically, in
Badger, cannot) accept write-ins "should be seen as a legal nullity, or as having no valid first preference".
Opposing counsel will likely argue that
Badger no longer applies because the region now uses a PR-STV system of voting instead of the former method of vote counting. While this is true, the relevant section of The Mideast Elections Consolidation Statute, Section 1, cl. 5, remains in effect today; furthermore, as stated above, there is no provision in the Transition to PR-STV Act that permits a voting booth administrator to transfer first preferences from an invalid candidate to the next highest valid candidate on the voter's ballot. Unlike in
Badger, this means that where a voter first preferences an invalid candidate, his whole ballot is spoiled, because there is no statutory provision to eliminate invalid candidates, whereas in the election scheme in
Badger, the voter's second, third, (and fourth and fifth votes, if applicable) would be validly counted in subsequent counting rounds. While this is an unfortunate oversight by the Assembly in its adoption of the Transfer to PR-STV Act (and one which merits fixing), neither the Governor, nor this Court, has the constitutional or statutory authority to ignore clear provisions of the laws of the region, especially when doing so would be at the expense of valid candidates.
Opposing counsel may argue that this interpretation of the law will lead to the intent of the voters being violated. This, also, is not true. Three voters cast their first preferences for Inks.LWC, while only 1 did so for Franzl. To say that it was the will of the voters to elect Franzl instead of Inks.LWC is simply not accurate.
ConclusionThe job of acting Governor TJ in Cleve, during the first round of counting, was clear: he was to tally the number of first preferences that each valid candidate received. Al was not a valid candidate, and those votes should have been seen as "legal nullit[ies]". There is no way that votes for Al could have transfered to any other candidate, because Al could not be eliminated or reach the quota. Thus, Franzl should have been eliminated before Inks.LWC, and Inks.LWC should have won the third seat.
Request for ReliefPlaintiff requests that this Court direct the Governor (or acting Governor) to recertify the July 2014 election results by counting ballots that cast first preferences for write-in candidates who did not publicly accept write-in votes as legal nullities and to declare Inks.LWC a winner in the election.
