Late absentee ballots shut out by swing vote on Senate panel

AUGUSTA – The lone independent on a Senate committee charged with determining the outcome of a disputed Senate election may have effectively dashed Republican claims to the seat Wednesday after she refused to consider the inclusion of 36 absentee ballots received after the polls closed.

By Wednesday’s end, the special panel also had gone over 26 of another 37 disputed ballots, awarding 10 to the Democratic contender and nine to the Republican, extending the Democrat’s lead to 12 votes. A Democratic victory in the race would give the party an 18-to-16 edge over Republicans for control of the Senate the remainder of this session.

After a Tuesday evening session that ran from 4:30 to 11:30 p.m., Sen. Jill Goldthwait, a Bar Harbor independent, decided to reject Republican assertions maintaining that the committee’s failure to consider the absentee ballots disenfranchised the voters who mailed them and violated the equal protection clause of the U.S. Constitution.

For Goldthwait, the seventh member of the Senatorial Vote Committee that is balanced by three Republicans and three Democrats, the question of whether to embrace the Republican position pivoted on how the committee would proceed beyond the vote to include the absentee ballots.

“We could follow state law, which we were not required to do, or we could create some other set of parameters, but as soon you went there you then have to determine what the criteria would be: ballots that arrived within 24 hours of the deadline? Forty-eight hours? Seventy-two hours?” she asked. “It began to open up all kinds of subjectivity about which the committee would have a hard time agreeing. We would have to then decide what to use as a guideline. If not the law, which is already clear and in place, what would we create instead?”

With no clear answer to that question forthcoming, Goldthwait joined Democrats on the panel to produce a 4-3 majority against including the absentee ballots in the committee’s deliberations.

The panel also worked into the early afternoon Wednesday, scrutinizing 26 of 37 disputed ballots cast in the District 27 race which has resulted in the conditional seating of Michael Brennan, a Portland Democrat, in the Maine Senate.

With only 11 more ballots to be reviewed, Democrats said Brennan could not lose the race against Sally Vamvakias, a Republican from Falmouth.

But Republicans said the District 27 race is still far from over. They said seven of the 26 ballots reviewed remain challenged and that they could still make the difference for their candidate.

The committee is expected to continue and possibly conclude its work today.

In January, a vacancy opened in the Senate when Sen. Joel Abromson, a Portland Republican, died after a long battle with cancer. Abromson represented District 27, which includes Falmouth, Long Island and part of Portland. A special election to fill his seat was held March 5 and the results were contested by the top two finishers. On March 11, state election officials concluded that Brennan, a former four-term state representative, had defeated Vamvakias by 11 votes. The final tally gave Brennan 3,265 votes and Vamvakias, 3,254. Thirty-seven of the ballots were disputed, 18 by Brennan, 18 by Vamvakias and one by both.

Complicating the dispute was the discovery of numerous absentee ballots that had been postmarked before the polls closed on Election Day, but not delivered by the Portland post office until after March 5. Thirty-six of the absentee ballots, many of which reportedly were cast by Republicans, were postmarked on or before March 4, according to GOP officials.

Because the number of disputed ballots is greater than the number of actual votes separating the two candidates, the Maine Constitution requires the Senate to determine the outcome of the election through a standing committee known as the Senatorial Vote Committee. Brennan was seated conditionally March 12, changing the Senate’s political division from 17-17-1 to 18 Democrats, 16 Republicans and one independent.

A power-sharing agreement reached in December 2000 pre-empts the possibility of leadership positions or committee chairmanships changing as the result of Brennan’s seating. But his inclusion in the Senate can tip some of the remaining votes left in the last few weeks of the session in the Democrats’ favor. Both parties are already looking ahead to the November election and realize the advantage an incumbency can provide. Brennan and Vamvakias have taken out papers to run for the District 27 seat again this fall.

In an effort to determine how the panel should construct its ground rules, the committee sought advice from former Maine Supreme Judicial Court Justice Daniel Wathen. Wathen told the committee it was clear to him that the Maine Constitution allowed the Senate the full authority to determine the winner of the District 27 race. The committee members were free – but not obligated – Wathen said, to rely on Maine law to guide their decisions. They also are free, he said, to construct their own guidelines as long as they complied with the state and federal constitutions.

Republicans wanted to pursue an imaginative approach which allows the committee to devise its own evaluation standards with the hope of including the 36 absentee ballots, most of which were cast by Republicans. Democrats on the panel preferred to rely on state law, particularly the section that stipulates no absentee ballots will be considered if they arrive after the polls are closed.

In an attempt to obtain more information before making her choice, Goldthwait was permitted to look at the outside of envelopes containing the absentee ballots Tuesday night. She said Wednesday the inspection was invaluable to reaching her decision.

“Some of the postmarks were not readable,” she said. “Another had a postmark from Winterport and Portland. It raised all kinds of questions that are not answerable. It became increasingly clear to me that we would not be able to create objective parameters by looking at ballot envelopes. Therefore the only place to go was to say that state law would be the parameter.”

Goldthwait’s choice disappointed Republicans on the committee, who ultimately joined Democrats and the Bar Harbor senator in unanimously endorsing a motion requiring the panel to make its decisions based on current state law. Sen. Kevin Shorey, R-Calais, said he felt badly for those who had cast their ballots with the expectation that they would be counted. He stopped short of accusing the post office in Portland of intentionally failing to send the GOP ballots to the polling place on time.

“You have X amount of ballots that did not arrive and they’re all from one party,” he said. “You can draw your own conclusions from that, but I’m sure other people will be looking into this.”

Sen. Anne M. Rand, D-Portland, who served as chairwoman of the Senatorial Vote Committee, was visibly relieved Wednesday when it became clear her panel would not be venturing into the unknown territory recommended by Republicans.

“It really wasn’t our job to change the guidelines beyond what was offered to us under state law,” she said. “I didn’t really believe that that was the job that we were supposed to do. I know we could have ignored state laws, but I’m very gratified that we didn’t.”