AUGUSTA – Even as Gov.-elect John Baldacci bathes in the state’s political spotlight, a crucial and unresolved dispute in a state Senate race potentially has set the stage for Gov. Angus King to deliver a powerful final encore as he finishes his last eight weeks in office.
King, an independent who is constitutionally barred from seeking a third term as governor, is required by law to certify the results of the Nov. 5 elections by Tuesday. The usually ceremonial task will allow the apparent winners in the Maine House and Senate races to be sworn into office Dec. 4.
Regardless of ballot recounts in several races, Baldacci, a Bangor Democrat, is expected to enjoy the support of a Democratic House whose members outnumber Republicans 80-67. But in the Senate, the balance of power is divided between 17 Republicans and 17 Democrats. A decision in the hotly disputed District 16 race has yet to be reached despite two days of recounting ballots that have given Chris Hall, a Bristol Democrat, a nine-vote lead over his GOP opponent, Leslie Fossel of Alna.
There are 63 disputed ballots and four uncounted ballots that could be included in a Senate recount to erase Hall’s lead. Republicans claim numerous Democratic challenges to votes cast for Fossel were not based on confusion over voter intent, but rather on technical grounds inconsistent with balloting instructions.
Senate President Rick Bennett, R-Norway, asked King on Wednesday not to certify Hall as the apparent winner in the race until the governor personally has inspected the disputed ballots or sought the advice of the Maine Supreme Judicial Court concerning which ballots should be counted.
“I think the governor has a very important role here,” Bennett said. “He may be the last legal hope to avoid this stealing of the election. He has the moral authority and there are certainly 63 votes here that deserve to be counted.”
Kay Rand, King’s chief of staff, said the governor and his top aides were studying the question Wednesday.
“The constitution envisions a role for the governor,” Rand said. “We’re reviewing the case law to see what options the governor has. He has viewed this function as primarily ministerial. And we have signed certificates when there were still ballots in dispute that would have shifted the race in a different direction. Our initial review suggested the governor’s role was fairly limited. … But it’s not black and white and we will use all due diligence to make sure that we comprehend thoroughly what options the governor has before he decides which one he will exercise.”
Democratic Senate leaders said Wednesday there was no need for the governor to challenge the results of a valid recount. But Fossel maintains that if the disputed ballots were included, he would win the race by five votes. Hall countered that any unbiased third party inspecting the disputed ballots would conclude he is the apparent winner. The only legal resolution, according to the Maine Constitution, lies in the Senate, which has the sole power to determine election results and the qualifications of its members. In the past, the House or Senate has assembled a special committee to review disputed ballots in contested elections and to render a recommendation to the full membership for a vote.
Before that vote can take place, according to Senate leaders, the Maine Secretary of State’s Office must forward the election results to the governor for him to certify. Deputy Secretary of State Rebecca Wyke said Wednesday her office will send the results of the District 16 recount to King with an asterisk indicating the number of disputed ballots in the recount and that the outcome of the election remains undetermined. That same process was used two years ago, she said, in a similarly disputed House race in which the apparent winner was provisionally seated pending a review of the disputed ballots by the House.
Although her office does not specifically label any of the candidates as “apparent winners,” the preamble in the statute guiding the duties of the secretary of state identifies all candidates submitted to the governor for certification as “having received a plurality of the votes cast [who] appear to have been elected.”
When asked whether it seemed presumptuous to include Hall among those candidates when there is such a large number of ballots still disputed in his race, Wyke said it was also important to look at the Election Day results. Hall won his race by two votes on Election Day.
“If you look at the recent history, it happens to be similar facts – in that the person who was the winner on election night was also leading after the recount was concluded,” she said. “If those facts were different, I think we would have to look at how comfortable we feel [about the reporting process].”
The Secretary of State’s Office then forwards the tabulation results with any additional qualification it deems necessary to the Governor’s Office. Rand said at that point the governor is required under the constitution to examine the results of the election and “issue a summons to such persons as shall appear to be elected by a plurality of the votes in each senatorial district” to take their seats in the Senate on Dec. 4.
Once the vote is certified, the members can legally be sworn into office with full voting rights. Bennett said that prospect was particularly ominous for Republicans if Hall is sworn into office since his inclusion would give Democrats an 18-17 majority. Democrats then would control the Governor’s Office and both houses of the 121st Legislature for the first time in 16 years.
Any Senate committee reports on disputed ballots in Hall’s race, he said, would have to come back to the full Senate for a vote. Hall already has stated that regardless of the findings in a Senate committee report, he will vote in favor of keeping his seat in what is expected to be a party-line vote allowing Democrats to retain control of the Senate.