GOP files suit over key Senate recount

AUGUSTA – Many of the ballots that were ruled invalid or not counted for other reasons in a pivotal state Senate election should be ordered counted, Republicans said in a legal brief filed Sunday.

If those ballots in the disputed District 16 election are counted, Republican candidate Les Fossel will win, according to Republicans who filed a lawsuit in Cumberland County Superior Court in Portland. A hearing is scheduled for Monday.

Democrats disputed the Republicans’ claims in their response.

The court papers were filed a day before a recount was to resume in Fossel’s race against Democrat Christopher Hall of Bristol. The outcome will determine which party wins a majority in the 35-member Senate, which currently is split at 17 seats each.

A Democratic win would give the Democrats considerable sway over the State House agenda for the next two years because they would occupy the Governor’s Office and form the majority in both houses of the Legislature for the first time since 1986.

Unofficial Election Day tallies gave Hall a two-vote margin over Fossel. A recount that began last Monday was halted the next night when the two sides failed to agree on how to count 63 disputed ballots. At the time, Hall was nine votes ahead.

Fossel’s suit claims Democrats tried to take a number of ballots out of play during the recount by challenging them for invalid reasons.

“We are asking the court to recognize it’s not proper to take votes out of the count by disputing them,” said Mark LeDuc, counsel for Senate President Richard Bennett, R-Norway.

Sunday’s court filing also says at least 19 of the 63 disputed ballots should be counted for Fossel, of Alna. Among them are eight ballots that were marked void because they were cast in ink instead of pencil, LeDuc added.

Use of ink instead of pencil does not make a ballot void, invalid or defective, he said.

The civil suit says state law clearly outlines when ballots should and should not be counted, and cites numerous examples of ballots that should have been counted but were not.

The suit asks the court to order the Secretary of State’s Office, which oversees elections, to correct the problem.

“I think their claim amounts to, ‘We want the court to rule that all of the possible Fossel ballots are valid and all of the possible Hall ballots are invalid,'” said Hall, who is finishing a House term.

His attorney, Jonathan Hull, said Democrats will argue that the court doesn’t have jurisdiction in the case because it’s up to the House and Senate to seat their members.

“They’re trying to basically evade a constitutionally mandated process,” said Hull.

Hull added that the challenge is “wildly premature” because it’s being raised in the middle of a recount, which is to resume Monday afternoon in Augusta.

Amid the civil suit, independent Gov. Angus King is awaiting the Maine Supreme Judicial Court’s guidance on his legal role in certifying an apparent winner of a legislative election.

Monday is the deadline for the Secretary of State’s Office to certify election results, which then are sent to the Governor’s Office for his review. King is concerned about his duty in summoning apparent winners to the Capitol so they can be sworn in Dec. 4.

Summoning either candidate based on apparent election results could give his party a major edge in deciding who is formally seated.