UNFINISHED BUSINESS

After a difficult recount and two court decisions, Democrat Christopher Hall was certified Tuesday as having nine more votes than his opponent, Republican Leslie Fossel, in Senate District 16. Mr. Hall, along with the other 185 legislators elected Nov. 5, will be summoned to the Capitol next Wednesday to be sworn in, he as a provisional member.

In January, when the session begins, 44 disputed ballots will be reviewed by a Senate committee of four Democrats and three Republicans. That committee’s findings will be voted upon by the full Senate, in which Democrats, including the provisional member, hold an 18-17 edge.

So, barring something unprecedented in partisan politics – a candidate not voting for himself, a party voting itself out of power – it’s over.

Over, but unfinished business remains. This recount process, and several other occurrences this election, has revealed flaws in the electoral system the Legislature must fix.

The most obvious flaw – the one that made this recount difficult and was the basis of the court challenges – is the issue of determining voter intent when a ballot is marked in a way not letter-perfect – a name circled instead of the arrow filled in, stray marks, pens with the wrong color ink. Should a clearly marked vote in one race be discarded because a vote in another race on the same ballot was bungled? Why should a ballot be tossed because the voter mistakenly wrote his or her name at the top, like a homework paper?

Such ballots are disputed in every recount and in every recount they are treated as flukes. Close races happen, recounts result, ballots not counted the first time inevitably come into play. It is time Maine had a method in which voter intent can be determined in a way that the public can perceive as fair and impartial – never again should a ballot be tossed because local poll officials bought red pens.

Although the Constitution makes it clear the House and Senate are the arbiters of their membership, guidance can be helpful. Provisions for lawmakers to hear advisory opinions on voter intent – say from the judiciary or a panel of esteemed public figures or just ordinary citizens – should be made in advance. The prohibition against ballots being put on public display may be a sound protection against tampering; one has to wonder whether just the threat of publicly displayed photocopies would settle some of the more nitpicky partisan challenges before they arose.

Though not related to District 16, election 2002 revealed other defects in need of repair. Precisely what information the voter must provide for a write-in vote – the candidate’s middle initial, street address, favorite color – remains a pointless mystery. If Maine needs a law to prevent its secretary of state – the state’s chief election officer – from using the job title in campaigning for candidates, let us, by all means, get such a law.

This was a difficult election, hard-fought and, in too many cases, needlessly ugly. The next Legislature has a difficult session ahead of it and cannot afford ugliness. Republicans have been as gracious as circumstances allow in withdrawing their remaining court challenges in District 16. Democrats, who will control both chambers of the Legislature as a result, can reciprocate by marshaling through the election reforms that will make such challenges unnecessary.