Editorial requires a recount

A recent editorial was critical of Maine’s vote counting process. I have been involved in this process as a state senator, as legal counsel to the president of the Senate and as a private attorney representing candidates in recounts. As a result of this experience, I come to very different conclusions.

The first count of ballots is made by our neighbors at the local voting place. Over the years, the secretary of state has conducted classes for local election officials and as a result not one election has been overturned this year.

The secretary of state tabulates the numbers sent to him by our local officials and compiles a list of apparent winners. Losing candidates may request a recount, but contrary to popular opinion, the secretary of state does not recount the ballots. The secretary’s staff only watches and keeps records while the parties recount. If there is a question of how a ballot should be counted, it is set aside until the parties can agree. If the parties agree upon a winner, he or she is then the apparent winner, not in the judgment of the secretary, but by agreement of the parties. If no agreement is reached, the original count stands for the purpose of initially seating a member.

Almost all recounts are settled by agreement, because, contrary to your editorial, Maine ballot law is well settled. The legislature has passed laws which make voter intent the touchstone and the Maine Supreme Court has applied that standard to different ballot mistakes. These court opinions are used by the lawyers in recounts to settle differences. This guidance also extends to elections with write-in candidates. Maine law is now so clear that in most state Senate races there will only one or two ballots with an honest dispute on whether and how the vote should be counted.

So what happened in the Senate District 16 race? That race was hotly contested so initially the lawyers made all possible objections, but they were working their way through them and would have gotten down to a handful of disputed votes if the Republicans had not made the tactical decision to move their dispute to the courts.

We rely on the law and court decisions in recounting legislative races because the Maine House and Senate always rely upon them. Your editorial misses the point when it opines that the Democrats in the Senate will not do an honest count in the District 16 race because “a party will not vote itself out of power.” That is not the question that will be before the Senate. The Senate will decide whom the voters in District 16 elected. If there are one or two ballots upon which honest men and women could disagree, will the Democrats be inclined to default to the initial decision made by the local officials whose count gave the race to the Democrat, probably yes. Will the Democrats disregard the law in order to elect a Democrat, certainly not.

Before we accept the cynical point of view, we should ask why drafters of the Constitution of the United States and that of every state gives lawmakers the power to decide who won elections to the body in which they will serve. It’s because these drafters never put their faith in people who claimed to be disinterested. They believed in putting power with the people who had the greatest interest. So in the case of the Maine Senate, the constitution leaves the decision with those with the greatest stake in preserving the power and respect of the Senate: the people who serve there.

In a democracy authority flows from the legitimacy of elections. Being in the majority is an interest of every Senator, but it is no where near as great an interest as being perceived as the embodiment of the public will. Will all senators see it this way? Probably not, but remember only one Democrat would have to see it that way in order to provide a majority to overturn the District 16 election if an honest count clearly points to the Republican as the winner.

It is human nature to want someone with godlike disinterest to resolve disputes. Gov. King asked the court if he could add his “disinterested” guidance. The court said no. Now the Bangor Daily News suggests some citizen panel as Solomon. The problem is that everyone has interests and predispositions. Did the United States Supreme Court help make the losing voters feel better about the Bush selection, because they claimed disinterest? No, they just left the Gore voters feeling powerless because the decision was made by unelected officials.

The Legislature should look to the law and settle the races before them, and then get on with the business of balancing the budget and doing something about the health care crisis. The vote counting process is one of the few things that isn’t broken and doesn’t need fixing.

Phil Merrill of Appleton is a Democratic attorney.