AG finds no bar to court’s jurisdiction in recount

AUGUSTA – Responding to a state supreme court request, Maine’s attorney general has told the justices he believes the state constitution does not bar them from assuming jurisdiction in appeals stemming from legislative primary election recounts.

But Attorney General Steven Rowe and his department also told the justices it is arguable whether state law specifically gives such jurisdiction to the court.

“In summary, we believe the court is not precluded by Maine’s constitution from taking jurisdiction of appeals from primary election recounts … Whether the statute confers jurisdiction on the court to resolve these cases is a matter of statutory construction.”

Rowe’s memorandum of law was filed this week in answer to a law court procedural order dated July 6. In that order, the court solicited advice from interested parties and directly asked the attorney general to file his view.

“A question has been raised regarding the proper tribunal for resolving legislative ballot disputes in primary elections,” the court said.

“There is no question that the court does not have the authority to resolve ballot disputes in general elections for the House of Representatives and the Senate. … The disputes presented here, however, involve primary elections,” the court said.

“Although the court has on at least one prior occasion adjudicated a primary ballot dispute, the jurisdictional issue has never been addressed by the court,” the procedural order over Chief Justice Leigh Saufley’s name said.

One election still pending a final determination is the Senate District 20 Republican contest between Dana Dow of Waldoboro and Leslie Fossel of Alna that gave each candidate 1,834 votes. Four ballots remained in dispute.

Another clouded election focuses on Democratic write-in candidate Kim Bagley of Machias in Senate District 29. Needing a minimum of 200 votes to earn a place on the November ballot, Bagley was awarded 173 votes on Election Day but in a recount of 279 ballots that were marked in some way she claimed 211 as votes for her.

A third case is based on a recount in the House District 137 Democratic primary election between Richard Rhames and Alan Casavant, both of Biddeford, that left Rhames ahead by two votes with three ballots disputed.

While the matter of court jurisdiction is under review, Justice Paul Rudman has been assigned to “coordinate the gathering of facts and legal arguments regarding the individual ballots in dispute” from June 8 voting.

The court’s procedural added that, “following the presentation of facts and any oral and written argument through Justice Rudman, we will resolve the dispute with regard to each of the three disputed races if we conclude that the Court has jurisdiction to do so.”

Finding the law unclear on whether jurisdiction is meant for the Legislature or the court, the attorney general said statutory language “is susceptible of either interpretation.”

Rowe’s memorandum said the Attorney General’s Office had looked at legislative history from the 1913 enactment of the first direct primary law to the 1993 passage of Maine’s current recount statute.

Legislative history “indicates to us that during that period the Legislature did not direct primary disputes to itself for resolution,” the attorney general wrote.

“Viewed in that context, the language and the history of the recount statute now in effect reveal no legislative intent to take on the responsibility for handling appeals from primary election recounts,” the attorney general wrote.