AUGUSTA, Maine — Who will fill a Falmouth-area Maine Senate seat that was the subject of a ballot recount Tuesday and how the issue will be decided was unclear on Wednesday, in part because there is little or no precedent for state officials to follow.
Secretary of State Matt Dunlap, a Democrat, worked with the attorney general’s office Wednesday to determine who will be seated in the Senate District 25 seat when legislators swear in on Dec. 3. At issue is the election between Republican candidate Cathy Manchester of Gray and Democrat candidate Catherine Breen of Falmouth for the open Senate District 25 seat.
Breen at first appeared victorious by 32 votes, according to unofficial results tallied on Election Day. However, a ballot recount on Tuesday, which was requested by Manchester, appeared to overturn the result and hand the election to Manchester by 11 votes.
Breen is contesting the tally, in part because the recount apparently uncovered disputed and missing ballots.
If Manchester is declared the winner, Republicans would have a 21-14 majority in the Senate, the party’s largest Senate majority since 1977.
The core questions that emerged Wednesday were who would be seated until the issue is resolved and what process will be used to resolve it.
Dunlap said Tuesday night that Breen would be seated provisionally because she was the apparent victor on Election Day and the recount results remain contested.
Kristen Schulze Muszynski, spokeswoman for the secretary of state’s office, said Wednesday the attorney general’s office was reviewing who should be provisionally seated.
Muszynski said Wednesday afternoon that the committee would be comprised of four Republicans and three Democrats.
Because both candidates did not agree to the recount results, a vote of the full Senate will ultimately determine District 25’s senator for the next two years.
“For now, the result of this election remains in dispute,” Muszynski said.
This isn’t the first time recounts in legislative races have failed to yield a clear winner. According to records kept by the Maine Legislative Law and Reference Library, at least 13 House and Senate elections in the 20th century remained unclear after recounts.
In many of those cases, the apparent winner according to election night tallies was seated until the matter could be resolved, though in 1977, both candidates declined to be seated until there was a result.
In most cases, the election was decided by a House or Senate vote, after a recommendation from an appointed committee. In 1990, however, the House could not make a decision, and a then-District 90 election had to be repeated.
In 2002, Republicans contested recount results that affirmed election night tallies that showed Democrat Christopher Hall of Bristol defeated Republican Leslie Fossel of Alna by two votes. There were 44 disputed ballots. A Senate committee examined each ballot and unanimously recommended that Hall be seated.
The matter didn’t go so smoothly when the issue went before the full Senate on Jan. 13, 2003, according to a record of that day’s session. After a debate, the Senate voted 24-11 to seat Hall.
Some senators, including Republican Paul Davis of Sangerville — who was re-elected to the Senate this year — called for a work group to study the recount process and suggest improvements. The Legislative Law and Reference Library could not immediately locate the results of any such study or report.
“I call on the entire membership of this body to work with me and the others to achieve some meaningful reform of this process so we don’t have to go through this again,” Davis said in 2002.
Then-Sen. Rick Bennett, who is now chairman of the Maine Republican Party, was among those who voted against seating Hall.
“The fundamental reason is that I do not know, after all of this time, who actually won this election,” Bennett said. “I believe that the Senate has failed in doing a thorough review of the election returns, all of them.”
Maine Democratic Party spokeswoman Rachel Irwin said Wednesday that Breen and the party contested the recount results because the recount showed that up to 10 ballots went missing between Election Day and the recount on Tuesday. Irwin said Democrats requested a second recount of ballots from two towns in the district on Tuesday, but Republicans refused.
“Every vote that was there on Election Day needs to be part of the recount, and that was not the case [Tuesday],” Irwin said. “There were up to 10 ballots that were not accounted for. There is a path to victory for Breen. … We just want to ensure that every single vote in this district and across the state is counted.”
Former lawmaker Joshua Tardy is an attorney representing Manchester and Senate Republicans in the matter. He said Wednesday he and others await analysis of the situation by Attorney General Janet Mills, a Democrat, or her staff. Tardy argues Manchester should be seated in the Senate in the meantime.
“Cathy Manchester is the apparent winner at this time,” Tardy said. “She should be provisionally seated, but certainly we’re all open to hearing the interpretations. This is a situation that is not common. There’s no bad faith as people are trying to interpret this. … Sen. Thibodeau and the Republican caucus want to make sure that consideration of this close election is done in an open, transparent and appropriate manner.”
Senate District 25 includes Chebeague Island, Cumberland, Falmouth, Gray, Long Island, Yarmouth and part of Westbrook.
