Twelve years ago, in a 24-11 vote, the Maine Senate made the final decision to seat a candidate following a contest decided by a razor-thin margin on election night that remained in dispute following a recount.
A bitter taste remained in the mouths of Senate leaders from the party of the candidate ultimately determined to have lost the election.
“As it stands now, the majority party in the Maine Senate wins contested elections,” those Senate leaders wrote in an OpEd published by the BDN. “It does so first by ‘provisionally’ seating their candidate involved in the recount and allowing him to vote for or against motions relating to his ability to serve. The majority party then continues to stack the deck in its favor by establishing the partisan makeup of the Senatorial Vote Committee, which is responsible for resolving disputed Senate elections. A committee of four members from the majority party and three from the minority cannot be expected to review contested ballots objectively.”
In 2002, Democrat Chris Hall led Republican Les Fossel by two votes after election night in the race to represent Lincoln County in the state Senate. Following a recount, Hall’s lead expanded to nine votes, but 44 ballots remained in dispute — more than enough to swing the contest.
It fell to a special seven-member Senate committee — four Democrats and three Republicans, since Democrats ostensibly held the majority — to inspect the 44 ballots and determine the voters’ intent. While the committee voted unanimously to declare Hall the winner, there were eight votes on which the committee’s members couldn’t agree. And since Hall’s final margin of victory was seven votes, those eight votes conceivably could have changed the election’s outcome.
That fact didn’t sit well with the Senate leaders who wrote the BDN OpEd following the election dispute. In that essay, Paul Davis and Chandler Woodcock, then the Senate’s Republican leader and assistant leader, wrote that the episode had eroded some of the public’s trust.
Fast-forward 12 years, and the partisan tables are reversed as a new slate of senators prepare to take the oath of office Wednesday. Republicans hold a comfortable majority in the Senate, and they are preparing to provisionally seat their candidate in the disputed race for Senate District 25 between Republican Cathy Manchester of Gray and Democrat Cathy Breen of Falmouth. The Senate committee preparing to review the contested votes will include four Republicans and three Democrats.
The nature of the ballot dispute isn’t the same, but the circumstances align well enough to know there won’t be universal confidence in the election’s final outcome if the same partisan structures that determined the disputed election in 2002 also settle the Breen-Manchester contest.
Twelve years ago, Davis and Woodcock offered some alternatives for settling the election dispute in an effort to remove the partisan pall cast over the matter and bolster public confidence. In addition to proposing a more public review of the disputed ballots by the full Senate, they suggested appointing an independent third-party observer as the seventh member of the Senatorial Vote Committee to remove the majority party’s edge. Or, they said, the Maine Supreme Judicial Court could review the disputed ballots and offer the Senate an advisory opinion.
“In addition to resulting in a much less partisan and more open set of deliberations, these proposals would have allowed for a speedier resolution to this divisive issue,” Davis and Woodcock wrote.
The Senate didn’t agree to any of Davis’ and Woodcock’s proposals 12 years ago, but its members could insist on variations of one or more of them now. The seven-member committee appointed to settle the disputed election has the responsibility of producing an outcome in which the public has confidence. The partisan structures that currently govern election disputes aren’t set up to produce that outcome.
Public confidence in the election results is at stake in this matter, and there’s no way to preserve it without substantial intervention by a credible and independent third party.