Merrimack Superior Court to rule on contentious House recount

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Attorney Bill Christie argues that no additional recounting should occur and the Democratic winner announced last week by the secretary of state should stand. Photo/Steven Porter, Granite Memo

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CONCORD, NH – Merrimack Superior Court Judge Amy Ignatius will decide “quickly” whether a recount of a contentious House race can proceed, she said Monday, after hearing arguments from the state and lawyers representing the candidates.

“It sounds like this is an unusual and messy situation,” Ignatius said Monday.

The hearing came after Democrats Maxine Mosley, a candidate in the Ward 6 race, and Sen. Donna Soucy filed a lawsuit seeking to block the additional recount from resuming.

“We need certain finality in our elections,” said Bill Christie, a lawyer representing Mosley and Soucy. Christie argued that there was no evidence a mistake was made in the recount – a claim that was contested by both lawyers representing the Secretary of State and the Republican candidate, Larry Gagne.

They argued the recount isn’t finalized until all votes have been counted.

“The purpose of a recount is to ascertain the will of the people, not have technicalities destroy the process,” said Myles Matteson, a lawyer who works for the Attorney General and is representing the secretary of state.

“There’s no state interest in having technicalities prevail over confirming that the person who got the most votes is going to serve,” said Rick Lehmann, the attorney representing Gagne. “The state’s interest is exactly the opposite.”

The House seat representing Manchester Ward 6 has been the subject of ongoing uncertainty. The election night count had Gagne beating Mosley by 23 votes. A recount last Monday appeared to reverse that result, with Mosley winning by just one vote. With another seat flipping to Democratic control, Republicans have a razor thin 200-199 majority in the House with one seat undecided after a tied race.

Three days later, Secretary of State David Scanlan announced that the recount numbers in the Manchester Ward 6 race didn’t match a revised report from the ward. Nor did they match an audit of the Governor’s race, conducted because of a new law requiring random audits of some top-of-the-ballot races. That audit also counted more ballots than were included in the recount.

Manchester Ward 6 elects two representatives. Republican William Infantine was the top vote-getter in the race, but vote totals for both Infantine and Gagne dropped by 18 and 22 votes in the recount. That led Scanlan to believe a stack of uncounted ballots were mistakenly placed with counted ballots.

“That is an administrative error,” Matteson told the court.

Scanlan wanted the recount to resume this week to ensure all ballots were counted.

In their lawsuit filed Friday, Mosley and Soucy asked the court to stop the recount. They argue that the second recount is “an abuse of discretion, without precedent, and in clear violation of New Hampshire law.” The lawsuit points to several New Hampshire statutes allowing only one recount: RSA 660:3, 660:5, and 665:8. The new law requiring random audits of some top-ballot races allows for an exception if the difference between votes counted on election day and in the recount is greater than one percent.

They argue that because Scanlan publicly declared Mosley the winner, he does not have authority to recount ballots a second time.

And Christie said he was concerned this could lead to more litigation in the future. “My concern is if the state gets its way, there’s nothing to stop every single person who wants a recount in a cycle from demanding a second recount,” he said.

Scanlan asked the court to reject the Democrats’ request, in an objection filed jointly with the attorney general.

“The state will clearly state what the plaintiffs are asking for but refuse to say,” reads the motion by Department of Justice lawyers Myles Matteson, Matthew Conley, and Anne Edwards. “The plaintiffs want this court to disenfranchise New Hampshire voters in the name of ‘finality’ and ‘fair elections’ to preserve an administrative error in a recount rather than allow the process to continue to the required end of its constitutional obligation – identifying the winning candidate as determined by the will of the voters of Manchester Ward 6.”

The Department of Justice and Scanlan argued in their filing that failing to count all ballots cast on Election Day necessarily means the recount function was not concluded.

“Even if the unofficial vote tallies were announced, the recount could only be finished when all ballots in the race have been counted,” they write.

Originally scheduled to recommence on Monday at 4 p.m., the recount has been rescheduled to start again on Tuesday. At the time of publication, the secretary of state had not said what time the recount would resume. Judge Ignatius is expected to make a ruling before that happens.

So far, recounts have flipped two House seats from Republican to Democratic control. Election day results have not changed for other House races. Candidates called off two recounts held on Saturday before they were completed.

The last five House seat recounts took place Monday.

  • Belknap District 6: Republican Richard Beaudoin won by 17 votes against Democrat Lisa DiMartino;
  • Hillsborough District 45: Democrat Karen Calabro won beat Republican Colton Skorupan by 10 votes;
  • Coos District 5: Democrat Henry Noel won by 55 votes against Republican Lori Korzen;
  • Merrimack District 11: Republican Alan Turcotte beat Republican Matthew Pitaro by 16 votes; and
  • Hillsborough District 35: Democrat Ben Ming won by 131 votes against Republican Liz Barbour.

A recount of Senate District 24 is scheduled for 9 a.m. Tuesday. In that race, Republican Lou Gargiulo lost to Democrat Debra Altschiller by 3,656 votes. Democratic candidate Melanie Levesque rescinded her request for a recount for the Senate District 12 seat after losing to Republican Sen. Kevin Avard by 688 votes.

And a recount of the Hillsborough County register of deeds race is scheduled for Nov. 29. Democrat Mary Ann Cromwell beat Republican Dennis Hogan by 62 votes, according to the election night count.

About this Author

Amanda Gokee

ReporterNH Bulletin

Amanda Gokee is the New Hampshire Bulletin’s energy and environment reporter. She previously reported on these issues at VTDigger. Amanda grew up in Vermont and is a graduate of Harvard University. She is working on a master’s degree in liberal studies at Dartmouth with a concentration in creative writing. Her work has also appeared in the LA Review of Books and the Valley News.