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UPDATED: Hope board member demands access to ballots

Second lawyer says only tally sheets may be inspected
By Daniel Dunkle | Feb 23, 2021

Hope — Select Board member Bruce Haffner made a formal request Feb. 19 under the Freedom of Access Act to inspect ballots and tally sheets from the July 14 town election.

Haffner cited a letter from his attorney to argue the ballots are public documents. However, the attorney hired by the town has written a letter saying only the tally sheets may be inspected under state law.

“Please provide me access to the box(es) containing all of the ballots and tally sheets from ‘The Town of Hope Annual Town Meeting Referendum, July 14, 2020’ for the purpose of inspecting them,” Haffner wrote. “I request access by next Friday, subject to proper oversight. This is a formal request under Maine’s FOAA statute. Attached is a letter from my attorney, Joseph Baldacci, outlining why this should be allowed.”

Included in the email to town officials was a pdf of the Feb. 9 letter from Baldacci, which the Select Board has previously discussed in a meeting.

On Feb. 19, Kristin Collins of PretiFlaherty, who had been hired by the select board to lookin into the issue sent a letter to the town with her opinion concerning potential access to the ballots.

“The board has engaged me to review legal issues related to whether Town officials may access and view the contents of sealed ballot boxes more than 30 days after an election,” Collins wrote. “I understand that there were several discrepancies noted in the tallies submitted by ballot counters following the July 14, 2020 municipal referendum election. There were 25 ballot questions on the referendum ballot. Although the majority of the questions showed tally counts totaling around 500 votes, tallies for certain individual questions ranged from 463 total votes to 548 total votes. This has led the Select Board and some members of the public to question whether there were irregularities in the counting process that led to these discrepancies in the tally. The question has been raised as to whether the board or other town officials might be able to access the ballot boxes (in which tally sheets were sealed) to review whether mistakes were made in the counting process. I understand that the goal is not to alter the results of the election but more to understand what happened so that procedures might be improved in the future.”

Collins disagreed with Baldacci's argument that ballots are public records and said he was citing information from a legal opinion of justices in 1956.

"...I do not believe there is any legal ability to access the ballots to compare them to the posted results," Collins said. "I do believe there is legal authority to access the tally sheets to see if they demonstrate whether or how errors may have been made in the counting process. At this point, six months past the election, my advice is to proceed with reliance on the election outcome. The information you may glean from tally sheets should be used as guidance to ensure against errors in the future, but probably could not be used to change the results of the election. However, if you do find evidence of extreme errors on the tally sheets, those issues should be brought to legal counsel for a more specific evaluation."

The Hope Select Board planned to discuss this at its meeting Tuesday, Feb. 23, at 6:30 p.m. That would be after the print edition of The Camden Herald for this week went to press. Residents can view meetings online (townhallstreams.com/towns/hope_me).

In August, the Select Board issued a public statement acknowledging errors in the vote counts for town meeting items. “...The total of the Yes, No, and Blank tallies added up to different numbers when, in fact, they should have been a consistent total for the total number of ballots.” Town officials noted that they were not able to have the ballots for town items printed by the special printers so they could be counted by the machines. The town had to print its own ballots and hand count them. The inexperience of town office staff and the challenges created by the pandemic were also cited.

For months the issue has been discussed in Select Board meetings. The board voted in January to spend up to $500 with attorney Kristin Collins of PretiFlaherty to find out whether the town could legally open the sealed ballot boxes to inspect either the ballots or tally sheets.

It has been noted that the outcome of the election can no longer be changed, but the inspection might provide information about what happened and peace of mind to those concerned.

Haffner had contacted Bangor attorney Baldacci on his own with questions about the ballot boxes.

On Feb. 9, Baldacci wrote (in part, edited for space):

“This letter is given to you in response to your inquiry concerning whether the town selectmen have the authority, on their own, and concurrent with state law to allow an inspection of the ballots as you have requested be done.

“1. Are the ballots ‘public records’ under the Maine FOIAA Statute?

“It is pretty clear that the well settled law in Maine is that the ballots are ‘public records.’”

“...2. Does the Maine FOIAA Statute clearly apply to municipalities?

“The short answer is clearly Yes.”

“...3. Mr. Haffner is a proper party to request such a public inspection.

“‘Except as otherwise provided by statute, every person shall have the right to inspect and copy any public record during the regular business hours of the custodian or location of such record. . . .’ Bangor Pub. Co. v. City of Bangor, 544 A.2d 733, 735 (Me. 1988).”

Baldacci concluded, “In summary it is legal and appropriate for the Town to honor this freedom of information request by Mr. Haffner with appropriate safeguards for having it done in public, during regular business hours and at his expense if necessary.”

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