Massachusetts candidates allege elections turned on “human error”

By Chris Lisinski

STATE HOUSE, BOSTON, JAN. 13, 2023…..Both Republican candidates who want Massachusetts lawmakers to reverse or nullify their narrow election losses said Friday that they attribute the alleged problems to “human error,” not to fraud or more politically charged motivation.

A three-member House panel set out Friday to examine the results in the Second Essex District, where Democrat Kristin Kassner topped Republican Rep. Lenny Mirra by one vote, and the First Middlesex District, where Democrat Margaret Scarsdale beat Republican challenger Andrew Shepherd by seven votes.

In the first events of their kind in more than a decade, the special committee invited candidates in both races and their attorneys to the State House for a pair of hearings where the Republicans aired their grievances over the recounts that ended with miniscule margins and the Democrats defended the certified results as valid.

“I don’t want anyone to think this was a quote-unquote stolen election. Those are inflammatory words, especially these days,” Mirra, a five-term incumbent from Georgetown, said during the hearing. “I don’t think there was any kind of massive fraud involved, there was no conspiracy involved, there was no nefarious intent here. When you find 14 extra ballots in the town, honestly, Mr. Chairman, I think it’s a simple matter of human error.”

“I think it was held fairly, I think every town clerk did their best to hold a fair and open election, and I think any of the issues that we brought up today honestly are simply a matter of human error,” he added.

Shepherd, a first-time Republican candidate from Townsend, delivered nearly the exact same message to lawmakers a few hours later.

“I don’t want anyone to believe that this was a stolen election. I do not believe there were any conspiracies nor nefarious intent,” Shepherd said. “I simply believe that there was human error under the smallest of margins that has materially affected the outcome of this race. I think everybody involved, the clerks and the registrars, I think they did their absolute best given their resources and their constraints. It simply comes down, I think, for the committee: what magnitude of human error is one willing to accept?”

Both Kassner of Hamilton and Scarsdale of Pepperell, who had their victories certified by the Governor’s Council on Dec. 14, remain in limbo more than a week into the 2023-2024 session after House leaders moved to delay their inauguration and task the special committee with deciding the final outcome in the contested races.

Mirra filed a lawsuit on Dec. 21 alleging that enough ballots should have been tossed or counted differently to change the outcome in his race. His legal challenges have been unsuccessful in every level of court from Superior Court up to the Supreme Judicial Court, with judges writing that they believe jurisdiction lies with the House itself and not the judicial branch.

Shepherd similarly filed a lawsuit on Dec. 23, and a judge in his case has not yet ruled.

It’s not clear how long the review by the committee, which consists of Stoneham Democrat Rep. Michael Day, Charlestown Democrat Rep. Daniel Ryan and House Minority Leader Brad Jones of North Reading, will take. Day, who chairs the special committee, said in between the two hearings Friday that the trio is “committed to resolving this as expeditiously as possible, which is why we called this hearing this quickly,” but he did not outline a specific timeframe.

Exactly 20 years ago, a similar House committee convened a hearing to examine the race between Democrat Rep. Matt Patrick and Republican challenger Larry Wheatley. That panel issued its findings on March 18, 2003, more than two months later. Another such committee took a stance on Feb. 9, 2011, eight days after a judge called for a new election.

Day declined to detail the next steps the panel will take. Asked if lawmakers would review each challenged ballot before deciding the outcome, he replied, “It’s all under advisement. We’re going to discuss this as a special committee.”

However, Jones said during the first hearing of the day that “we, ultimately as the final judge of this, may need to look at those contested issues” as lawmakers weigh next steps.

The top House Republican also indicated multiple times over the course of Friday’s hearings that he believes sweeping elections reforms in recent years, including permanent authorization of widespread mail-in voting, may have played a role in the upheaval behind the pair of challenged recounts.

At one point, Jones suggested the “Legislature in some instances set up clerks for failure.”

“The fact we’re faced with two of these in one session and the last time was a decade ago and the time before that was a decade before that highlights that we are potentially going to be faced with more of these going forward in light of the changes in election law,” he said, referencing cases from 2011 and 2003 that could serve as key precedent this time around.

Second Essex District: Mirra v. Kassner
Mirra is hoping lawmakers will either name him the winner, reversing his one-vote loss, or call for a new election.

He and his attorney, former U.S. Attorney Michael Sullivan, spoke with the panel for about 45 minutes to detail allegations that some ballots rejected in the recount should have been counted for Mirra, that clerks failed to compare mail-in ballot signatures as required by law, and that there was no explanation provided for 14 additional ballots discovered in Ipswich during the recount.

After speaking with lawmakers, Mirra told reporters he believes 28 ballots were formally contested by either candidate for various reasons, including use of pencil or colored ink to fill them out.

Lawyers from the Republican National Committee attended some of the recount proceedings to lend their expertise, Mirra said.

“After a yearlong campaign, a close election, a complicated recount, and some court proceedings, I’m ready to take on this new challenge,” Kassner said. “I’ve continued to meet with constituents preparing for the legislation deadline [on Jan. 20] to address really important issues that are facing both the commonwealth as well as our communities.”

Sullivan urged the committee to “look at all of the ballots,” detailing one that the Mirra camp had highlighted in its original unsuccessful Superior Court lawsuit. According to Sullivan, who said he did not witness the ballot’s examination personally, the voter in that instance wrote in the name “Donald Trump” in multiple places, but only filled in the bubble next to Mirra’s name and not next to the write-in space for state representative.

Local elections officials ruled that the ballot, which had originally been counted for Mirra, included an overvote and therefore was converted to a blank that did not add to either candidate’s tally.

Sullivan argued that case law indicates a voter can write in multiple names and still have their vote counted for a candidate so long as the candidate oval is the only one they fill.

“You could write in four names as write-ins, but I could still vote for you, Mr. Chair, as representative and my vote for you is the vote that should count, not the fact that I wrote in four names under you,” Sullivan said.

Kassner’s attorney, Gerald McDonough, made virtually the opposite case to lawmakers.

“I saw the ballot in Ipswich. There was an oval filled in for Mr. Mirra, and then Donald Trump’s name was written in, and an oval was filled in for Donald Trump,” McDonough said. “Two ovals are filled in in that ballot. There’s no mistake about it in my mind.”

Asked by Jones if Kassner’s camp would object to lawmakers examining that ballot, McDonough said he does not believe a “piecemeal” probe is the way to go, then added that looking at the ballot would be “a waste of time.”

“To be honest with you, I think it’s a slap in the face to those registrars,” McDonough said. “They didn’t do this cavalierly. They didn’t go in there saying, ‘We’re going to do this for Mirra, we’re going to do this for Kassner.’ They spent an awful lot of time discussing it.”

Mirra’s team also questioned the validity of five “spoiled ballots” in Rowley that did not get counted in the original results but went to Kassner during the recount.

“Spoiled ballots are typically not unspoiled. A ballot gets spoiled for a number of reasons, including a voter determining that they had made a mistake and wished to have another ballot, and the initial ballot is marked spoiled,” Sullivan said. “The same could be true with regards to a mail-in ballot, where a voter subsequently decides that they want to vote either in person or to correct an earlier mail-in ballot.”

McDonough argued that in cases like voting for too many candidates in a given contest, only the section of the ballot dealing with that contest should be nullified, not the ballot as a whole. All five previously spoiled Rowley ballots that went to Kassner in the recount had been spoiled for issues in races other than state representative, according to McDonough.

“It’s only the spoiled vote on the ballot that should be rejected,” McDonough said. “When our lawyers in Rowley asked to examine the spoiled ballots and examined the spoiled ballots, there were five mail-in ballots where there were appropriate votes for Kristin Kassner and that was not the reason that the ballot had been spoiled. And so the board correctly decided to count those votes for Kristin Kassner.”

One of the issues that Mirra raised appeared to catch the eye of Jones, the leader of the House’s Republican caucus.

Mirra’s attorney said the recount discovered 14 more ballots in Ipswich “that weren’t identified during the initial election” and that no explanation has been offered for the change.

“If you look at the vote totals from prior to the recount to after the recount, there’s 14 ballots [added] in Ipswich overall and almost de minimis throughout the rest of the district. So that raises a big question,” Jones said.

While the committee weighs next steps, Mirra remains in office as the state representative for the redrawn Second Essex District on a holdover basis. He told reporters he believes he still has all of the authorities and responsibilities that come with that job and has already filed about a dozen bills and requested committee assignments.

Asked if he made any personal appeal to House Speaker Ron Mariano before the top Democrat announced the House’s intention to delay Kassner and Scarsdale’s inaugurations, Mirra replied, “Absolutely not.”

“I didn’t think that was appropriate,” he said. “I just made my comments to my own attorneys. All our appeals and comments were made to the judges, both at Essex County Superior Court and the SJC. I think the speaker took it upon himself at that point because once the swearing-in takes place, it is now firmly in the jurisdiction of the House.”

First Middlesex District: Shepherd v. Scarsdale
In the second hearing of the day, Shepherd’s team alleged a string of “serious irregularities” in administration of the recount across the north central Massachusetts district.

Sullivan, who represented Shepherd as well as Mirra, told lawmakers that local clerks failed to reject mail-in ballots where signatures on the envelopes did not match registration cards, improperly opened envelopes and commingled ballots after objections, and may have counted “test ballots” not actually cast by voters.

He also alleged that in Groton, which the latest round of redistricting split across two state representative districts, officials mailed voters in the Scarsdale-Shepherd precincts “an unknown number of ballots” listing the candidates for the other district. During the recount, Sullivan said, some onlookers found ballots “for a different race.”

“We don’t know whether or not there are votes in this particular election that are someplace else as a result of the mis-commingling of those ballots,” Sullivan said.

Unlike in the Second Essex controversy, where Sullivan asked the committee either to name Mirra the winner or schedule a new election, he called in the First Middlesex district only for lawmakers to declare the seat vacant and move for a special election.

“The margin of conjecture clearly exceeds the margin of victory, notwithstanding whether it’s seven or 17,” Sullivan, who served as a state representative and Plymouth County district attorney before his stint as the top federal prosecutor for Massachusetts, said. “There are so many ballots that ended up being counted where they should not have been counted in the first instance, because of the failures of matching the signatures on the envelope with the signatures at the town halls.”

Scarsdale and her attorney, Dennis Newman, described themselves as confident in the outcome of the race and her win.

“I am certain that when this committee reviews the results of this election, you will find what my team and I have known since the recount ended over a month ago: that this election was administered with transparency and integrity by our town clerks, election workers and registrars,” Scarsdale said.

She pointed out that many constituents in the redrawn district have been without any elected representation in the House since February, when former Republican Rep. Sheila Harrington resigned for a job in the state judiciary.

Both Scarsdale and Newman also argued that Shepherd moved too slowly to challenge the results in court, waiting until after the close of business on the Friday heading into a long holiday weekend to file his lawsuit.

Newman said courts in the past have ruled that missteps by election workers alone, without absence of fraud or misconduct, are not enough to invalidate the results of a race.

“The expense and time of the towns having an election, a recount and then another special election — and who knows, maybe another recount — is not in the public interest,” Newman said.

One issue both parties addressed was the substantial growth in the number of votes cast, with 114 more ballots counted in the recount, many of them blank, than in the general election.

Shepherd said he is “not sure how someone wouldn’t have legitimate doubts” after observing that difference.

Newman replied, though, that most of the shift could be explained. Fifty of the ballots counted in Dunstable appear to be “test ballots,” he said, adding that even Shepherd’s camp agreed that if those votes were removed from the final total, Scarsdale’s margin of victory would have increased. Another 35, according to Newman, were from a “stack” of blank ballots that Townsend officials opted to add to the total when they finished their recount.

“So that explains 85 of that 114,” Newman said.