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Write-in AG candidate files voting-rights suit
Published: 12:51 pm Thu, February 21, 2013 12:51 pm Thu, February 21, 2013
By Julie McMahon Massachusetts Lawyers Weekly
North Grafton lawyer James P. McKenna may have lost the 2010 attorney general's race to Martha Coakley, but he's still not ready to concede total defeat.
In a federal suit filed against New Bedford and the city's election commissioner, McKenna claims 202 write-in votes supporting him went uncounted in the Republican primary, which he nevertheless went on to win.
"The election commissioner said she knew there were votes cast and just didn't count them. That's why we brought this lawsuit," McKenna explains. "There's no reason to expect that if [U.S. Senate candidates] Dan Winslow or Ed Markey were to run on a write-in campaign, those votes wouldn't be counted. That's what this is really about."
After learning that a number of cities and towns across Massachusetts had failed to count the write-in votes, McKenna filed complaints with the U.S. Department of Justice and the secretary of state. When those actions "didn't produce anything positive," he says he decided to bring suit in U.S. District Court on behalf of two voters who wrote his name on the ballot.
The case will hinge on whether the plaintiffs can prove willfulness or that the election commissioner deliberately disregarded their votes, according to Rahsaan D. Hall, deputy director of the Lawyers' Committee for Civil Rights and Economic Justice. Though no citizen's right to vote should be compromised, remedying the McKenna situation may not have been a top priority for election officials, he says.
"There's this ultimate principle of preserving the integrity of the electoral process and the right to vote," Hall says. "All of this is very important, but on a practical level, when our organization or the DOJ is looking at how we invest our time and resources, you want to look at where the most egregious wrongs that have the most impact on the largest groups of society are happening."
Municipal lawyer Christopher J. Petrini of Framingham predicts the willfulness issue will be difficult to prove.
"Most cities and towns try in good faith to comply with the law, to do the right thing," Petrini says. "Running elections can be challenging."
But McKenna is confident he's got a solid case. New Bedford Election Commissioner Maria Tomasia admitted to a reporter for The Worcester Telegram last year that she knew the write-in votes weren't counted, he says, which constitutes the willfulness that is necessary to bring a Section 1983 civil rights claim.
McKenna's suit seeks $39,562.96 in relief for each of the two defendants, a number calculated by adjusting for inflation the award in Wayne v. Venable, a voter rights case from 1919.
He also hopes the case will help remedy the system.
"A lawsuit was ... the last resort, in terms of equitability," McKenna says. "With respect to the rights of [my clients], it was a first resort. In New Bedford, we're shooting for a bipartisan commission appointed to make sure the votes are counted for the next several years - something to make sure that this doesn't happen again."