Supreme Court
No. 2012-289-M.P.
(Dissent begins on Page 5)
:
Carlos Tobon
v. :
Rhode Island Board of Elections et al. :
ORDER
This case came before the duty justice on October 3, 2012, pursuant to a petition
for a writ of certiorari and an emergency motion for expedited consideration. The
petitioner, Carlos Tobon (petitioner), requests this Court to order a manual recount of all
precinct, mail, and provisional ballots cast in the House District 58 Democratic Primary
Election (election) and an audit of all mail and provisional ballots cast in the election to
determine the qualification of each voter submitting those ballots.
The full Court in conference considered the petition for writ of certiorari and the
memoranda submitted in opposition thereto by the respondents Rhode Island Board of
Elections (board) and Representative William San Bento, Jr. (Rep. San Bento)
(collectively, respondents), as well as the transcript of the hearing before the board. A
majority of the justices have determined that the petition be denied.
The election took place on Tuesday, September 11, 2012. The vote tally at the
end of that day showed Rep. San Bento was leading by three votes, 543 to 540. The
petitioner requested a recount, which was conducted by optical scan voting equipment, in
accordance with G.L. 1956 § 17-19-37.1, on September 17, 2012. This first recount
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produced a tie between petitioner and Rep. San Bento, causing the board to perform two
more recounts, in like manner, the results of which can be found in the following chart:
Election Day 1st Recount 2nd Recount 3rd Recount
San Bento 543 543 545 544
Tobon 540 543 543 543
Total 1083 1086 1088 1087
As is apparent from the above chart, none of the four vote tallies was the same.
The petitioner then requested a manual recount of all ballots cast in the election.
The board held a hearing on that request on September 19, 2012. At the end of that
hearing, the board voted to deny the request for a manual recount. The record of that
proceeding was provided to petitioner on September 27, 2012, and this petition for writ of
certiorari was filed on October 1, 2012.
At the outset, we address an issue of timeliness. The respondents urge us to deny
the writ based on petitioner’s purported delay in filing his petition. The respondents
assert that petitioner waited until October 1, 2012―twelve days after the board voted to
deny petitioner’s request for a manual recount—before he filed this petition. However, it
is undisputed that the transcript reflecting the decision of the board was not available to
petitioner until September 27, 2012. Because the board failed to issue a written order or
decree denying petitioner’s request for a manual recount, the transcript of the proceedings
before the board represented the functional equivalent of a final decree from which relief
in this Court may be sought. We therefore are satisfied that the petition is not untimely,
nor did petitioner delay any filing in this Court.
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The petitioner raises several issues in his petition, including a challenge to certain
mail ballots cast in the election. He contends that the mail ballot of a registered
Republican was improperly counted and that the mail ballot of another voter was
improperly voided. However, G.L. 1956 § 17-20-26(a)(1)(ii) provides that mail ballots
are certified by the board “[b]eginning fourteen (14) days prior to and continuing on
election day.” All candidates are to be given notice of the day on which the mail ballots
for those candidates’ districts will be certified, § 17-20-26(a)(2), and an opportunity “to
witness the processing and certification of the ballots,” § 17-20-26(b). “If upon
completion of the certification of a mail ballot no objection has been raised against the
certification of the ballot, the outer envelope shall be discarded[,]” § 17-20-26(d), and the
board will count that mail ballot on election day, § 17-20-26(f).
An objection to the approval or exclusion of any mail ballot must be raised at the
time the ballot is certified. Because this did not occur, this issue is not properly before
this Court. 1
Turning to the crux of the relief sought by petitioner–the manual recount of all
ballots cast in the election―it is the decision of a majority of this Court that § 17-19-37.1
precludes us from ordering a manual recount. That statute sets forth the requirements and
procedures for recounts in elections to public office. In specified circumstances, it
provides for “a manual re-feeding of the computer ballots cast * * * into the optical scan
voting equipment.” Section 17-19-37.1(1). Nowhere does the statute provide for a
manual recount conducted other than by re-feeding the ballots into the vote-counting
machine. Significantly, while an earlier version of this statute contained a provision that
1
Although the parties initially disputed the count of the provisional ballots, that matter
has been resolved to the satisfaction of all parties.
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allowed for manual recounts, the most recent iteration of this statute eliminated that
provision. See P.L. 2004, ch. 483, § 1; P.L. 2004, ch. 264, § 1; P.L. 1996, ch. 298, § 2;
P.L. 1996, ch. 277, § 2. As this Court noted recently, “[i]t is not our role to contort the
language of an unambiguous statute in order to include within its reach a situation which
it plainly does not encompass.” Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d 527, 536
(R.I. 2012).
The majority’s decision is consistent with a previous order decided after § 17-19-
37.1 was last amended, in which we directed the board to conduct a recount of all
ballots. 2 See Alves v. Board of Elections, No. 2008-236-M.P. (R.I., filed Oct. 2, 2008)
(order granting stay); cf. Larisa v. Board of Elections, 911 A.2d 278 (R.I. 2006) (mem.)
(declining to stay an order preliminarily enjoining the board “to provide access to
Plaintiff * * * to copies of any and all ballots rejected by the Optech computer reader”).
The operative language in Alves, No. 2008-236-M.P., stated: “The Board is directed to
recount all ballots (including precinct, mail, and provisional) cast * * *. In conducting
the recount, the Board shall, whenever possible, determine voter intent with respect to
any and all ballots rejected by the machine.” (Emphasis in original.) As this language
makes clear, while we directed a recount in Alves, we never required a manual recount of
all ballots. In fact, the word “manual” does not appear in that order. Our order in Alves
contemplated a determination of voter intent, i.e. a manual recount, only with respect to
those ballots which were rejected by the machine during the recount.
2
While we do not customarily cite to our unpublished orders, we do so here because the
parties relied upon that order in briefs submitted to this Court and on the record before
the board without objection.
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Here, the petitioner has already requested and received the relief specified in § 17-
19-37.1 and in our prior order in Alves: a manual re-feeding of ballots and a manual
recount of those ballots rejected by the machine. Any further relief would contradict both
the express mandate of the legislature and prior orders of this Court. Accordingly, the
petition for writ of certiorari is hereby denied.
Chief Justice Suttell, along with Justice Goldberg, dissenting. As Americans,
our most fundamental political right is the right to vote. “No right is more precious in a
free country than that of having a voice in the election of those who make the laws under
which, as good citizens, we must live. Other rights, even the most basic, are illusory if
the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964); see also
Parella v. Montalbano, 899 A.2d 1226, 1233-34 (R.I. 2006) (App’x A). Our Rhode
Island Constitution dictates that “[i]n all elections held by the people for state, city, town,
ward or district officers, the person or candidate receiving the largest number of votes
cast shall be declared elected.” R.I. Const., art. 4, sec. 2. The conduct and integrity of
the election process is, therefore, of the utmost public importance.
The petitioner seeks an order from this Court requiring a manual recount of all
precinct, mail, and provisional ballots cast in the election. We would grant the request
and order such a recount. To be sure, G.L. 1956 § 17-19-37.1(1) provides for a recount
only “by a manual re-feeding of the computer ballots cast * * * into the optical scan
voting equipment.” The General Assembly, however, has defined a “Vote” as “any mark
made with the appropriate marking device within the optech ballot voting area between
the head and tail of the arrow on the computer ballot next to the party, candidate, write-in
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candidate or question, as is applicable, for whom the voter casts his or her ballot.”
Section 17-19-1(7). Moreover, the statutory framework concerning the conduct of
elections requires that “[a]s part of the voting process, there shall be created a physical
ballot showing the votes cast by an individual voter which is capable of being hand
counted so that electronic recorded device totals can be checked for accuracy.”
Section 17-19-3(a)(4)(v). As to mail ballots, § 17-20-24 provides in relevant part that
“[n]o defect in the marking of the appropriate space associated with casting a vote shall
invalidate any ballot or a vote for any candidate, where the intention of the voter is
clearly indicated.” (Emphasis added.) These provisions anticipate that under certain
circumstances, some of the ballots cast in a given election would be read manually, in
order to determine the intention of the voter.
In the primary election at issue, the ballots have been counted on four occasions,
each resulting in different totals. At the hearing before the board, Robert Rapoza, the
director of elections at the board, explained one possible reason for the discrepancy as
follows: “These ballots have gone through the machine now numerous times, and there
may have been a mark in the pathway that was not picked up on the second reread but
was picked up on the fourth reread or vice versa.” The pathway, as clarified by Mr.
Rapoza, is the “the blank [area] between the head and the tail of the arrow.” Further, Mr.
Rapoza testified that “one of the provisional ballots could not be read by our reader
because it was marked incorrectly by the voter and needed Board determination.”
This Court has, in the past, ordered the board to depart from the literal
requirements of § 17-19-37.1 by directing the board on two occasions to “whenever
possible, determine voter intent with respect to any and all ballots rejected by the
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machine.” Alves v. Rhode Island Board of Elections, No. 2008-236-M.P. (R.I., filed
Oct. 2, 2008) (mem.); Bennett v. Rhode Island Board of Elections, No. 2008-233-M.P.
(R.I., filed Oct. 2, 2008) (mem.).
According to the papers filed in this case, respondent board has, in fact, conducted
a manual recount of the votes that were rejected by the mechanized reader. According to
the board, petitioner “has received a copy of every ballot (both precinct, mail and
provisional) that was rejected by the OPTECH reader” and “[e]ach of these rejected
ballots was reviewed by the Board Commissioners to determine the voter’s intent.”
Thus, the board has manually counted some, but not all of the ballots cast in this primary
election and, as noted, fed the precinct ballots into the mechanized reader numerous
times; the votes each time were different, resulting in a one-vote majority for
Representative San Bento.
The majority is correct that our orders in Alves and in the case of Bennett,
decided the same day, do not include an explicit direction to manually recount the ballots
that were rejected by the mechanized reader and that the word “manual” is not contained
in those orders; such a distinction, however, is irrelevant. In each case, this Court
ordered, in no uncertain terms, that the board―not a mechanized reader—“determine
voter intent with respect to any and all ballots rejected by the machine.” 3 Furthermore,
this Court directed, that “the parties shall be permitted to observe the process whereby the
Board determines voter intent.” As noted, the real issue in this case is whether or not a
manual recount should be ordered with respect to the ballots cast in the precincts.
3
To its credit the board followed this mandate in the case before us.
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In our judgment, the present circumstances, where there is but a one vote
difference after four machine counts, each resulting in different totals, warrant a manual
recount. We would, therefore, order the Board of Elections to hand count all the ballots.
Such a recount, we believe, would be consistent with the constitutional requirement that
the “candidate receiving the largest number of votes cast shall be declared elected.” R.I.
Const., art. 4, sec. 2.
Entered as an Order of this Court, this 5th day of October, 2012.
By Order,
____________/s/________________
Clerk
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Carlos Tobon v. Rhode Island Board of Elections et al.
CASE NO: No. 2012-289-M.P.
COURT: Supreme Court
DATE ORDER FILED: October 5, 2012
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: N/A – Court Order
SOURCE OF APPEAL: Rhode Island Board of Elections
JUDGE FROM LOWER COURT:
N/A
ATTORNEYS ON APPEAL:
For Petitioner: Armando E. Batastini, Esq.
For Respondent Rhode Island Board of Elections:
Raymond A. Marcaccio, Esq.
For Respondent William San Bento, Jr.:
Jon M. Anderson, Esq.
Frederic A. Marzilli, Esq.