concurring specially. Although we concur in the result, we would uphold the decision of the New Hampshire Ballot Law Commission (BLC) with respect to all 269 contested ballots. We agree with the majority, the BLC and the secretary of state that straight ticket balloting has led to voter confusion. We believe, however, that the majority erroneously questions the BLC’s uniform rule of straight ticket ballot interpretation and exacerbates the confusion surrounding straight ticket balloting.
The issue before us is whether the decision of the BLC was illegal with respect to jurisdiction, authority or observance of the law, by arriving at a conclusion that could not legally or reasonably be made, or whether its exercise of discretion was unsustainable, arbitrary or capricious. Petition of Herron, 141 N.H. 245, 246-47 (1996); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining “unsustainable exercise of discretion” standard). This standard of review is “narrow and highly deferential.” In re Ryan G., 142 N.H. 643, 645 (1998). Unlike the majority, we believe that, in light of the instructions given to voters on the ballots and applicable election laws, the BLC’s decision was both reasonable and sustainable on the record with respect to all of the challenged ballots.
The touchstone of the BLC’s inquiry is voter intent. Voter intent is determined by examining the ballots, in light of relevant statutory provisions and the instructions to the voters. See Murchie v. Clifford, 76 N.H. 99, 104-05 (1911).
The relevant statutes and ballot instructions permit a voter both to vote straight ticket and to vote for individual candidates. The relevant portion of the straight ticket voting instruction reads as follows:
Complete the oval ... opposite the political party of your choice ... if you wish to vote for all candidates running in that party. If you vote a straight ticket, but wish to vote for one or more individual candidates, you may do so, and your vote for an individual candidate will override the straight party vote for that office.
This instruction is based upon RSA 659:17 (1996). Under RSA 659:17, a voter may: (1) cast votes for individual candidates only, see RSA 659:17, II and IV; (2) cast a straight ticket vote only, see RSA 659:17, III; or (3) cast a straight-ticket vote and also vote for individual candidates of the same or of a different party, see id.
*116The only marks on the challenged ballots were the mark in the straight ticket box, a mark for one or more individual candidates, and on some but not all ballots, a mark on one or more constitutional questions. None of these marks was faint, crossed-out, or erased, indicating that the voter no longer intended it. See Broderick v. Hunt, 77 N.H. 139, 141 (1913) (faint, nearly wholly erased cross opposite plaintiffs name and heavy cross opposite challenger’s name indicates vote for challenger); McIntyre v. Wick, 558 N.W.2d 347, 361 (S.D. 1996) (erasure indicates voter’s intent to remove original mark).
In light of these marks and the relevant ballot instructions and statutes, the BLC determined that the voters intended their straight ticket vote on the challenged ballots to count in the skipped race for Hillsborough County Attorney. We would find no legal error in the BLC’s exercise of its discretion and hold that its ruling was both reasonable and sustainable on the record with respect to all of the challenged ballots.
We believe that the majority errs by casting doubt upon the BLC’s uniform rule of ballot interpretation. Under the BLC’s uniform rule, merely voting for individual candidates is insufficient to overcome the presumption that a voter intended his or her straight ticket vote to count in skipped races. While suggesting that “in a future case,” this rule might be unlawful, the majority fails to give the BLC guidance as to when or why this might be the case. This omission can only worsen the confusion surrounding straight ticket balloting.
The BLC’s uniform rule of ballot interpretation is consistent with our case law. It seeks to give effect to all of the markings on a ballot, see Murchie, 76 N.H. at 107, and adheres to our general policy of interpreting ballots liberally to enfranchise voters, see Opinion of the Justices, 114 N.H. 711, 713 (1974). The BLC’s rule also comports with the ballot instructions given to voters.
Moreover, having a uniform rule of ballot interpretation to determine voter intent “is practicable and ... necessary.” Bush v. Gore, 531 U.S. 104, 106 (2000). As the United States Supreme Court has explained, the use of uniform rules to determine voter intent is particularly necessary because “the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper____The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.” Id.
For all of the above reasons, we concur in the result but would uphold the BLC’s determination with respect to all 269 contested ballots.
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