RI ACLU Submits Brief Supporting New Election For Smithfield Town Council

March 27, 2009 12:00 am

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The Rhode Island ACLU submitted a friend of the court brief today supporting plaintiffs who are asking the U.S. Court of Appeals in Boston to order a new election for five Smithfield Town Council seats because of defective ballots that thousands of town voters used in casting their votes.

In the election held last November, ballots that were originally provided voters erroneously listed the name of a Council candidate who had dropped out of the race in September. When elections officials realized the error, new ballots were quickly printed and distributed, but only after almost 600 votes had been cast for the withdrawn candidate. Despite questions about the validity of the election, the Board of Canvassers certified the top five highest vote-getters as winners for the seats, even though the difference between the fifth and six place candidates was only 39 votes.

After the state Board of elections refused to order a new election, four Smithfield voters filed a federal lawsuit, Bennett v. Mollis, seeking to have the election declared void. Concluding that the erroneously cast ballots were unlikely to have changed the outcome of the election, U.S. District Judge William E. Smith dismissed the lawsuit.

In supporting the voters’ appeal of that ruling, the ACLU’s friend of the court brief, filed by volunteer attorney Mel A. Topf, notes:

“A crucial underlying fact here is just how close the vote at issue was. Approximately 9,500 voters submitted ballots for election to the Smithfield Town Council. The difference between the fifth-place candidate and the sixth-place candidate was just 39 votes. Of the 9,500 voters, approximately 2,900 – nearly one out of three voters – received defective ballots. This dilution, in light of the extraordinarily close vote on one hand and the very large number of defective ballots on the other, constitutes a broad-gauged election irregularity sufficient to support a substantial constitutional claim.”

The brief goes on to say that failing to intervene in cases of reasonable doubt is a constitutional violation: “[Judicial] intervention is warranted when election irregularities are sufficient to render the results doubtful, as well as when they are sufficient to change the election results. That standard is appropriate because a reasonable doubt about the outcome of an election – especially, as here, a very close election – undermines the public trust and confidence in the integrity of elections. Due process involves the appearance of fairness as well as actual fairness.

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