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ACLU files Supreme Court petition seeking recount

October 3, 2012

PROVIDENCE — On Monday as promised, ACLU attorney Armando Batastini filed a petition in Rhode Island Supreme Court on behalf of candidate Carlos Tobon asking for the court to order the state Board of Elections to conduct a manual recount of all precinct, mail and provisional ballots for the House District 58 Democratic primary.
Following several machine recounts of the close race, the state Board of Elections certified primary election results on Sept. 19 showing incumbent Rep. William San Bento as the winner by one vote over Tobon. The board also rejected Tobon's request for a manual recount, prompting the ACLU to get involved.
On Tuesday, attorneys for both San Bento and the Board of Elections submitted their responses of objection to the petition for a writ of certiari. A conference was held at the Supreme Court with the judges on Wednesday morning and a decision on the petition could be made as soon as Thursday, according to a source.
In a press release announcing its decision to take on Tobon's case, the ACLU said that Tobon's “purported” one vote loss to San Bento “has been mired in controversy and confusion since election night.” It is stated that the petition will seek a review of the election results “in light of multiple errors that have come to light about the conduct of that election.”
In a response filed on Tuesday, San Bento's lawyers wrote that “this court should see the petition of Carlos Tobon for what it is: a last ditch effort to manufacture some sort of an election controversy where none exists.”
Drafted by attorney Jon M. Anderson and Frederic A. Marzilli, the response states that Tobon has “no evidence to support his claim, let alone evidence sufficient to satisfy the Buonnano standard (which maintains that Tobon had waited too long to file his petition since the general election ballots have already been printed). It further states that what Tobon is seeking—an order for a manual recount--“violates both the United States and the Rhode Island Constitutions.”
Also responding on Tuesday was the Rhode Island Board of Elections, which submitted its objection to the petition by Tobon through attorneys Raymond A. Marcaccio and Peter F. Spencer. The response maintains that Tobon had been afforded “extraordinary relief” by the Board of Elections, including having had each ballot counted “publicly, objectively, and uniformly.”
Additionally, the Board's attorneys wrote, Tobon has received a copy of every ballot (precinct, mail and provisional) that was rejected by the OPTECH reader and each of these rejected ballots was reviewed by the Board Commissioners to determine the voter's intent. They wrote that Tobon also received copies of each tape that tallied the ballot counts.
The Board's attorneys also wrote that despite the repeated recounts, Tobon never had more ballots cast in his favor than that of San Bento. They noted that Tobon tied San Bento only once—and only when the Board ran 49 (rather than 50) mail ballots through the OPTECH reader.
Both San Bento's and the Board of Election's attorneys submitted evidence of a “discrepancy report” that reportedly explains the missing ballot application that was unaccounted for at the Nathanael Greene Elementary School polling place. The fact that there was one more ballot than what the number of ballot applications could account for at that precinct had been a key point of Tobon's petition.
According to a discrepancy report filed by the Nathanael Greene precinct supervisor Colleen Fonseca, when Pawtucket resident Tammy Lee Murray came to vote, she learned her name was not listed at the precinct and was told her voting place was at another location. Murray reportedly noted that her husband's name was listed at Nathanael Greene and she couldn't understand why hers wasn't listed there as well.
Fonseca stated that a call was placed to the Board of Canvassers and a clerk was told to have Murray fill out a “voter affirmation card.” She wrote that Murray did this and then proceeded to get a ballot and voted without also filling out a ballot application. “Therefore, our count is off by one,” wrote Fonseca.
Other points raised by the ACLU as to why a manual recount should be granted to Tobon included the fact that the count from election night and three separate recounts by the Board of Elections generated four different results—despite using the same electronic ballot reader for tabulation of mail ballots.
The ACLU petition also alleges that “disquieting questions have arisen regarding the manner with which certain mail ballots have been treated that post-date the Board of Election recounts and the administrative hearing regarding those recounts.” The petition states, “Given these facts, which are undisputed, no one can plausibly maintain any confidence in the accuracy of the official results of this primary.”
In their response, San Bento's attorneys wrote that “while it is a half truth that four different machine counts of the ballot yielded four different results, even accepting the half truth Mr. Tobon has to concede is that he did not win any of them. Indeed, he received the same 543 votes in all four of them. What changed were the number of votes Rep. San Bento received.”
San Bento's attorneys also maintain that the court cannot impose a manual recount of all ballots because Rhode Island General Law 17-19-37.1 (1)(a) states that the only method by which a recount may be conducted is “by a manual refeeding of the computer ballots cast in said race into the optical scan voting equipment.” Moreover, they state that the “standardless manual recount sought by Mr. Tobon is a direct affront to the Equal Protection guarantee afforded to Rep. San Bento and the 544 voters who cast their ballot for him.”


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