Recount must go on: Judge rejects Democrats' request to halt tally in state rep race

CONCORD — A judge directed NH Secretary of State David Scanlan on Tuesday to move forward with his plans to keep counting ballots in a closely watched state rep race after a recount last week appeared to flip the seat from Republicans to Democrats.

The initial election day tally in the Hillsborough 16 race showed Democratic challenger Maxine Mosley losing by 23 votes to Republican incumbent NH Rep. Larry Gagne. But the recount tally on Nov. 14 showed Mosley defeating Gagne by 1 vote. Three days later, Scanlan announced the recount would continue due to "insufficient certainty" that all the votes had been included.

Democrats filed a lawsuit on Friday to halt Scanlan's plans, arguing that the recount had already been completed and Mosley had been declared the winner. The lawsuit claimed Scanlan doesn't have the discretion under NH law to keep counting.

In a decision issued Tuesday morning, Merrimack Superior Court Judge Amy L. Ignatius said Scanlan "ordinarily" does not have the authority to review a recount. "This matter stands apart from ordinary circumstances," she added.

Scanlan's office included Mosley's name in a list of people identified as winning candidates. That "presents complexity" for this case, Ignatius wrote, but what matters most is ensuring a "complete and lawful count" to ascertain the will of the voters.

"A review of the recount tabulation is required to ensure the expressed will of the Manchester Ward 6 voters is heard and the candidate with the most votes is seated as their State Representative," Ignatius wrote.  

The running theory that a stack of 25 ballots may have gone untallied during the recount is "credible," Ignatius wrote, outlining how the hand-recount methodology involves grouping ballots into stacks of 25 then gathering those groups into stacks of 100 ballots. If someone placed five 25-ballot stacks together and erroneously counted them as a group of 100 ballots, that could explain why both Republican candidates saw their vote counts drop notably in the recount tally.

"The defendant's alleged clerical error which may have altered the results of the count tally compels this Court to allow additional review of the ballots to determine that the expressed choice of the voters is the final outcome," Ignatius wrote.

Ignatius ordered Scanlan to conduct his review of the Hillsborough 16 results, including all ballots, not just those votes cast for the Republican candidates.

It was not immediately clear Tuesday whether the Democratic plaintiffs would challenge the decision, though a spokesperson for the NH Democratic Party seemed to acknowledge the recount would continue.

"We will explore our options in the coming days, but New Hampshire Democrats will be there for the next round of recounts in the Ward 6 race, and regardless of today's decision by the courts we will never stop fighting for the integrity of our elections," NHDP Communications Director Colin Booth said Tuesday.

Before the lawsuit was filed, the reopened recount had been slated to begin Monday at 4 p.m., but the count was postponed until Tuesday in light of the litigation. A spokesperson for Scanlan's office announced shortly before noon that the recount would continue Tuesday at 1 p.m.

The appeal that Gagne filed to the Ballot Law Commission pertains only to the seven or eight ballots that were challenged during the recount for this race; that appeal and the lawsuit-related court proceedings "run parallel to each other," Ignatius wrote in a footnote.

Strong words

Democrats had strong words for Scanlan and the GOP when their lawsuit was filed. Gov. Chris Sununu, a Republican, responded with strong words of his own Tuesday morning.

"In an effort to subvert the will of voters, NH Democrat leaders engaged in appalling, hypocritical, and outrageous behavior to prevent all legal votes from being counted," Sununu tweeted, thanking Scanlan and Ignatius for "protecting the voice of voters and integrity of our elections."

Ignatius was appointed to the court in 2014 by then-Gov. Maggie Hassan, a Democrat.