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Like most of you, dear readers, we followed the Ward 6 election trial carefully. We think this is a great learning opportunity, so we are doing a series of posts going over the issues raised at trial. There is a lot to unpack, so we will chunk the case up into segments and attempt to explain the history, process, and rationale behind each of the components.
Megan Riccardi won the Ward 6 councilor seat by 1 vote over Jerry L. Ryan on 5 November and those results were confirmed by the recount held on 25 November, which had been requested by Ryan. On 5 December, Ryan sued the City of Salem, the Board of Registrars (Charles Barton, Donald Bates, Alex Mitchell-Munevar, and Ilene Simons ex officio), and the City Clerk (Ilene Simons) over votes he thought had been handled improperly, ultimately 13 in total. He asked the court to prohibit Riccardi from being sworn in as Ward 6 city councilor pending resolution of the trial (the judge granted the injunction, delaying the inauguration). Ryan asked that either (1) the election be awarded to him or (2) the court require a new election. On 8 January, Judge Lu ruled in favor of the City et al. on all issues and the Council, including Riccardi, have been sworn in.
The lawsuit initially alleged problems with 11 votes. More votes were added to the problem list during trial, so the judge considered 14 in total, 13 of which were disputed by Ryan and 1 by Riccardi. Judge Lu ruled for the City and against Ryan and Riccardi in all 14 instances.
We describe 12 of Ryan’s 13 disputed votes in detail below. You may have heard that, while Ryan has conceded the election, he is still pursuing questions about the 13th issue, the one not described here. We will follow up with a specific post on #13, which is very complicated.
Messy Ballots (2)
At the 25 November recount, Ryan and Riccardi each contested what we will call “messy ballots.” These were ballots with ambiguous markings. The Board of Registrars, using guidance from the Elections Division on how to interpret marking, determined that one ballot should count for Ryan and the other for Riccardi. By contesting at the recount, Ryan and Riccardi reserved their right to go to court. Ryan filed his lawsuit and his contested messy ballot was 1 of the 11 therein. Riccardi, who entered the lawsuit as an “intervenor” to protect her rights, then brought her contested ballot before the judge, adding 1 more to the original 11.
Judge Lu affirmed the determinations of the Board of Registrars.
Ballots Not Received or Received Late (2 - added during trial)
These two ballots were added to the mix during the trial.
One voter testified that she had mailed her absentee ballot in time for the election via regular US post (but without return receipt). However, the City said it had never received it.
The second item in this section was a little unclear in the “Twitter record,” but it seems that one person’s absentee ballot was received after the election, according to the City, but for some reason Ryan wanted it counted.
These two items were discussed as a package towards the end of the trial and the judge ruled for the City, saying “no reasonable judge or jury could rule as requested by the plaintiff on the issues of this case.”
“Lost” Ballot (1)
After the election, City employees scanned the voter check-in book to create a list of people who had voted in Precinct 1 of Ward 6. The number of people on that list totaled 750, rather than the 749 ballots counted by the tabulator (the machine that accepts and reads the ballots). Based on that, Ryan claimed a ballot had been lost.
At trial, it came out that human error can sometimes result in the check marks being made incorrectly. Or, the scanning of the completed check-in list could introduce human error. When the check-in report is created from the book, the report may be slightly inaccurate in terms of the names of the people who voted or the total number of people who voted.
The check-in book total “should” match the tabulator total of ballots cast. (That makes sense, if the system worked perfectly.) But it doesn’t invalidate an election to have a discrepancy, especially a discrepancy of one vote. (Note that the tabulator tallied 749 votes and the City produced 749 ballots for Ward 6, Precinct 1.)
The judge said, “a reasonable judge or jury couldn’t find that the difference between check-in and check-out in any way invalidated the vote, in any way, and I grant the city’s motion for involuntary dismissal.”
Absentee Ballots - Other (8)
To get an absentee ballot, the voter (or their family member) fills out and signs an application form or provides a letter detailing the voter and election information and the circumstances that prevent the voter from casting a ballot in person. The City then supplies an absentee ballot, which the voter completes and puts in an envelope. The voter signs an affidavit on that envelope swearing they are the voter referenced in the application. The voter then puts that envelope in another envelope, which can be mailed back or returned in person. Absentee ballots mailed within the US have to be received by the close of polls on election day to be counted. A voter may have someone assist them with this process due to physical disability.
In his initial filings, Ryan complained about 8 absentee ballots, or actually about their applications or envelope affidavits. The ballots themselves get mixed in with all the other ballots on election day and are as anonymous as in-person ballots. If the judge had ruled for Ryan on any one of these absentee packages, Salem probably would have had to hold another election (you literally can not pull an absentee ballot out of the mass of ballots, so the election result would become unknown).
In addition to the 8 specific complaints, Ryan’s court filing made a number of bold assertions, for instance:
“the City did not follow absentee ballot procedures to guard against fraud”
“the City did not reject a single absentee ballot despite clear irregularities and failure of the voter to comply with the election laws”; and
“the City was also lax in making sure that the absentee ballots were timely cast.”
According to the Twitter record, Ryan’s attorney never offered any support for those sweeping assertions in court, so the accusations did not hold up. Nor did the 8 specific complaints.
Ryan’s attorney withdrew complaints about 3 of the 8 absentee ballots. Those were ballots that were not postmarked and not date- and time-stamped when received by the City. However, as had previously been pointed out at the recount, absentee ballots can be submitted in person (instead of mailed). Additionally, there is no legal requirement for the City to date- and time-stamp absentee ballots that are received on time; only late ballots must be marked to show when they were received.
That leaves 5 more absentee ballots. The judge ruled in favor of the City in each case. These were the issues (voters’ names have been changed even though they were made public elsewhere):
At the time of the recount, one ballot was not accompanied by its application as required. The Clerk found the application and brought it to court. The judge accepted that.
For a voter listed as “John Q. Smith, Jr.” on the voting rolls, the application was signed “John Smith” and the ballot envelope was signed “John Smith, Jr.”
The application indicated that the voter had been assisted by another person in completing it, but the absentee ballot envelope did not say he had been assisted in completing the ballot.
The signature on the application was “a funny line” that didn’t match the envelope signature, according to Ryan’s attorney. Additionally, the voter was listed as “Elizabeth S. Jones” on the voting rolls but had signed as “Liz Jones.” (Notably, “Liz” came to court and certainly didn’t say that that wasn’t her application or envelope. No one called her to testify.)
The voter was listed as “Alice Hamilton-Wenham” on the voting rolls, but had signed her name “Alice Hamilton.” Additionally, and this is a little unclear, while the address used by the voter on her absentee package (4 Bates Terrace, a Salem Housing Authority property) is a valid postal address, apparently that address does not exist exactly as such on the voting rolls. (LWVS knows from attending a training presented by the City Clerk that sometimes addresses have changed over time and the address in the State’s voter registration information system (VRIS) can differ somewhat from the current postal address.)
It was pointed out during the trial by the City’s attorney that the purpose of the absentee ballot application and envelope affidavit is to make sure that the absentee ballot is really being submitted by the voter in question. Exact matches of names, signatures, and addresses are not necessarily required, if the election official is convinced by the totality of the package. We’re glad we live in a state where “Elizabeth” isn’t disenfranchised for signing “Liz.”