Judge takes requests under advisement
By Sara Withee / News Staff Writer
Tuesday, June 29, 2004WORCESTER As an attorney for Robert Finnegan yesterday asked a judge to schedule a new man election, saying Uxbridge's voting procedures are heavily flawed, the town asked for a new vote in two other races.

     Attorney William McDermott Jr. of West Roxbury told Superior Court Judge Thomas P. Billings the flaws are showcased by two recounts of the April 13 men election, the town's failure to keep a voter tabulation tape and lack of affidavits giving residents standing to vote.

     "The personnel in the town has not been running elections the way they should be run," McDermott said during the afternoon hearing.

     One of the town's most serious failures, McDermott said, is not properly sealing ballots since the election. "This is very important because it's a fundamental statutory violation and there was access to the materials," he said.

     Attorney Lauren Goldberg of Kopelman & Paige in Boston, representing the town, asked Billings to deny Finnegan's request for a new man election but supports a new vote for the School and Finance committee races.

     Goldberg said the town is seeking a new election because of Billings' May 28 decision denying a recount of those two races and one for library trustee. She said the town is also appealing the decision, in which Billings said no one in those races filed an appeal within the 10 days allowed by state law.

     Yesterday, School Committee candidate John Karagosian, who lost a three-way race for two seats by 25 votes, said he would have appealed had he known during the appeal period the voting machines had malfunctioned.

     "I never protested the count originally because I trusted the machines," Karagosian said. "I've gone through this process for only one reason, so the doubts would be eliminated."

     Goldberg omitted the library trustee seat from yesterday's request because she said the difference in the race clearly exceeded the number of questionable votes.

     Billings took McDermott and the town's requests under advisement yesterday and did not say when he would issue his ruling about the election that has drawn close scrutiny since results were first announced.

     Incumbent Finnegan finished election day with 1,085 votes, coming in three votes over challenger Donald Sawyer and placing second in the four-way race for two men seats.

     An April 26 recount petitioned by Sawyer revealed some of the town's Accu-Vote machines improperly counted 171 votes for candidates as blanks because of the markers used to cast votes. Sawyer finished the recount five votes over Finnegan, leading the incumbent to file a lawsuit in Worcester Superior Court May 19, seeking another recount.

     On May 28, Billings granted Finnegan's request for a second recount but denied the town's request to check the other races because of the 10-day appeal period.

     The second recount - on June 3 - maintained the five-vote difference between Finnegan and Sawyer while giving first-place finisher Selectman Art DuBois one extra vote and taking one away from unsuccessful candidate James Dwyer.

     The overall number of votes changed among the election and the recounts, with 4,856 votes counted on election night, 4,864 at the April 26 recount and 4,860 at the June 3 recount.

     Yesterday, Goldberg denied the town failed to properly secure the ballots after the election, saying they have been kept in a safe in the town clerk's office and only inspected under the watch of other town employees, attorneys, a police officer and the town's cable access channel.

     "Our position is the materials were locked and sealed and there was no opportunity for fraud," Goldberg said.

     Goldberg admitted to problems with inactive voter registrations, but said it did not impact the results because the proper affidavits were secured after the election, which state law allows.

     "An inactive vote is still a voter and they get to vote on election day," she said.

     She also admitted the town's decision to send out 1,500 letters to check on voter registrations around election time was probably not ideal.

     "Certainly the fact that that kind of notification came near or around the election was unfortunate," Goldberg said. "There was certainly no intent to confuse voters."

     Goldberg said registrars create the voter list by using the annual street listing towns are required to produce, names of voters registered the previous year, state and local census filings and registrations made at the town clerk's office.

     Residents are placed on the inactive voter list if they fail to turn in their census forms, Goldberg said. They can correct this when they report to the polls by showing picture identification and filling out an affidavit saying they have maintained continuous residency in town, she said.

     Goldberg said there were 13 questions about inactive voters at the polls and admitted one voter maintained she lived in Uxbridge despite living in New York continuously for several years.

     "Until additional information was brought forward to show her voting was considered illegal, it's my opinion it must be counted," Goldberg said.

     Goldberg also disputed McDermott's claim that the town is required by state law to keep a voter tabulation tape.

     "This could all be resolved if the town knew how to produce a transaction tape," he said.