June 25, 2018
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In Maine Senate race, a mystery at the heart of democracy that needs investigation

George Danby | BDN
George Danby | BDN
By Janice Cooper, Special to the BDN

A ballot box on Long Island unsealed after Election Day for a recount of the Maine Senate District 25 race revealed 21 more ballots than on Nov. 4. The new tally was also 21 more than the “voter manifest,” the Election Day check-in list of live and absentee voters on Long Island. And all 21 new ballots were cast for the same Senate candidate, Republican Cathy Manchester. These mysterious new ballots were enough to tip the balance in the election, which originally went to Democrat Cathy Breen.

All Maine ballot boxes are required to be sealed as soon as the initial count is completed. However, since no investigation has been done, I can’t tell you if this happened on Long Island. I do know that the results of the voting on Long Island were not posted on the town’s website until about midnight, because I kept checking as my own election results were coming in. That’s a long time to count 171 votes. What’s the explanation? I don’t know, but the timing raises one more question about whether tampering could have occurred.

Smells fishy, doesn’t it, even for an island where the salt air is pungent? It’s a mystery, all right, but one that can be solved if a proper investigation is done — an investigation that hasn’t happened and might never unless public servants do their job.

The stakes are particularly high for my House district constituents — residents of Long Island and other communities in Senate District 25. Like all Americans, they have the right to be represented by the person who won the election fair and square — or at least to confidently know whether that is the case.

One of two things has to happen to put this matter to rest: the state attorney general or the U.S. Attorney should immediately conduct a thorough, independent criminal investigation of the circumstances of this discrepancy, one that involves questioning all relevant witnesses under oath and forensic experts.

The facts we know or think we know already suggest something distressingly out of the ordinary that could be foul play. Think of it this way: when a Long Island lobsterman was tragically found dead recently in his driveway under what police described as “suspicious circumstances,” did the town selectmen investigate the case? No, the state police with their forensic expertise were called in. Their finding of “accidental death” put the family and friends of Mike Hanson at peace because it was a factual, nonpolitical finding.

The second alternative is to leave any investigation to the Senate, which has the authority to determine whom to seat. But those are two separate matters, not one.

Our state Constitution provides that it’s up to the Senate to decide the qualifications of its members. However, that does not absolve state or federal prosecutors from doing their job. The Senate president-elect says he will appoint a special committee to look into the matter. However, whether or how independently that investigation is conducted is up to them. Because a majority of the committee will be members of the same party as the recount winner, the outcome is bound to be suspect as politically biased unless the investigation is truly impartial and thorough.

It’s entirely appropriate for a political body to make political decisions, as we do on proposed legislation or nominations. Sometimes, however, the Legislature must act in a quasi-judicial role, which is not easy.

Years ago, I was counsel to the U.S. House Judiciary Committee in an impeachment case concerning removal of a federal judge for alleged conspiracy to commit bribery. The case came to the House with a massive record from a criminal trial, grand jury and independent counsel’s investigation. Nevertheless, the House also conducted its own investigation, subpoenaing and deposing witnesses under oath, conducting forensic investigations, etc. We then presented our case first to the House of Representatives and then to the U.S. Senate. For the most part, the proceedings followed judicial rules of evidence. The judge was impeached, convicted and removed from office.

This is what a quasi-judicial legislative inquiry should look like. Whether the Maine Senate is prepared to go to this length remains to be seen. Frankly, they don’t have the resources or the expertise, even if they had the will.

That’s why we should leave it to professional prosecutors to conduct the inquiry. The Senate can seat whom it wants, but whether that decision stands or is set aside by the courts would very likely hinge on the outcome of a professional inquiry. Nothing less will do.

Rep. Janice Cooper, a Democrat, represents House District 47, which consists of Yarmouth, Long Island and Chebeague Island.

 


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