A busy season for recount lawyers
FROM A 15-VOTE margin in the Quincy mayor’s race to a dead heat in the contest for mayor of Melrose, November’s municipal elections produced a surfeit of electoral cliffhangers. The razor-thin margins led to an anxious night of nail biting for candidates, but they were music to the ears of one group: the small coterie of Massachusetts lawyers who specialize in recount cases.
“This seems to be a bumper crop,” says William McDermott, one of the state’s leading election lawyers, of last fall’s too-close-to-concede elections, which ranged from Gloucester to Leominster. McDermott, who usually has three or four cases after each Election Day, had to juggle seven recounts in his November schedule.
No one has a clear explanation for the brisk business in recounts. Heather Gerken, an election law specialist at Harvard Law School, speculates that the Florida presidential recount spectacle may simply have raised candidate awareness of how much election outcomes can hinge “on the judgment of people making the counts.” If that were the case, she says, “lawyers would be busier even if the number of close elections remained constant.”
Whatever the reason, and chance seems as plausible an explanation as any, the recount lawyers aren’t complaining. The four who occupy the top shelf of the Boston-area recount bar– McDermott, Dennis Newman, Haskell Kassler, and Burton Nadler–handled a total of 21 cases last fall, including multiple cases in the same town.
One of the calls came from Robert Dolan, a Melrose alderman who finished the night tied with school committee member Richard Connolly in the race for mayor of the city of 28,000 just north of Boston. “We just couldn’t believe it,” says Dolan, whose first move was to retain Newman. For good measure, he later hired McDermott as well.
The next day, city officials examined four ballots that weren’t recorded by Melrose’s optical scan voting system. Three were found to be blank, but one was judged to be a vote for Dolan, giving him a one-vote lead going into the full manual recount. At 7:30 on the morning of the re-tally, Newman drilled Dolan’s 30 campaign observers for two hours on what to look for during the ballot review. “We got the foot soldiers, but Dennis was the general,” says Dolan, who picked up nine votes and wound up the declared victor by a 10-vote margin.
Though a couple of the Bay State’s vote-count experts admit sheepishly to having represented a Republican here or there, all four are devout Democrats, and all four went to Florida as part of the Gore campaign’s legal team after the contested 2000 election. At home, though, they can find themselves collaborating on one recount (as Newman and McDermott did in Melrose) while facing off in another (they were on opposite sides of the Quincy recount). In other cases last fall, Newman faced Nadler and McDermott squared off against Kassler.
Like all true hired guns, the ballot counselors are flexible, able to make whatever legal argument most helps their client. Thus, Newman found himself in Florida echoing the Gore campaign’s call to make sure “every vote is counted” even though he had passionately pushed the contrary position four years earlier in one of the most celebrated Massachusetts recount cases.
In the 1996 Democratic primary for the 10th Congressional District, Philip Johnston appeared to have eked out a 266-vote victory over William Delahunt out of nearly 50,000 ballots cast. When the recount fight moved into the courts, Newman represented Johnston, while Kassler represented Delahunt. The latter side won out, with Delahunt ultimately declared the victor by 119 votes after a Superior Court judge and the state’s Supreme Judicial Court ruled that indentations on punch-card ballots were sufficient indication of voter intent to be counted in the tally.Newman argued in vain for a stricter standard, saying the ballots had been handled 15 times by election officials after voters were through. “I don’t think they are handled with kid gloves,” Newman told the SJC justices. As for his Florida epiphany on the validity of dimpled ballots, Newman quips, “I saw the light through the chads.”
To this day, Johnston, now the state Democratic Party chairman, wonders whether his race might have turned out differently had he simply corralled the whole herd of top recount lawyers for his legal team. The advice he regularly dispenses to candidates who find themselves in tight tallies is a twist on Shakespeare’s well-worn barrister barb: “First, hire all the lawyers.”