House panel votes 2-1 to seat Kassner over Mirra

STATE HOUSE NEWS SERVICE

REPRESENTATIVES WILL BE ASKED to vote Wednesday on a party-line recommendation to declare Kristin Kassner, a Hamilton Democrat, the official winner in a contested recount she topped by a single vote over incumbent Republican Rep. Lenny Mirra.

More than three weeks after House Speaker Ron Mariano announced he would delay Kassner’s inauguration and task a special committee with vetting Mirra’s objections, the panel’s two Democrats published a report Tuesday recommending the chamber should declare the first-time candidate “the properly elected and qualified representative for the Second Essex District” and welcome her to its ranks.

The panel opted not to review any of the ballots Mirra contested, and its Democrat members argued that the five-term Republican ceded his ability to subject individual votes to scrutiny by waiting until after the Governor’s Council certified the recount results to file his lawsuit.

“When, as is true in this matter, a candidate is provided the prescribed time and process to object to ballots prior to certification, the House of Representatives is not a proper forum for calling balls and strikes on challenges to the determination of the intent of individual voters,” Rep. Michael Day of Stoneham, who chaired the panel, and Rep. Daniel Ryan of Charlestown wrote in the majority report. “Allowing such redress runs contrary to our system of government and its attendant commitment to timely election results.”

The Democrats added that they believe a close examination of individual ballots in Mirra’s case “unnecessarily opens the door for potential future mischief from unscrupulous candidates seeking to impugn the integrity of the Commonwealth’s elections.”

During a lightly attended informal session Tuesday, the House introduced the report and teed the matter up for consideration at a full formal session on Wednesday.

Unlike the special committee’s unanimous recommendation earlier this month to declare Democrat Margaret Scarsdale victorious in a recount she won by seven votes, the move to dismiss Mirra’s challenge and seat Kassner drew objection from the panel’s only Republican, House Minority Leader Brad Jones.

In his own report attached to the same file (H 53), Jones argued that lawmakers cannot reach a viable conclusion on who won the election without looking at contested ballots given the single-vote margin.

He contended that Day and Ryan engaged in “gross speculation without any foundation” by arguing that a probe of ballots would invite future misconduct.

“It is true, as the Majority Report states, that ‘the House of Representatives is not a proper forum for calling balls and strikes’ if we are talking about baseball. But, this is not America’s pastime, this is America’s fundamental constitutional right and one that a free and fair democracy cannot survive without,” Jones wrote. “It is the duty of this body and its members to uphold this fundamental constitutional right.”

Mirra, who remained in office on a holdover basis as the 2023-2024 term got underway, could not be reached for immediate comment Tuesday afternoon. He has previously said he would “accept whatever the committee decides.”

Kassner said in a statement she is “pleased” by the report’s findings. “I look forward to joining my fellow state reps very soon,” she said.

Under state law and judicial precedent, final authority over seating representatives rests with the House.

The original certified election results listed Mirra as the winner by a margin of 10 votes. Kassner sought a district-wide recount, which led to an 11-vote swing in her favor by the time it wrappd up on Dec. 8. The Governor’s Council certified her one-vote win on Dec. 14.

Mirra filed a lawsuit in Superior Court on Dec. 21, alleging missteps by local elections officials during the recount and challenging several ballots he believes should have been counted differently. Judges at several levels declined to intervene, writing that the House itself had jurisdiction over the matter.

The Georgetown Republican told the panel on Jan. 13 he did not believe there was any fraud, conspiracy or “nefarious intent” involved, attributing the problems he alleged to “human error.”

His attorney, former representative and U.S. Attorney Michael Sullivan, said local officials tossed one ballot where a voter wrote in the name “Donald Trump.” Sullivan told lawmakers that the voter wrote in Trump’s name, but only filled in the bubble for Mirra, meaning it should be counted in Mirra’s favor.

Kassner’s attorney, Gerald McDonough, told lawmakers he saw that specific ballot with both ovals filled in, which would represent an overvote that could not be counted.

Day and Ryan said in their report that Mirra “failed to provide any corroborating, objective evidence beyond pure speculation to support his claims that the irregularities regarding tally changes, mail-in ballot signature comparisons or unspoiled ballots that allegedly occurred in the count or recount caused actual harm.”

They also argued that Mirra waited too long to pursue a legal remedy, suggesting that a court might have been a more appropriate venue to examine individual ballots the Republican lawmaker felt were improperly counted.

“A majority of the Special Committee therefore today re-affirms a bright line: candidates may avail themselves of the courts to challenge election results only until the Governor and Governor’s Council issue a certification of election and the Secretary of the Commonwealth countersigns and transmits that Certificate of Election to the duly elected Representative-Elect,” they wrote. “Once that certification occurs, however, the exclusive jurisdiction over the election transfers to the House of Representatives.”

Day and Ryan said the committee’s work did, however, uncover “concerns regarding human error and, if occurring on a larger scale, their potential impact on future elections.” That conclusion could prompt calls to tweak the state’s mail-in voting and expanded early voting law, tools that were first rolled out during the COVID-19 pandemic and then made permanent.

“While these missteps had no impact on the integrity or the final outcome of the election, similar missteps in the future, if occurring on a larger scale, could affect future elections,” they wrote.

House leaders have assigned special committees to review disputed elections in the past.

In 2010, Republican challenger Peter Durant of Spencer topped Democrat Rep. Geraldo Alicea of Charlton by a single vote. Alicea sued, and after a judge ruled that one ballot in question should have been counted for the Democrat, the committee recommended ordering a new special election and the House followed suit. (Durant won the subsequent contest, and he remains a member of the House today.)

The latest split-panel recommendation hews a bit more closely to the 2003 case involving former Democrat Rep. Matt Patrick of Falmouth and Barnstable Republican Larry Wheatley. Dismissing a judge’s opinion that there were substantial enough concerns to warrant a new election, the Democrats on a special panel that year recommended naming Patrick the official winner, while the committee’s lone Republican member objected.

The House then voted along party lines to seat Patrick after hours of heated debate, where Jones — in his first term as minority leader — called the move a “bag job.”

Massachusetts Democratic Party Chair Gus Bickford on Tuesday praised the report Day and Ryan produced.

“While there too often are attempts to undermine the validity of our electoral process nationally, Massachusetts has once again proven that our system works and is beyond reproach,” Bickford said in a statement. “We also express our gratitude to all the election officials, volunteers and others, who were committed to ensuring this process was done with professionalism and integrity.”