Challenge Of Vote At Open Town Meeting

Training for: Legal Notes

(Updated from the February 2017 Maine Townsman “Legal Notes”)

We are often asked how a vote at a traditional “open” town meeting may legally be challenged. Short of a lawsuit by a disappointed candidate or voter, the only method for legally contesting or appealing a vote, including a vote by written ballot, at an open town meeting is the procedure set forth in 30-A M.R.S. § 2524(3)(B). This provision states, “When a vote declared by the moderator is immediately questioned by at least 7 voters, the moderator shall make it certain by polling the voters or by a method directed by the municipal legislative body.”

There is no procedure for inspecting or recounting votes after an open town meeting has been adjourned. Hence, there is no requirement that written ballots or tally sheets be preserved. The right to request a post-election inspection or recount is available only in secret ballot referendums and elections conducted at the polls. (Municipal recount procedures generally follow state recount procedures, see 30-A M.R.S. §§ 2531-B, 2532.)

There is no inspection or recount procedure for open town meeting votes after adjournment because, unlike secret ballot elections, the results of a vote are immediately available to question as provided in § 2524(3)(B), and a challenge can be resolved instantly by polling the voters. If there is no such challenge and the meeting is adjourned, all votes are presumed valid.

Where a vote was to elect officials, the only legal recourse for an unsuccessful candidate is to file suit in Superior Court within 30 days after the meeting (30-A M.R.S. § 2533). A vote to elect someone cannot simply be voided by local officials or a subsequent town meeting. 

Where a vote was on any other matter, again, the only method for legally contesting it is via suit in Superior Court. However, unlike the election of officials, most other town meeting votes – except where contracts have been signed or bonds have been issued or other third-party rights have vested – can be reversed by calling another town meeting on the same question. Also, the municipal officers generally have discretion to call a town meeting to revote a question if, because of alleged irregularities, the board is uncomfortable relying on the action taken at a previous town meeting. (By R.P.F/S.F.P.)

NO SECRET BALLOTS @ BOARD MEETINGS

(Updated from the August 2016 Maine Townsman Legal Notes.)

Question: Our board customarily votes by show of hands or voice vote, but we have a controversial decision to make, and several board members have asked for a secret ballot vote. Is this legal?

Answer: No, it’s not. According to a 1981 opinion by the Maine Attorney General (Op. Me. Att’y Gen. (Oct. 6, 1981)), a secret ballot vote is not a permissible method of voting at any board meeting required to be open to the public by Maine’s Freedom of Access Act (FOAA). (Virtually all municipal board meetings are subject to FOAA’s open meeting requirements, see 1 M.R.S. §§ 402(2)(C), 403.)

The AG’s reasoning was simple: Section 401 of the law states that the FOAA intends for public bodies to deliberate and act openly. A secret ballot, being designed to ensure privacy and anonymity, defeats the purpose of the law because it shields officials from public scrutiny and personal accountability. Thus, it is an impermissible method of voting at open board meetings.

Although to our knowledge there was (and still is) no Maine court decision directly on point, we wholeheartedly agree with the AG’s opinion.

For more information on the requirements of Maine’s FOAA, see an MMA Legal Services’ information packet on the topic in the “members’ area” of our website (www.memun.org) (By R.P.F./S.F.P.)