BOSTON, Mass. (SHNS)–The ongoing saga featuring two ostensible state representatives-elect who cannot take their seats until their future colleagues decide if they in fact won their elections is unusual, complicated and confounding. But it is not unprecedented.
At least twice in the past two decades, a special House panel has kicked off a new session by embarking on an examination of narrow, contested results in a state representative race, intersecting with and sometimes conflicting with the judicial branch along the way.
In one case, the victorious incumbent started his next term as a holdover until the entire House voted to formally seat him, in the process ignoring a judge’s call for a new election.
In the other case, the panel postponed inauguration of the ostensible winner and kept the defeated incumbent in office for several months, then ordered a special election redo, fulfilling what a judge recommended.
Those proceedings, and a 2003 Supreme Judicial Court opinion declaring the House itself “the sole arbiter” of disputed claims over who should become state representatives, are back in the spotlight this week as the latest iteration of the special committee plans on Friday to dive into what to do about two districts where Democrats won based on extremely narrow, certified recounts, and Republicans continue to object.
A 20-Year-Old SJC Ruling
Two decades ago, first-term Democrat Rep. Matt Patrick of Falmouth squeaked out a reelection win for his Cape Cod seat over Barnstable Republican Larry Wheatley by 12 votes out of the nearly 18,000 cast. A recount extended Patrick’s margin of victory to 17 votes.
Wheatley filed a lawsuit in Superior Court, alleging irregularities in the administration of the election, and he found a sympathetic audience. Barnstable Superior Court Judge Richard Connon ruled on Dec. 30, 2002 that there were substantial enough concerns, including the closure of one polling place for at least 35 minutes and at least 20 ballots distributed without the contest for state representative on it, to cast doubt over the outcome.
Connon declared that “a new election is necessary.”
Lawmakers, who are responsible for calling special elections, were not quick to respond. Speaker Thomas Finneran tasked a three-member committee with reviewing the developments, and its members — then-Majority Leader and eventual Speaker Sal DiMasi, Rep. Eugene O’Flaherty and Rep. George Peterson — convened a hearing on Jan. 13, 2003 to hear from both the Patrick and Wheatley camps.
In the meantime, although he did not take the oath of office at the start of the term alongside his 159 colleagues, Patrick remained in the seat, where he cast votes, served on committees and collected paychecks.
It took more than two months for the panel to announce its findings. On March 18, 2003, the two-Democrat majority concluded that Patrick indeed won the election and that the Massachusetts House has jurisdiction over “returns, elections, and qualifications of its own members.” Peterson, the committee’s lone Republican, dissented and argued that the House should schedule a new election to comply with the judge’s order or at least ask the state’s highest court to weigh in.
“The Legislature has seen fit to ignore the court order and to thwart democracy,” Minority Leader Brad Jones, then serving his first term as the top House Republican, said at the time. “This has been a bag job from [the] beginning.”
Two days later, the House capped off a raucous four-plus hours of debate by voting along party lines to accept the committee’s report, declaring Patrick the winner. Along the way, representatives rejected a Jones proposal that instead called for a new election.
But the fight did not end there. Republican Gov. Mitt Romney, just months into his first term, refused to administer the oath of office to Patrick, saying through a spokesperson that it would “cause serious harm to Mr. Wheatley by swearing in his opponent while the court case is still open.”
Wheatley’s legal battle seeking a redo of the election made it all the way to the SJC, which in August 2003 issued an opinion that continues to loom over the inauguration disputes this term.
Justices ruled against Wheatley, saying that a court’s power to fix any election missteps “has a limitation” enshrined in the Massachusetts Constitution. Article 10 of that document reads that “the house of representatives shall be the judge of the returns, elections, and qualifications of its own members.”
“In the opinion of the Secretary, the article grants the House the final authority to decide who it will seat as a member. Wheatley, on the other hand, reads art. 10 to reserve for the House only the ability to count the returns of a valid election. He argues that when a court, pursuant to [section] 59, declares an election to be invalid, the House may not act to seat a member,” Justice Judith Cowin wrote in the decision. “Our precedent indicates that the Secretary’s position is the correct one. The House’s role as the sole arbiter of a petitioner’s claim to a seat as a representative is by now firmly settled as a matter of State constitutional law.”
Even if a court orders the issuance of a certificate of election, the SJC wrote, “that certificate is nothing more than evidence that a candidate may present to the House in support of a claim of election.”
“The House, and only the House, has jurisdiction to resolve such a claim,” the 2003 decision reads.
2011: House Takes a Different Approach
Eight years after the SJC ruled that the House has that decision-making authority all to itself, representatives resolved another disputed recount by agreeing with a judge.
Incumbent Rep. Geraldo Alicea, a Charlton Democrat, lost his 2010 reelection bid by a single vote in a recount to Republican challenger Peter Durant of Spencer. Alicea challenged in court, arguing that an absentee ballot Southbridge officials tossed should have been counted in his favor because the voter filled in the bubble near Alicea’s name, albeit just outside the oval.
Over the objections of Jones, who called allowing Alicea to retain the seat “a mistake,” the House allowed the Democrat to continue serving in a holdover capacity and appointed another special committee — which once again featured O’Flaherty and Peterson now alongside Democrat Rep. Michael Moran — to review the situation.
Worcester Superior Court Judge Richard Tucker ruled on Feb. 1, 2011 that the ballot in question should have been counted in Alicea’s favor, writing that it appeared to have been filled out by someone “tremorous” or with “compromised eye sight.” With that single additional vote for Alicea, the result became a tie, and Tucker ordered for a new election to take place.
And then House Democrats opted to take a different route than they did in the Patrick-Wheatley showdown: they followed Judge Tucker’s order.
On Feb. 9, 2011, all three lawmakers on the panel endorsed scheduling a new special election. House Speaker Robert DeLeo made that action official a day later.
“Upon final examination of all available evidence, the special committee concludes that the election is a tie vote and that there was a failure to elect a Representative for the Sixth Worcester District,” Moran, O’Flaherty and Peterson wrote in their report, according to past News Service coverage.
The House’s decision wound up a detriment to Alicea’s political career and a blow, albeit minor, to the Democrat supermajority: when the May special election rolled around, Durant topped Alicea by 55 votes, securing a seat in the minority caucus that he still holds today.
Gearing Up For A Closer Look
Jones, who was a vocal figure in the previous seat-filling debates, will now have an even greater role to play as the lone Republican on the three-member committee alongside Democrat Reps. Michael Day and Daniel Ryan.
In the meantime, both Kristin Kassner of Hamilton and Margaret Scarsdale of Pepperell remain in limbo nearly a month after the Governor’s Council’s Dec. 14 vote to certify their victories. The pair both said they are working from their districts and holding conversations with constituents, but neither has taken the oath of office.
Georgetown Republican Rep. Lenny Mirra, who filed a lawsuit challenging his one-vote recount loss to Kassner on Dec. 21, remains in office representing the reshaped Second Essex District as a holdover until the House makes a final decision. His challenges in court have been unsuccessful so far, with judges writing that jurisdiction over the matter lies with the House.
Fellow Republican Andrew Shepherd of Townsend, who lost to Scarsdale by seven votes following the recount in the First Middlesex District, filed his own lawsuit on Dec. 23. A judge has not ruled in that case.
All four candidates indicate they plan to participate in Friday’s hearing before the special committee. The hearings will be open to the public but the committee is accepting testimony on an invitation-only basis.