WINSLOW — The Town Council decided to hold off on voting on an order to call for a special election in an unresolved race for a seat on the council at its meeting Monday night so that they could wait for a legal question surrounding the election be resolved first.

The legal proceeding is that of a sitting councilor who has filed a suit with the Maine Supreme Court against the town of Winslow contesting a recent election recount that resulted in a tie with a challenger, seeking to have a single ballot invalidated.

During the regular election in November, District 3 Councilor Jerry Quirion, 71, was declared the winner over challenger Lee Trahan, 46, a member of the School Board, by a margin of three votes. Trahan then requested a recount, which ultimately resulted in a 173-173 tie.

Quirion, contesting that result, has targeted a ballot that was filled out sloppily. If the court finds that the ballot is indeed invalid, the decision would sway the election in his favor.

Once the order was on the table for discussion, at-large Councilor Keneth Fletcher raised a concern about voting to go forward with a special election before the court made its decision. Fletcher asked the council to either strikethrough the language about the council race in the order, or push back the special election altogether to allow 30 days between their vote and the town clerk to print the ballots.

The town’s attorney, Bill Lee, said that he heard from Maine’s Supreme Judicial Court Monday morning and that the town should receive a procedural order from the court on whether they’ll hear the case or not within 48 hours. He said that the court is giving the matter its highest priority and that if the court does take up Quirion’s suit, then there is a good chance the suit will be resolved within 30 days.

Since the special election, now slated for March 13 of next year, is planned to coincide with a referendum vote to dissolve Alternative Organization Structure 92, the council decided not to change the date of the special election. The original order contained language calling for both the referendum on the school district and the council seat so the panel took out the language regarding the contested seat for this reading of the order.

The council voted 6-0, with Quirion abstaining, to call for a special election on the question of whether or not to dissolve AOS 92 in the spring.

If the court decides not to take up Quirion’s suit, or if they decide that the ballot is valid, the council will add the language about the open council seat back to the order for a second reading and vote scheduled for Jan. 2.

If the state’s highest court takes up the case, they will be trying to determine the intent of a person who failed to follow directions while filling out their ballot. The person did not fill in any ovals next to candidates’ names, but rather made marks along the ballot’s dotted border.

The voter appears to have made marks to the left side near both Quirion’s and Trahan’s names, although the mark for Trahan is a bit larger and nudges over a boxed border a tick away from the oval.

Daniel Walker, a partner at Preti Flaherty law firm in Augusta, who has been practicing election law for 17 years, said the court will be following the secretary of state’s rules on determining voter intent as the guidelines used to decide whether the vote is counted for Trahan or whether it is thrown out. The decision will come down to the court’s interpretation of the ballot in regard to two provisions within that set of rules.

The first of such provisions, under section 4, determining voter choice, is categorized as marks made outside the voting indicator, or put more simply, the ovals next to a candidates name. That provision states a vote must be counted if “the mark made by the voter is near, although not within, the voting indicator and is closer to the indicator or name of that candidate or ballot question choice than to any opposing candidate or ballot question choice.”

Walker said the court might find this provision persuasive. He said the ballot was somewhat consistent since the voter made similar marks along the border next to the uncontested candidates for School Committee, on the left, and a seat on the Kennebec Water District, on the right, but made no marks for two uncontested candidates running for library trustee in the middle of the ballot.

However, Walker said the mark near Quirion’s name adds doubt to whether that rule would decide the matter.

Walker said if he were the judge reviewing the ballot, he would determine the voter’s action to be an overvote. An overvote, which falls under section 3, invalid votes, takes place “if the voter indicates a choice for more candidates for an office than there are vacancies to be filled, or indicates more than one choice for a ballot question, it is an invalid overvote and may not be counted.”

Walker sees the vote near Quirion’s name as an overvote, but said it would be a close call and will weigh heavily on what the court sees as the voter’s intent.

“Every case is going to be slightly different,” Walker said. “But (the court’s) overwhelming and No. 1 concern is voter intent.”

Either candidate was allowed the opportunity to file with the court because of the tie declared by the recount.

The recount was performed Nov. 17 by Town Clerk Pamela Smiley at the request of Trahan for the three-year seat.

The original ballots were counted by machine, but in the recount the 384 votes were counted by hand by Smiley and two other counters.

Lee told the Morning Sentinel in November that it was up to the town clerk to determine whether a ballot is valid, and in this case Smiley made the determination that the ballot in question did count for Trahan.

Emily Higginbotham — 816-9238

ehigginbotham@centralmaine.com

Twitter: EmilyHigg