                                                                   Supreme Court

                                                                  No. 2012-289-M.P.
                                                            (Dissent begins on Page 5)

                                                 :
               Carlos Tobon

                     v.                          :

  Rhode Island Board of Elections et al.         :


                                        ORDER

       This case came before the duty justice on October 3, 2012, pursuant to a petition

for a writ of certiorari and an emergency motion for expedited consideration. The

petitioner, Carlos Tobon (petitioner), requests this Court to order a manual recount of all

precinct, mail, and provisional ballots cast in the House District 58 Democratic Primary

Election (election) and an audit of all mail and provisional ballots cast in the election to

determine the qualification of each voter submitting those ballots.

       The full Court in conference considered the petition for writ of certiorari and the

memoranda submitted in opposition thereto by the respondents Rhode Island Board of

Elections (board) and Representative William San Bento, Jr. (Rep. San Bento)

(collectively, respondents), as well as the transcript of the hearing before the board. A

majority of the justices have determined that the petition be denied.

       The election took place on Tuesday, September 11, 2012. The vote tally at the

end of that day showed Rep. San Bento was leading by three votes, 543 to 540. The

petitioner requested a recount, which was conducted by optical scan voting equipment, in

accordance with G.L. 1956 § 17-19-37.1, on September 17, 2012. This first recount




                                           -1-
produced a tie between petitioner and Rep. San Bento, causing the board to perform two

more recounts, in like manner, the results of which can be found in the following chart:

               Election Day            1st Recount   2nd Recount    3rd Recount

San Bento         543                      543          545            544

Tobon             540                      543          543            543

Total            1083                    1086          1088           1087

As is apparent from the above chart, none of the four vote tallies was the same.

        The petitioner then requested a manual recount of all ballots cast in the election.

The board held a hearing on that request on September 19, 2012. At the end of that

hearing, the board voted to deny the request for a manual recount. The record of that

proceeding was provided to petitioner on September 27, 2012, and this petition for writ of

certiorari was filed on October 1, 2012.

        At the outset, we address an issue of timeliness. The respondents urge us to deny

the writ based on petitioner’s purported delay in filing his petition. The respondents

assert that petitioner waited until October 1, 2012―twelve days after the board voted to

deny petitioner’s request for a manual recount—before he filed this petition. However, it

is undisputed that the transcript reflecting the decision of the board was not available to

petitioner until September 27, 2012. Because the board failed to issue a written order or

decree denying petitioner’s request for a manual recount, the transcript of the proceedings

before the board represented the functional equivalent of a final decree from which relief

in this Court may be sought. We therefore are satisfied that the petition is not untimely,

nor did petitioner delay any filing in this Court.




                                           -2-
        The petitioner raises several issues in his petition, including a challenge to certain

mail ballots cast in the election.     He contends that the mail ballot of a registered

Republican was improperly counted and that the mail ballot of another voter was

improperly voided. However, G.L. 1956 § 17-20-26(a)(1)(ii) provides that mail ballots

are certified by the board “[b]eginning fourteen (14) days prior to and continuing on

election day.” All candidates are to be given notice of the day on which the mail ballots

for those candidates’ districts will be certified, § 17-20-26(a)(2), and an opportunity “to

witness the processing and certification of the ballots,” § 17-20-26(b).            “If upon

completion of the certification of a mail ballot no objection has been raised against the

certification of the ballot, the outer envelope shall be discarded[,]” § 17-20-26(d), and the

board will count that mail ballot on election day, § 17-20-26(f).

        An objection to the approval or exclusion of any mail ballot must be raised at the

time the ballot is certified. Because this did not occur, this issue is not properly before

this Court. 1

        Turning to the crux of the relief sought by petitioner–the manual recount of all

ballots cast in the election―it is the decision of a majority of this Court that § 17-19-37.1

precludes us from ordering a manual recount. That statute sets forth the requirements and

procedures for recounts in elections to public office.       In specified circumstances, it

provides for “a manual re-feeding of the computer ballots cast * * * into the optical scan

voting equipment.” Section 17-19-37.1(1). Nowhere does the statute provide for a

manual recount conducted other than by re-feeding the ballots into the vote-counting

machine. Significantly, while an earlier version of this statute contained a provision that

1
 Although the parties initially disputed the count of the provisional ballots, that matter
has been resolved to the satisfaction of all parties.


                                          -3-
allowed for manual recounts, the most recent iteration of this statute eliminated that

provision. See P.L. 2004, ch. 483, § 1; P.L. 2004, ch. 264, § 1; P.L. 1996, ch. 298, § 2;

P.L. 1996, ch. 277, § 2. As this Court noted recently, “[i]t is not our role to contort the

language of an unambiguous statute in order to include within its reach a situation which

it plainly does not encompass.” Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d 527, 536

(R.I. 2012).

       The majority’s decision is consistent with a previous order decided after § 17-19-

37.1 was last amended, in which we directed the board to conduct a recount of all

ballots. 2 See Alves v. Board of Elections, No. 2008-236-M.P. (R.I., filed Oct. 2, 2008)

(order granting stay); cf. Larisa v. Board of Elections, 911 A.2d 278 (R.I. 2006) (mem.)

(declining to stay an order preliminarily enjoining the board “to provide access to

Plaintiff * * * to copies of any and all ballots rejected by the Optech computer reader”).

The operative language in Alves, No. 2008-236-M.P., stated: “The Board is directed to

recount all ballots (including precinct, mail, and provisional) cast * * *. In conducting

the recount, the Board shall, whenever possible, determine voter intent with respect to

any and all ballots rejected by the machine.” (Emphasis in original.) As this language

makes clear, while we directed a recount in Alves, we never required a manual recount of

all ballots. In fact, the word “manual” does not appear in that order. Our order in Alves

contemplated a determination of voter intent, i.e. a manual recount, only with respect to

those ballots which were rejected by the machine during the recount.




2
  While we do not customarily cite to our unpublished orders, we do so here because the
parties relied upon that order in briefs submitted to this Court and on the record before
the board without objection.


                                         -4-
        Here, the petitioner has already requested and received the relief specified in § 17-

19-37.1 and in our prior order in Alves: a manual re-feeding of ballots and a manual

recount of those ballots rejected by the machine. Any further relief would contradict both

the express mandate of the legislature and prior orders of this Court. Accordingly, the

petition for writ of certiorari is hereby denied.



        Chief Justice Suttell, along with Justice Goldberg, dissenting. As Americans,

our most fundamental political right is the right to vote. “No right is more precious in a

free country than that of having a voice in the election of those who make the laws under

which, as good citizens, we must live. Other rights, even the most basic, are illusory if

the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964); see also

Parella v. Montalbano, 899 A.2d 1226, 1233-34 (R.I. 2006) (App’x A). Our Rhode

Island Constitution dictates that “[i]n all elections held by the people for state, city, town,

ward or district officers, the person or candidate receiving the largest number of votes

cast shall be declared elected.” R.I. Const., art. 4, sec. 2. The conduct and integrity of

the election process is, therefore, of the utmost public importance.

        The petitioner seeks an order from this Court requiring a manual recount of all

precinct, mail, and provisional ballots cast in the election. We would grant the request

and order such a recount. To be sure, G.L. 1956 § 17-19-37.1(1) provides for a recount

only “by a manual re-feeding of the computer ballots cast * * * into the optical scan

voting equipment.” The General Assembly, however, has defined a “Vote” as “any mark

made with the appropriate marking device within the optech ballot voting area between

the head and tail of the arrow on the computer ballot next to the party, candidate, write-in




                                           -5-
candidate or question, as is applicable, for whom the voter casts his or her ballot.”

Section 17-19-1(7).    Moreover, the statutory framework concerning the conduct of

elections requires that “[a]s part of the voting process, there shall be created a physical

ballot showing the votes cast by an individual voter which is capable of being hand

counted so that electronic recorded device totals can be checked for accuracy.”

Section 17-19-3(a)(4)(v). As to mail ballots, § 17-20-24 provides in relevant part that

“[n]o defect in the marking of the appropriate space associated with casting a vote shall

invalidate any ballot or a vote for any candidate, where the intention of the voter is

clearly indicated.” (Emphasis added.) These provisions anticipate that under certain

circumstances, some of the ballots cast in a given election would be read manually, in

order to determine the intention of the voter.

       In the primary election at issue, the ballots have been counted on four occasions,

each resulting in different totals. At the hearing before the board, Robert Rapoza, the

director of elections at the board, explained one possible reason for the discrepancy as

follows: “These ballots have gone through the machine now numerous times, and there

may have been a mark in the pathway that was not picked up on the second reread but

was picked up on the fourth reread or vice versa.” The pathway, as clarified by Mr.

Rapoza, is the “the blank [area] between the head and the tail of the arrow.” Further, Mr.

Rapoza testified that “one of the provisional ballots could not be read by our reader

because it was marked incorrectly by the voter and needed Board determination.”

       This Court has, in the past, ordered the board to depart from the literal

requirements of § 17-19-37.1 by directing the board on two occasions to “whenever

possible, determine voter intent with respect to any and all ballots rejected by the




                                          -6-
machine.” Alves v. Rhode Island Board of Elections, No. 2008-236-M.P. (R.I., filed

Oct. 2, 2008) (mem.); Bennett v. Rhode Island Board of Elections, No. 2008-233-M.P.

(R.I., filed Oct. 2, 2008) (mem.).

          According to the papers filed in this case, respondent board has, in fact, conducted

a manual recount of the votes that were rejected by the mechanized reader. According to

the board, petitioner “has received a copy of every ballot (both precinct, mail and

provisional) that was rejected by the OPTECH reader” and “[e]ach of these rejected

ballots was reviewed by the Board Commissioners to determine the voter’s intent.”

Thus, the board has manually counted some, but not all of the ballots cast in this primary

election and, as noted, fed the precinct ballots into the mechanized reader numerous

times; the votes each time were different, resulting in a one-vote majority for

Representative San Bento.

          The majority is correct that our orders in Alves and in the case of Bennett,

decided the same day, do not include an explicit direction to manually recount the ballots

that were rejected by the mechanized reader and that the word “manual” is not contained

in those orders; such a distinction, however, is irrelevant. In each case, this Court

ordered, in no uncertain terms, that the board―not a mechanized reader—“determine

voter intent with respect to any and all ballots rejected by the machine.” 3 Furthermore,

this Court directed, that “the parties shall be permitted to observe the process whereby the

Board determines voter intent.” As noted, the real issue in this case is whether or not a

manual recount should be ordered with respect to the ballots cast in the precincts.




3
    To its credit the board followed this mandate in the case before us.


                                            -7-
        In our judgment, the present circumstances, where there is but a one vote

difference after four machine counts, each resulting in different totals, warrant a manual

recount. We would, therefore, order the Board of Elections to hand count all the ballots.

Such a recount, we believe, would be consistent with the constitutional requirement that

the “candidate receiving the largest number of votes cast shall be declared elected.” R.I.

Const., art. 4, sec. 2.



        Entered as an Order of this Court, this 5th day of October, 2012.

                                                     By Order,



                                                     ____________/s/________________
                                                                Clerk




                                         -8-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Carlos Tobon v. Rhode Island Board of Elections et al.

CASE NO:            No. 2012-289-M.P.

COURT:              Supreme Court

DATE ORDER FILED:   October 5, 2012

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Rhode Island Board of Elections

JUDGE FROM LOWER COURT:

                    N/A

ATTORNEYS ON APPEAL:

                    For Petitioner: Armando E. Batastini, Esq.

                    For Respondent Rhode Island Board of Elections:
                    Raymond A. Marcaccio, Esq.

                    For Respondent William San Bento, Jr.:
                    Jon M. Anderson, Esq.
                    Frederic A. Marzilli, Esq.
