Recount revisited

Cheshire County Superior Court Civil Clerk Jessica Masterson and Judge David W. Ruoff count ballots Thursday in the race for a Stoddard selectboard seat.

STODDARD — Even as vote totals have shifted throughout an election in June, a recount and a lawsuit in July, and a second, court-supervised recount Thursday, the race for a Stoddard selectboard seat has maintained a one-vote margin.

The latest result shows challenger Stephen McGerty winning the seat from incumbent Charles Fosberry 109-108, confirming the outcome of a previous recount that had reversed the initial result. The court-ordered recount Thursday means McGerty now can take office unless there’s an appeal.

In the June 23 election, the initial results showed Fosberry defeated McGerty for a three-year term, 108-107. McGerty then requested a recount, which took place July 3, and saw his vote count rise by three to 110 and Fosberry’s by one to 109.

Five days later, Fosberry filed a lawsuit in Cheshire County Superior Court questioning the recount’s validity due to how the ballots were handled between the election and the recount. He said at the time that he wanted the results of the recount voided, and the initial tally from the June election upheld.

The lawsuit resulted in a court-ordered recount Thursday morning. Each of the parties to the lawsuit — Fosberry, McGerty and the town of Stoddard — chose three Stoddard voters to serve on an advisory commission that oversaw the recount. Cheshire County Superior Court Judge David W. Ruoff told the panel during the hearing that its job was to examine each ballot and determine if they had any objections.

“If you cannot infer the intent of the voter, it’s not a good ballot,” Ruoff told the group at the hearing, which was held in a courtroom and broadcast live via the Cisco Webex online meeting platform. “… If there’s any ambiguity, it’s not a good ballot.”

But neither the nine-person commission nor representatives for the parties in the lawsuit raised any objections during the roughly 90-minute hearing. After the commission and parties reviewed the ballots, Ruoff and Civil Clerk Jessica Masterson counted the ballots independently and arrived at the same total: 109 votes for McGerty and 108 for Fosberry. Ruoff said the parties now have 30 days to file an appeal in the case.

“I’ve won twice, but I have to wait to see if there’s going to be an appeal,” McGerty said in a phone interview after the hearing Thursday. “... This has just been downright dumb.”

Fosberry, however, said in a separate phone interview that he does not intend to appeal the court order. His attorney, Joseph S. Hoppock of Keene, confirmed via email that they do not plan to appeal. Fosberry declined to comment further on the outcome of the case.

At the end of the hearing, Hoppock questioned the total number of votes cast in the race. He said 219 votes were cast in the original election. Six ballots were not included in the tally Thursday because they either were left blank for the selectboard seat, or included a vote for a write-in candidate, Hoppock added.

“The vote total is 108 to 109, and that’s 217 ballots for a total of 223 ballots cast,” Hoppock said in court. “Somehow, there’s four more ballots in that box after election day.”

Ruoff said he could speak only to the ballots that the commission reviewed and approved during the hearing.

“I don’t know how to account for what a prior total was,” Ruoff told Hoppock. “All I know is what was in this box, that the commission approved and didn’t see any evidence of any fraud or any type of forgery or anything like that. Nine independent people reviewed every ballot. I reviewed them. I didn’t see anything, so I don’t know how the totals — your totals — mismatch.”

Hoppock said after the hearing that he’s not sure how the total number of ballots went from 219 in the election-day tally and first recount to a higher number on Thursday.

“It is possible that the election day count and the July 3rd recount were both in error, but I am at a loss to explain how 4 extra ballots ended up in that allegedly sealed ballot box,” Hoppock said in an email.

Fosberry’s lawsuit claims the handling of the ballots after the election raises questions about the validity of the initial recount. According to the lawsuit, Town Clerk Karen C. Bell read a statement at the beginning of the July 3 recount acknowledging she’d opened the sealed box of ballots days prior. Fosberry also alleged Deborah McGerty — who is the deputy town clerk and tax collector and is married to his challenger — had access to the box before it was resealed.

Bell said in a written statement to the selectmen that on June 30, she opened the sealed ballot box because she realized she had accidentally left absentee ballot request forms, information she needed to put into an online system municipalities can use to send election results to the state, and notes she’d taken on election day inside the box. She said she then closed the box and kept it beside her for the rest of the day before re-taping it and returning it to a locked closet.

Bell said she notified the N.H. Municipal Association, the N.H. Secretary of State’s Office, Town Moderator Daniel A. Eaton and selectmen of her mistake.

She and Deborah McGerty declined to discuss the case with The Sentinel in July. Reached Thursday, Bell said, “There’s really not much to say. He thinks that there was tampering, and there wasn’t. That’s pretty much it.”

By court order, the Cheshire County Sheriff’s Office collected the ballot box from Bell and turned it over to the the court, where it was kept in a secure evidence room before Thursday’s hearing.

Hoppock said Thursday that the burden of proof for a plaintiff in a case like this is high, and the court could order a new election only if disputed ballots affected the result of the election, or if there was fraud.

“Here, while suspicions exist, there is no direct proof as to who may have placed 4 extra ballots in that box,” he said in an email. “It is also plausible that the election day count AND the July 3rd recount were incorrect. Anything is possible, I suppose.”

It’s not yet clear when the transition will happen and McGerty will take his seat on the selectboard. Fosberry, who has been serving as a selectman and attending meetings while the lawsuit was being resolved, said he believes the court order is effective immediately, but McGerty said he had not been told when he can be sworn in.

“As of right now, I’m in limbo,” he said Thursday afternoon. And in the meantime, McGerty, who previously served as a selectmen, added, he is eager to serve the town.

“I just want to work for the people. I have no agenda,” he said. “… I just want to do the right things for the town.”

Jack Rooney can be reached at 352-1234, extension 1404, or jrooney@keenesentinel.com. Follow him on Twitter @RooneyReports.