FAIRHAVEN – Two contested ballots in the Board of Health race were disqualified by Judge Robert J. Kane at a hearing in New Bedford Superior Court on June 3.
One ballot was called for Peter DeTerra at a recount in late April, giving him a one-vote margin of victory over John Wethington. But Judge Kane said it wasn’t clear what the intent of the voter was. By disqualifying that vote, the Board of Health race became a tie.
On Tuesday, Mr. DeTerra said he is going to appeal. While the appeal is pending, a seat on a crucial board is left up in the air as it heads into a meeting on the wind turbines next Monday.
Explaining his decision to appeal, Mr. DeTerra said, “The Board of Registrars went by the intent of the voter, and Judge Kane didn’t go by the intent of the voter. He threw out a person’s vote. It was clearly by my name.”
Mr. Wethington’s attorney, Ann DeNardis, called for holding a new election June 25, to coincide with the special election for the U.S. Senate seat held by John Kerry. But Judge Kane refused to call for a new election, leaving that up to the town.
Because Mr. Markey wasn’t sure in court Monday if Mr. DeTerra would appeal, the judge asked Ms. DeNardis to proceed with calling witnesses. The witnesses were called to address her challenge on other factors, like the way ballots were handled by the town clerk, Eileen Lowney, in the days after the April 1 election.
Ms. DeNardis first called Mark Curtis of ABC6 in Providence who had done a news segment showing unsecured ballots in Ms. Lowney’s office the day after the election. Mr. Curtis said Ms. Lowney held ballots and allowed him to film ballots kept in insecured boxes and envelopes.
Mr. Markey asked Mr. Curtis about his “colleague” who works at the station, John Methia, who is active in Windwise. Mr. Methia has been very outspoken against the wind turbines. He also served Mr. Wethington’s interests as an official observer during the recount on April 22.
Mr. Curtis said he knew Mr. Methia, but was unaware of his participation as an observer in the recount.
The Windwise connection is a key element of the race with Mr. Wethington the preferred candidate of that group. Ms. DeNardis has also represented Windwise members in legal action against the town.
Under questioning by Ms. DeNardis, Ms. Lowney acknowledged she continued to count ballots after declaring Mr. Wethington the winner on election night, which is contrary to state law.
After counting some ballots in a write-in envelopes, Ms. Lowney reversed her earlier declaration on election night and declared Mr. DeTerra the winner by a small margin.
Very few people were left then at Town Hall and Ms. Lowney acknowledged that she allowed Executive Secretary Jeffrey Osuch to count the ballots with her. Ms. Lowney also admitted to other election irregularities under questioning.
The other vote the judge invalidated had not been accepted by the Registrars, but Ms. DeNardis wanted it called for Mr. Wethington. If it had been, he would have won the election.
Explaining his decision to invalidate a vote the Registrars called for Mr. DeTerra, Judge Kane said it had “a peculiar and confusing shape” next to the circle by the candidate’s name, but no markings within the circle.
Judge Kane said it looked like “a scribble over another marking” that conveys “a mixture of intentions.” He added, “The scribbling provides a reason to believe a cross out rather than an affirmative signal.”
Judge Kane listened intently to the witnesses and asked several questions. He asked to see the tapes the voting machines printed out showing the vote talleys at the town’s six precincts.
The judge continued the hearing for next Monday, June 10, from 2 to 4 p.m. The Board of Health has scheduled a meeting for noon that same day to discuss the state Department of Environmental Protection’s preliminary report on the two wind turbines on town land.
It was not clear on Monday whether Mr. DeTerra would be able to attend that meeting or whether he would be able to attend meetings of the Board of Health until the disputed election is resolved. It was also unclear whether any votes he cast at recent meetings would be invalidated.
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