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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 96-771
MARY G. KIBBE
v.
TOWN OF MILTON & a.
September 18, 1997
McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the brief and orally), for the plaintiff.
McNeill & Taylor, P.A., of Dover (Lynne M. Dennis and Malcolm R. McNeill, Jr. on the brief, and Mr. McNeill orally), for the defendants.
BROCK, C.J. The Superior Court (Fitzgerald, J.) ruled that the use of stickers bearing a particular candidate's name as write-in votes in a town election did not invalidate the election of that candidate because the "clear intent of the voters" should prevail over a statute prohibiting the attachment of stickers to ballots. See RSA 659:65, II(b) (1996). The plaintiff, Mary G. Kibbe, an unsuccessful candidate in the election, appeals this ruling. We reverse and remand.
During a town election in the defendant Town of Milton (town) in March 1996, the plaintiff ran for the position of selectman. She and one other candidate, "Chip" Gehres, were the only two candidates for that position whose names appeared on the printed ballot. Just before the election, a third candidate, Joan Tasker Ball, entered the race by staging a write-in campaign. On election day, Ball distributed stickers to voters at the polls. Printed on the stickers was "Joan Tasker Ball" with an "X" to the right of the name to indicate a vote for Ball. The parties agree that the stickers fit precisely within the contours of the blank write-in space on the ballot. More than one hundred voters placed stickers in the write-in space provided on the ballot for the office of selectman. See RSA 669:23 (1996).
At some point during election day, a question was raised as to the legality of the sticker votes. Following advice from the town's attorney that the stickers were illegal under RSA 659:65, II(b), the election moderator declared the sticker votes invalid. Accordingly, when the votes for selectman were tallied, the sticker votes for Ball were not counted. The tally yielded the following results: 190 votes for the plaintiff, 174 votes for Gehres, and 107 handwritten write-in votes for Ball. The moderator disallowed 113 sticker votes for Ball, and the plaintiff was declared the winner of the selectman race.
Upon Ball's request for a recount, see RSA 669:30 (1996), the defendant Town of Milton Board of Recount (board) met to decide whether to count the sticker votes. By a three-to-two vote, the board decided to count those stickers that were placed exactly in the write-in space for selectman, with an "X," either on the sticker or handwritten, appearing in the proper place to the right of the candidate's name. Following a recount, Ball was declared the winner with a total of 215 votes. The plaintiff, with a recount total of 191 votes, appealed to the superior court. See RSA 669:35 (1996).
After ordering the parties to submit statements of fact and memoranda of law, the superior court upheld the board's decision. The court found that the use of stickers was not in accordance with the exception provided in RSA 659:65, II(b). Nonetheless, the court found that the voters who placed stickers in the write-in spaces intended to vote for Ball, and that invalidating the sticker votes as defective under the statute would disenfranchise those voters. See N.H. CONST. pt. I, art. 11. In light of these findings, the court ruled that RSA 659:65, II(b) is only "directory in nature" in cases "where the clear intent of the voters is evident," and that, accordingly, the voters' intent to vote for Ball prevailed over the statute.
The plaintiff appeals, arguing that the superior court erred by ruling that the statute is "directory" in nature rather than mandatory, and that "the clear intent of the voters" is sufficient to override the express prohibitory language of the statute. The actual vote count is not in dispute; the parties agree that if the sticker votes are counted, Ball's election would stand, but if the sticker votes are invalidated as defective, the plaintiff would have a plurality of votes.
RSA 659:65, II provides: "A ballot shall be regarded as defective in part and that part shall not be tabulated if . . . (b) The ballot has attached to it an adhesive slip, sticker, or paster not prepared in accordance with RSA 656:21 in the space for any office, but the rest of the ballot admits to counting . . . ." RSA 656:21 (1996), in turn, authorizes the use of stickers by election officials, in the event of a candidate's death or disqualification after the ballot has been printed, to affix the name of a substitute candidate to the ballots prior to the election. The superior court found that the stickers distributed by Ball were not prepared in accordance with RSA 656:21.
As a preliminary matter, we address the defendants' suggestion that RSA 659:65, II(b) does not apply to town elections. RSA 669:25 (1996) provides that RSA chapters 658 and 659 apply in towns using the official ballot system. Both the board and the superior court assumed, in rendering their respective decisions, that the statute applied. The defendants do not contend that the town has not adopted the official ballot system, see RSA 669:25, and we note that the election procedures used in this case were inconsistent with the unofficial ballot system, cf. RSA 669:55 (1996) (providing no names of candidates shall be printed on unofficial ballots). On appeal, the defendants contend that applying RSA 659:65, II(b) to town elections would create an inconsistency with RSA 669:22 (1996), which permits a town clerk to remove a withdrawn candidate's name from printed ballots using pasters. They argue that RSA 659:65, II(b) would render the ballots prepared pursuant to 669:22 defective because they were not prepared in accordance with 659:21, the only enumerated exception to 659:65, II(b).
We perceive no inconsistency in applying RSA 659:65, II(b) to town elections. RSA 669:22 and RSA 656:21 allow the use of stickers or pasters in essentially the same circumstances: in the event of the disqualification of a candidate due to "age, domicile, or incapacitating physical disability," RSA 655:38 (1996); RSA 669:22, or death, RSA 655:39 (1996); RSA 669:22. Furthermore, RSA 669:25 expressly provides that when RSA chapters 658 and 659 are applied to town elections, the town clerk shall perform duties delegated to the secretary of state under those chapters; RSA 656:21 therefore would allow the town clerk to authorize the use of pasters in the same general circumstances provided in RSA 669:22. Construing these provisions in this manner does not create an absurd result. See O'Brien v. O'Brien, 141 N.H. 435, 436, 684 A.2d 1352, 1353 (1996).
We turn now to the plaintiff's argument that the superior court erred in ruling that RSA 659:65, II(b) is directory, rather than mandatory, in nature. "In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Gisonni v. State Farm Mut. Auto. Ins. Co., 141 N.H. 518, 519, 687 A.2d 709, 709 (1996) (quotation omitted). We look first to the language of the statute, "and where possible, we ascribe the plain and ordinary meanings to words used." Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (quotation omitted).
We conclude that the statute is mandatory. But see Keene v. Gerry's Cash Mkt., Inc., 113 N.H. 165, 168, 304 A.2d 873, 875 (1973) (statutes regulating form of ballots generally are regarded as directory rather than mandatory). As the plaintiff points out, the use of "shall" indicates the legislature's intent that the statute be mandatory. See Wilkes v. Jackson, 101 N.H. 420, 423, 145 A.2d 169, 170 (1958); cf. In re Thomas M., 141 N.H. 55, 59, 676 A.2d 113, 116-17 (1996). Furthermore, by providing a specific remedy for the violation of RSA 659:65, II(b) -- that the sticker vote "shall be regarded as defective" and "shall not be tabulated" -- the legislature stated in the clearest possible terms its intent to ensure compliance with the statute's prohibition. See Wilkes, 101 N.H. at 423, 145 A.2d at 170; cf. 26 Am. Jur. 2d Elections