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Fredette v. Secretary of State
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Decision:  		1997 ME 105
Docket:  			Pen-96-713
Submitted on briefs:	April 18, 1997
Decided: 			May 20. 1997



	[¶1]  Kenneth W. Fredette appeals from the judgment entered in the
Superior Court (Penobscot County, Marsano, J.) granting a summary
judgment in favor of the Secretary of State on Fredette's complaint.  On
appeal, Fredette contends that Maine's recount statute, 21-A M.R.S.A. §
737-A (Supp. 1996), violated his right to due process guaranteed by the
United States and Maine Constitutions.  We find no constitutional infirmity
and affirm the judgment.
	[¶2]  Fredette was a candidate for the nomination of the Republican
Party for the House of Representatives in Legislative District 125 at the
primary election held in June of 1996.  As the officially tabulated vote of that
primary election reveals, Fredette finished second in the balloting with
46.7% of the votes.  The winner received 53% of the votes.  Fredette
subsequently requested a recount of the ballots from the Secretary of State
pursuant to 21-A M.R.S.A. § 737-A.{1}  Pursuant to section 737-A(1)(C), the
Secretary of State's office advised Fredette that he would have to post a
deposit of $1,000.  Fredette refused to post the deposit and instead filed a
complaint in the Superior Court on July 12, 1996.  In his complaint,
Fredette demanded

equitable relief against the Defendants to wit, said statute be
found unconstitutional and/or overbroad as a violation of
Plaintiff's rights under the United States Constitution and/or the
Maine Constitution; and to furthermore, direct the Defendants
to provide said specific performance to wit, conducting a
recount of the House Republican primary in District 125.  

	[¶3]  Fredette filed a motion for a summary judgment.  After a hearing,
the court entered an order finding the statute to be constitutional and
directed the entry of a summary judgment in favor of the Secretary of State
pursuant to M.R. Civ. P. 56(c).  This appeal followed.
	[¶4] The election in which Fredette sought to participate has long
passed, and we must consider whether Fredette's appeal is now moot.  A
long-standing requirement for our review is that the case presents a
justiciable controversy.  If the issues between the parties have become moot,
the appeal in nonjusticiable.  Campaign for Sensible Transportation v. Maine
Turnpike Auth., 658 A.2d 213, 215 (Me. 1995).  The United States Supreme
Court has recognized an exception to mootness for matters that are "capable
of repetition, yet evading review." Southern Pacific Terminal Co. v.
Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911).  This exception
has been applied in election disputes that remain in court after the disputed
election.  See Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Dunn v.
Blumstein, 405 U.S. 333, 333 n.2 (1972); Moore v. Ogilvie, 394 U.S. 814,
816 (1969).  Because the issue raised by Fredette is capable of repetition
and will evade review if we do not address the merits of his appeal, we
decline to dismiss the appeal as moot.  See Campaign for Sensible
Transportation v. Maine Turnpike Auth., 658 A.2d at 215 (questions that
have become moot should be avoided unless they occur in a context where
there is a reasonable likelihood that the same issues will imminently and
repeatedly recur in future similar contexts with serious impacts upon
important generalized public interest).
	[¶5]  Fredette contends that the court erred in its conclusion that the
recount statute was constitutional.  He argues that the statute, as applied,
violates the due process clauses of the United States and Maine
Constitutions.{2}  When, as here, there exists no genuine issues of material
fact, we review the grant of a motion for summary judgment to determine
whether the trial court erred by concluding that the State was entitled to a
judgment as a matter of law.  Vacuum Systems, Inc. v. Washburn, 651 A.2d
377, 379 (Me. 1994).
	[¶6]  In reviewing a due process challenge to a statute, we have
articulated the test as follows:

1.	The object of the exercise must be to provide for the
	public welfare.

2.	The legislative means employed must be appropriate to the 
	achievement of the ends sought.

3. 	The manner of exercising the power must not be unduly
	arbitrary and capricious.

State v. Rush, 324 A.2d 748, 753 (Me. 1974).  We examine the challenged
statute under this due process standard, bearing in mind that a statute is
presumed constitutional and will be invalidated "only if there is a clear
showing by 'strong and convincing reasons' that it conflicts with the
Constitution."  State v. McGillicuddy, 646 A.2d 354, 355 (Me. 1994)
(quoting Opinion of the Justices, 623 A.2d 1258, 1262 (Me. 1993)).  The
party challenging the statute bears the burden of overcoming the
presumption of constitutionality.  Id.
	[¶7]  The recount statute requires a candidate who has lost an election
by more than four percent and desires a recount to deposit $1,000 with the
Secretary of State.  21-A M.R.S.A. § 737-A (Supp. 1996).{3}  Section 737-A,
including the deposit requirement, was enacted in 1993 as part of a bill
implementing the recommendations of the Special Commission to Review
the Electoral Process.  The Commission was convened by the Secretary of
State in the wake of a ballot tampering incident that occurred in 1992.  L.D.
1477, Statement of Fact (116th Legis. 1993); Special Commission to Review
the Electoral Process, Report to the Secretary of State at 1 (Mar. 23, 1993). 
Prior to the enactment of section 737-A, candidates were entitled to inspect
the ballots before requesting a recount.  See 21-A M.R.S.A. § 736 (1993),
repealed by Laws P.L. 1993, ch. 473, § 30 (effective January 1, 1994).  The
Commission recommended that this procedure be eliminated in order to
"expedite the recount process and eliminate another occasion in which
ballots are physically handled by the candidates and/or their assistants." 
The Commission's other recommended alternatives, enacted as part of
section 737-A, were: that a losing candidate who desires a recount must file
a written request with the Secretary of State within seven business days
after the election; that upon that request, the State Police be charged with
transporting the ballots to Augusta where the Secretary of State would
conduct a recount; and, that a fee would be charged for a recount based on
the percentage difference between the winning and losing candidates, a
provision designed to discourage frivolous recounts.
	[¶8]  Applying the due process test to Section 737-A, we conclude
that the statute passes constitutional scrutiny.  Eliminating the ballot
inspection procedure increases the degree of ballot security following an
election by reducing the number of people handling the ballots.  Imposing a
deposit requirement on candidates for recounts pursuant to a sliding scale
discourages recounts that are frivolous and have little chance of success. 
These are legitimate legislative objectives related to the public welfare and
are appropriate to the achievement of the ends sought.{4}  Additionally, the
manner of exercising the power is not unduly arbitrary or capricious.  
Accordingly, Fredette's constitutional challenge is without merit.
	The entry is:
					Judgment affirmed.

For plaintiff: Kenneth W. Fredette, Esq. P O Box 70 Newport, ME 04953-0070 Attorneys for defendant: Andrew Ketterer, Attorney General H. Cabanne Howard, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} 21-A M.R.S.A. § 737-A (Supp. 1996) provides in part: A losing candidate in any election who desires a recount must file with the Secretary of State a written request for a recount within 7 business days after the election. The recount is held under the supervision of the Secretary of State, who shall allow the candidate's representatives or counsel to recount the ballots. . . . . 1. Deposit for recount. All deposits required by this section must be made with the Secretary of State when a recount is requested. Once the State Police have taken custody of the ballots and other election materials from the municipalities, the deposit made by the candidate requesting the recount is forfeited to the State if the resulting count fails to change the outcome of the election. If the recount reverses the election, the deposit may be returned to the candidate requesting the recount. The amount of the deposit is calculated as follows. . . . . C. If the percentage difference shown by the official tabulation between the leading candidate and the 2nd-place candidate is 4% or more of the total votes cast for that office, the deposit is $1,000. {2} Me. Const. art. I, § 6-A provides: No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person's civil rights or be discriminated against in the exercise thereof. U.S. Const. amend. XIV, § 1 provides: [N]or shall any State deprive any person of life, liberty, or property, without due process of law. {3} Pursuant to 21-A M.R.S.A. § 737-A(1), the deposit is refunded to a candidate who is determined on recount to be the winner. {4} The Report of the Commission emphasized the effect of the "ballot tampering scandal" and the need for change. The Report noted, The recent "ballot tampering scandal" has undermined the public's confidence in the electoral process of the State of Maine and, necessarily, public confidence in the very process of government itself. . . . . . . . The Commission believes that it is critical that security surrounding recount ballots be improved, but that these changes alone, while necessary . . . are not sufficient to restore voter confidence in the integrity and honesty of Maine's election processes. More is needed. . . . . What is at stake is beginning the process of resurrection and rebuilding the public's faith and confidence in the electoral processes of Maine and Maine government itself.