SUPPLEMENTAL RULING OF THE SECRETARY OF STATE PURSUANT TO
‘SUPERIOR COURT ORDER TO CONSIDER ADDITIONAL EVIDENCE:
ON THE CHALLENGE BROUGHT BY DAVID BOYER OF PORTLAND AGAINST
THE PRIMARY PETITIONS FILED ON BEHALF OF MAX PATRICK LINN, A
REPUBLICAN PARTY CANDIDATE FOR UNITED STATES SENATE.
1. Procedural History
‘A. Candidate Max Linn filed a nominating petition and consent form on March 15.
2018, which was found to contain a total of 2,248 valid signatures, based on the certifications by
municipal registrars and review by the Elections Division staff,
B. On March 22, 2018, David Boyer of Portland filed a written challenge to the
candidate’s petition, pursuant to 21-A MRSA. § 3372)(A).
C. The Secretary of State held a hearing on that challenge on March 29, 2018, and
issued a decision on April 5, 2018, finding sufficient grounds to invalidate 230 signatures on the
candidate’s petition. This left the candidate with 18 more signatures than the minimum required
to qualify for the primary election ballot pursuant to Title 21-A, section 335, subsection 5,
paragraph B.
D. The challenger appealed to Superior Court within the time period specified in
statute, 21-A M.R.S.A. § 337(2)(D), pursuant to Rule 80C of the Maine Rules of Civil
Procedure. Boyer v, Dep't of Secretary of State, Docket No. AUGSC-AP-18-20. On April 19,
2018, pursuant to M.R. Civ. P, Rule 80C(e) and the Maine Administrative Procedure Act, 5
M.R.S.A. § 11006(1)(B), the challenger filed a motion to take additional evidence that had not
been discovered prior to the March 29th hearing. ‘The Superior Court granted the motion and
issued an Order on April 20, 2018, directing the Secretary of State to take additional evidence
and:
‘After taking such additional evidence, the (Department of Secretary of
State] may modify its findings and decisions and shall file with the court,
to become part of the record in this matter, the additional evidence and any
new findings or decision,
E. ‘On April 24, 2018, a hearing was held, in accordance with the Court's order. The
hearing was conducted pursuant to the Maine Administrative Procedure Act, Title 5 M.R.S.A. §§
8001 et seq, and Title 21-A M.RS.A. § 337, sub-§2. The challenger was represented by
‘Attorneys Joshua Tardy and Colton Gross, and the candidate was represented by Attomey Steven
Juskewiteh.
id Prior to the hearing, the challenger had provided the candidate with the evidence
that the challenger intended to present at the hearing, which facilitated a number of stipulations
as described below.iE
ence Presented at the April 24, 2018 Hearing
A. The challenger presented the testimony of David Boyer, who described the
process he and others in the Brakey for Senate campaign had used to check the party enrollment
status of voters whose signatures were on the petitions. The challenger also presented numerous
documents, as described below:
B. The candidate presented his own testimony plus that of cireulator Susan L.
MacKay. He also submitied several affidavits of voters whose names appeared on the petition
previously marked and introduced into the record as Exhibit 25. The affidavits are grouped
together as Exhibit 40. The challenger objected to the admissibility of certain affidavits included
in Exhibit 40 that do not list a telephone number where the voter could be reached for cross
examination. The entire exhibit was admitted over the challenger’s objection.
C. Original petitions were marked as Exhibits 32, 33, 34, 35, 36, 41 and 42, Other
exhibits admitted into the record inelude:
+ an obituary of Robert H, Graves of Ellsworth, published in the Ellsworth
American on December 12, 2012 (Exhibit 37)
+ data generated by the Central Voter Registration System showing the enrollment
status of 26 voters who had signed the candidate’s petition (Exhibit 38)
+ copies of voter registration cards showing the enrollment status of an additional
15 voters who had signed the candidate's petition (Exhibit 39)
A complete list of the exhibits introduced and admitted into evidence at the hearing is attached
hereto.
IIL Legal Requirements
The legal requirements for a candidate petition are set forth in the previous Secretary of
State ruling of April 5, 2018, and are incorporated herein by reference.
1V, Findings of Fact
A. This decision incorporates by reference all findings and conclusions set forth in
the previous Secretary of State ruling of April 5, 2018, except as they are specifically modified
here in response to new evidence
B. Duplicate signatures. The challenger presented evidence that three voters in
Ellsworth — James Heard, Betty Lou Woodard, and George Schatz ~ had each signed two
different petition forms for the candidate, as shown on Exhibits 32, 33, 34 and 35. The candidate
conceded that these were duplicate signatures that could be counted only once. It is undisputed.
therefore, that three (3) signatures must be subtracted from the total number of valid signatures
on the candidate’s petition.
C. _ Unenrolled voters, The challenger presented evidence in Exhibits 38 and 39,
which the candidate did not dispute, indicating that a total of 41 voters who signed the
2candidate’s petition and whose signatures were counted as valid by municipal registrars, were
not in fact enrolled in the Republican Party at the time they signed the petition. Pursuant to 21-A
MAR.S.A. § 335(2), only those voters who are enrolled in the party named in the petition may
sign, and “other signatures are void.” Accordingly, it is undisputed that these 41 signatures must
be subtracted from the total number of valid signatures on the candidate's petition.
D. Deceased voter. The challenger presented undisputed evidence that one voter
(Robert H. Graves), whose name appears on line 7 of the petition form marked as Exhibit 36,
circulated by Duane Schumacher in Trenton, was deceased as of December 21, 2012. See
Exhibit 37 (obituary). This petition form contains a total of 13 voter names, of which 7
(including Mr. Graves) were marked SANO” by the municipal registrar, indicating that someone
other than the voter had signed. I find that this constitutes sufficient evidence of fraud to
invalidate this entire petition containing three (3) signatures that were originally counted as
valid?
E. Petitions circulated by Susan MacKay. Both the candidate and Susan MacKay
testified concerning one of the petitions that she circulated in Ellsworth, which is in the record as
Exhibit 25.
In response to the Secretary of State’s inital ruling on April 5, 2018, the candidate took a
copy of this petition and went to the houses of several of the voters whose names appeared on the
petition, In each instance, he met the voter, asked if the voter remembered signing the petition
and asked the voter to confirm that it was indeed their signature on the petition. He spoke with a
total of 15 voters who verified their signatures and none who did not. All but one of those voters
signed an affidavit confirming this. The one who did not was feeling ill with an infeeted tooth
and did not wish to sign but orally confirmed to the candidate that it was her signature. See
Exhibit 40.
Susan MacKay described the circumstances under which she circulated this particular
petition (Exhibit 25), She recalled the day clearly and said that she had gone out to collect
signatures with her friend, Kristi Alexander. She remembered the specifies of going to houses
on Christian Ridge Road in Ellsworth, She asked each voter if they were registered in the
Republican Party before asking them to sign the petition, At the end of that day (March 11,
2018), she recalled taking the completed petition to the office at 9 Edgewood Street, where she
" While not disputing the validity of evidence regarding the enrollment status of these voters, the
candidate argued that all of the evidence was available to the challenger before and that the challenger
should not be permitted to add it now. ‘The statute sets a very short time limit within whieh any voter in
the candidate's electoral district may challenge a candidate's petition. In granting the challenger's motion
to take additional evidence, the Superior Court found that, while theoretically possible, those accelerated
time frames made it practically unrealistic to produce all of the relevant evidence before. Accordingly,
the Court found that the challenger was entitled to introduce additional evidence. Moreover, as the Court
noted, the objective of this process is to make an accurate determination of the validity of the candidate's
petition, and to ensure the reliability of the nomination petition process. To that end, | am accepting and
considering this evidence.
2 The remaining three signatures on the petition were rejected by the registrar as unregistered voters.
3100k the circulator’s oath before notary public Dianne Lovejoy. She remembered that there were
23 signatures on the petition when she took her oath because she had been in a friendly
competition with another circulator to see who could collect the most signatures and had won
with that number. The next time she saw the petition was on March 29, 2018, during the first
hearing on this challenge, when she saw that five additional names had been added below line 23
on the front page of the petition. These five signatures were rejected because they lacked a date
on which the voter had signed. Handwriting expert Tiffany Ford testified on March 29. 2018,
that these same five signatures appeared to have been written by someone other than the voter.
Neither Ms. MacKay nor Mr. Linn could explain how these additional signatures could have
been added to the petition after Ms. MacKay took her oath and left the petition with the notary
1 find Susan MacKay’ testimony to be eredible and find that when she took her oath as
circulator of the petition marked as Exhibit 25, she believed that oath to be true and accurate with
respect to the signatures on lines 1-23 which were the only signatures on the petition when she
took her oath, in accordance with 21-A M.RS.A. § 335(7)(A). Of these, 19 were found valid by
the municipal registrar. I find that the signatures on lines 24-28 of Exhibit 25 were added
fraudulently by someone other than Ms. MacKay. Because my initial ruling of April 5, 2018,
rejected this petition in its entirety, my findings on this new evidence warrant restoring the
validity of 19 signatures
Susan MacKay also testified concerning four other petitions that she circulated in
Blisworth: Exhibits 12, 35, 41 and 42, She had a clear memory of circulating each one. She
recalled that she initially took the circulator’s oath on Exhibits 32 and 35 in front of a notary at
TTD. Bank, but the notary did not write down the date. Accordingly, Ms. MacKay took the
circulator’ oath again before notary public Stavros Mendros in the Cross Office Building on
March 15, 2018 — just before the candidate filed his petition with the Secretary of State's Office.
On Exhibit 12, she recalled collecting the signatures on lines 1-7, but did not collect and
did not recognize the undated signatures on lines 8-12, including the names of Phillip Foster and
Bonnie Hersey discussed in the April 5 ruling. 1 found her testimony with regard to this petition
credible and conclude that the signatures on lines 2-7 should remain valid. (The signature on
Tine | was rejected by the municipal registrar as not registered.) Ms. MacKay’s testimony with
respect to the petitions marked as Exhibits 35, 41 and 42 was credible as well. She noted that
several names on those petitions are those of her family, friends and work colleagues,
F. Issue of fraud.
When asked who had retained custody of the candidate petition forms after they were
tumed in by circulators, and who had custody of them from that point until the petitions were
filed with the Secretary of State, the candidate testified that he did not know. He indicated that it
was a somewhat chaotic process in which many people were involved. The only individuals he
could identify who were involved in organizing were Stavros Mendros and campaign worker
Matthew McDonald, Mr. McDonald testified later in the hearing, confirming that the process
was somewhat chaotic particularly as the filing deadline approached, but he did not shed any
light on the chain of custody of the petitionThe candidate acknowledges that some of his petition forms were tampered with, and that
fraud occurred, but he vehemently denies having any knowledge of who committed it or when or
how it happened. He argues that, as a matter of law, the challenger bears the burden of proving
that fraud was committed by the circulator in order to invalidate entire petitions and that, absent
such proof, only individual signatures on those petitions may be rejected pursuant to 21-A
M.R.S.A. § 335(7)(A) and (9).
‘The challenger argues that the evidence of fraud in this petition drive ~ regardless of who
perpetrated it — is sufficient to invalidate the candidate's entire nomination petition, not just
individual petition forms, such as Exhibit 36 and the other petition forms that were invalidated in
my ruling of April 5, 2018.
“The petition forms that | am invalidating in their entirety are those petitions for which the
challenger has presented sufficient proof of fraud to undermine the validity of the circulator's
oath and the validity of the entire petition, in accordance with section 335(9). I find, however,
that the challenger has not met his burden of providing sufficient evidence to support
invalidating other petitions circulated by the same individuals that were not discussed or entered
into evidence at either hearing,
V. Conclusion
Based on review of all of the evidence presented at the two hearings on March 29 and
April 24, 2018, and consideration of the legal arguments of the candidate and challenger, 1
conclude that the challenger has presented sufficient evidence to invalidate the signatures of 258
voters initially counted as valid, When subtracted from the original total of 2,248 valid
signatures, this leaves the candidate with a total of 1,990 valid signatures, which is 10 fewer than
the minimum required to qualify for the primary election ballot pursuant to Title 21-A, section
335, subsection 5, paragraph B. Accordingly, I conclude that the challenger has met his burden
of providing sufficient evidence, pursuant to Title 21-A, section 337, subsection 2, paragraph B,
to invalidate the nomination petition of Max Patrick Linn,
Dated: April 24, 2018
fatthew Dunlap, Secretary of StateIne: Challenge to Nomination Petitions of Max Patrick Linn
Administrative Hearing to consider new evidence, April 24, 2018
LIST OF EXHIBITS -- ADMITTED INTO EVIDENCE
LIST OF EXHIBITS -- ADMITTED INTO EVIDENCE
Document Date Description
32 3/15/18 Petition circulated by Susan MacKay in Ellsworth, showing name
of Rev. James Heard on line 2
33 3/5/18 Petition circulated by Duane Schumacher in Ellsworth, showing
name of James Heard on line 21
34 3/5/18 Petition circulated by Antonio Johnson in Ellsworth, showing
names of Bonnie Lou Woodard on line 1 and George Schatz on
Sine 6
35 3/15/18 Petition circulated by Susan MacKay in Ellsworth, showing name
of George Schatz on line 11
36 3/5/18 Petition circulated by Duane Schumacher in Trenton, showing
name of Robert H. Graves on line 7
37 1221/12 Obituary for Robert H. Graves, Ellsworth American
38 various Data from Central Voter Registration System for the following
voters who signed Linn’s petitions:
Kathy M. Dubord, Dresden.
Debra J. Legassie, Carmel
Stephen W. Dunham, Carmel
David Ellis, Newburgh
Jeffrey M, Brown, Newburgh
Amy L, Thibeault, Milford
Christian A. Roberts, Milford
Nadine M. Mishou, Milford
Bobbi Jo Alley, Jonesport
Keven L. Byron, Kenduskeag
Andrea K. Young, Howland
Ronald W. Spencer, Sr., Howland
Ronald W. Spencer, Jr., Howland
Mark S. Plourde, Hermon.
‘Sumner Jean Moses, Hermon
Mindy Linette Berryhill, Gasland
Stephen Proto, Etna,
‘Tammy Thayer, BradleyChristopher A. Belyeu, Albion
Tony Casey, Smyma
Maria F. Martin, Stacyville
Nikki Ann Brownlee, Patten
William J. Hotham, Patten
Shawn Wendell Craig, Patten
Tammy L. Craig, Patten
Edward Dahl, Gardiner
Curt Ordway, Penobscot
various Copies of Voter Registration Cards for the following voters who
signed Linn’s petitions:
Elaine J. Sawyer, Greenbush
Lucille Tabbutt, Amherst
John T. Ellis, Corinth
Kelly Reidy, Carmel
Nancy Putnam, Monson
Barry K. Prescott, Newburgh
Richard A. Catruch, Hermon
Christopher Miller, Hermon
Wesley Ryan McNaughton, Randolph
Ben Butler, Carmel
David Porter, Stetson
Cathy Jordan, Eddington
Martha Kataftos, Trenton
Donald MacKenzie, Eddington
Gail MacKenzie, Eddington
42118 Affidavits of the following voters whose names appear on the
Petition marked as Exhibit 25:
Florence Berry, line |
Karen Baron, line 5
Betty Lou Woodard, line 6
Gary Saunders, line 7
Karen Saunders, line 8
‘Anthony J. Magee, line 10
Heather Magee, line 11
Gabriella M. Magee, line 12
Melanie S. Brown, line 14
Mitchell Farron, line 15
Marie Gardner, line 17
Charles Kelley, Jr, line 20
Diane Delaite, line 21 (affidavit is unsigned)
Kelley Tupper, line 22
Ches Dow, line 234
BIWI8
3/18
Petition circulated by Susan MacKay in Ellsworth,
Petition circulated by Susan MacKay in Ellsworth