2023-01-13 00:00:00 - Special Committee of the House to Examine the Returns of Votes for Certain Representative Districts

2023-01-13 00:00:00 - Special Committee of the House to Examine the Returns of Votes for Certain Representative Districts

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REP DAY - The house convened on January 4th, 2023 in accordance with the constitution of the commonwealth. We received a communication from the secretary of82 the commonwealth regarding the returns of the84 November 8th,86 202286 elections86 for representatives in general - court. The order was90 unanimously adopted by the House to form a special committee of the House to examine the returns. This is the House's custom and is consistent with the provisions of Article 10 of our state constitution. Speaker and members appointed representative Ryan Jones and myself to107 serve in that committee, which is why we're here today. Each member of this110 committee then signed an111 order, which was unanimously adopted by the House.

At that swearing116 in, we found that 158 of our colleagues118 were duly elected and ought to be sworn in by the governor. In two122 cases, the second Essex in the first Middlesex, we determined that further review was appropriate. In the second Essex, according to130 Article 64, as amended by Amendment132 82 to the133 Constitution of the Commonwealth.134 Representative135 Mira serves in a holdover capacity137 from last session until139 the House determines how to move forward. The first middle sex142 seat remains vacant currently. We're here to hold a146 a hearing on the second Essex District148 challenge this morning.
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DAY - Prior to this publicly notice hearing, the the special committee requested doc any documentation from202 counsel or the candidates203 they wish to204 offer to205 us in support of their claims. We received207 a joint records appendix on behalf of both representative Mira and211 Ms.
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DAY - Seconded by Mr. Jones. All those in favor say222 aye.222 none222 opposed.222 That222 joint222 records appendix will also be entered into the formal record and additionally, to that joint227 appendix, the committee received the following documents from230 attorney Sullivan on behalf of representative Mira, a233 supplemental affidavit of Leonard Mira, an affidavit of Cynthia237 Rulis with an238 exhibit attached A, entitled Rowley recount minutes. An affidavit of Sandra Capo, an affidavit of246 Charles Tequesion, an affidavit of David Oates, and an affidavit of Glenn Kemper. Of a motion to move those into the record?
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DAY - All right.257 Those those will258 be moved in as well. And259 then finally, The committee261 also received the following262 documents from attorney263 McDonough on behalf264 of his client, Ms. Kassner’s memorandum dated January 12, briefing268 the committee on Ms. Kassner’s case, along with attached271 exhibits a through272 f inclusive of a motion to move274 that into the
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DAY - Alright. Second, those will be278 moved into the record as279 well. I believe that is the entirety of281 the materials submitted282 to the special committee283 documentation wise. And so we will move288 all those into the official289 record.
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MICHAEL SULLIVAN - ATTORNEY FOR LENNY MIRRA - Thank you. First, I334 want I wanna recognize the speaker and also representatives.336 For creating the special338 committee. It's consistent339 with your constitutional340 obligations in a of authority. Fair and free345 elections are the346 bedrock of our society.347 We're348 grateful that this committee349 has350 been assembled to351 safeguard the vote352 is freedom of353 choice and the candidates right to seek public office. Rights that are357 fundamentally intertwined and shall not be infringed.360 As a record clearly established, representative Lenny364 Mirra was initially determined to366 be the winner of the election by368 a margin of 10369 votes.

His opponent, Ms. Kassner’s372 petition372 for a district wide373 recount, and according to375 the reported recount376 results, Ms. Kassner gained a net total379 of 11 votes. Emerging as the purported383 post count, recount winner by the slimmest of all margins, 1 vote. The389 only closer390 election you could391 have would be a tie.392 The393 committee in the House should394 be most interested in understanding both the397 facts and the and398 the evidence uncovered399 during the recount.400 And401 several examples402 of that, which403 apply to the record,404 is the fact405 that there were 14 extra ballots discovered at409 the Ipswich recount that weren't identified during the414 initial election. There was no explanation provided418 for the substantial increase on the 14 extra ballots.

They're also in Raleigh was the unspoiling of429 5 ballots and the counting431 of all 5 of those unspoiled433 ballots from434 Ms. Kassner. Spoiled ballots or typically not unspoiled.439 A ballot gets spoiled for a number of reasons,443 including a444 a voter445 determining that446 they had made a mistake.447 And448 wish to have another449 ballot and450 the initial ballot is451 marked spoiled. The saying could453 be true with regards to454 a mail in ballot where a vote456 a voter subsequently457 decides that they want to vote459 either in person or to correct461 a a mail in463 earlier mail in464 ballot. Also,466 an Ipswich registerized incorrectly or return470 two ballots that were called for Representative473 Lenny473 Mirra.473

473 During the475 recount despite compelling evidence that the votes478 should remain counted for Mr. Mirra. Also, it indicated on the record is485 the second, it486 Essex District487 Town clerk’s failed to489 reject mail in balance with491 signatures on492 the mail in envelopes493 that did not494 match the corresponding voter registration cards or the signature499 requesting the mail501 in ballots. This is an503 important nondiscretionary504 step required by507 mass general508 laws created509 by this body because511 it's a significant safeguard against fraud.514 In515 one of the cases on point517 is the Carly518 versus the Secretary519 of the Commonwealth case,520 which I think521 both parties have522 referenced in their523 submissions.524

At the recount,526 counsel for Mr. Mirra made formal objections528 to the529 above issues530 along with a number of531 others that we're prepared533 to discuss. Importantly, all of the challenge536 ballots were537 preserved for litigation538 and539 should be available for540 this special committee541 to review. On December543 21st, Mr. Mirra filed a lawsuit546 against several second548 second Essex549 district registrarizing clerks as well as the secretary552 of the Commonwealth challenged553 the election. Shortly555 thereafter, requested557 on an emergency558 basis It’s a superior court560 review review561 just 2563 of the Ipswich564 ballots that565 would materially566 change the567 post recount result568 of the election.569

570 And570 even if all571 of the other challenge572 ballots remain the574 same, So575 it was not576 burdensome at all577 in578 terms of reviewing579 those two ballots.580 At581 least according582 to583 the witnesses, a declaration.585 Both586 of those ballots clearly587 indicate a588 vote for Mr.590 Mirra.590 So590 I think the reference591 is based592 documents number593 35 and594 37 in the submission.596 And598 there was 1599 that had600 a write601 in of602 Donald Trump,603 originally in605 in the606 bullet bubble filled608 out for Mr. Mirra and it was originally611 called for Mr. Mirra and then614 overturned by the registries and the the case on point617 there, I think, is the618 O'Brien case,619 which we cite620 as well. On621 December 29,622 in the face623 of no law,624 divesting the625 Superior Court626 of jurisdiction at this627 juncture.

629 Plus629 the629 representation by630 the secretary631 and632 the admission by the municipal633 defendants634 that the court still had636 proper jurisdiction. The judge,638 we believe,639 wrongly640 dismissed the complaint,641 and denied the limited643 relief requested644 and though had all646 the ballots in its possession returned649 the ballots650 without examining651 them. The court653 claimed it had no654 jurisdiction to hear them out.656 The finding657 or the lack of jurisdiction658 by the court659 was opposed660 by Mr. Mirra the towns665 and the Secretary666 of the Commonwealth. Mr.668 Mirra’s complaint thoroughly669 describes the670 reasons Mr. Mirra sought His rights for674 judicial relief675 informs the basis676 for the677 issue squarely678 before this committee.679

680 Furthermore,680 to provide Additional evidence682 for this committee,683 we have submitted684 as the chair has685 noted several declarations686 that describe the688 process and689 certain subjective determinations that691 were made during the recount.692 Keeping693 in mind, being694 correct on695 just 1696 challenge ballot697 makes the difference698 between699 a loss and the701 seat being702 unfilled. Being correct704 on just two ballots,705 would change the707 results of708 the election. Mr. Mirra710 has710 only asked for711 one thing since712 the recount,713 examine the714 ballots, examine715 the flaws and716 make a fully determined717 and objective718 decision on719 what was the will720 of the people721 of the second essence.722 Essex District.723 In conclusion,724 members of725 the community, the margin726 of error in727 this recount exceeds729 the incredibly730 narrow margin731 of victory.732

And is the court in Conley versus734 secretary of the Commonwealth735 stated if the737 margin of conjecture738 exceeds the margin740 of victory, It must be a742 new election. We743 respectfully asked this committee to745 exercise all of its746 authorities to747 conduct an examination748 of the749 handful of750 challenge balance751 investigate752 fully those753 instances in which754 election officials755 lack discretion756 that those failures758 have resulted759 in conjecture760 of the vote761 count. And762 after such review763 determined that representative764 recommended or766 determined that representative767 Mirra won768 the election or the in alternative find that the election was771 a tie, the772 seat is vacant773 and recommend a new election to the775 full house. Thank you, Mr.
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LENNY MIRRA - COMPLAINANT - No. I will only819 add assuming that820 I'm I'm just821 thankful that we have822 this opportunity to deal823 and we try to824 make our statement825 heard in court. All we826 wanted was a hearing.827 All we wanted was a828 chance All829 we want was to have someone830 look at those contested831 ballots, make832 a reasonable833 determination, and834 believe it or not,835 we could not get our doing836 poor. The judges837 would not hear because838 they determined it was839 active jurisdiction.

I'm not sure if841 that's true or not, but842 regardless of whether that's843 true or not, I'm just844 very thankful that the speaker845 allowed us to846 happen. That you're hearing847 this, and and I employed848 to to849 look at the evidence, read850 it carefully, and851 and please please852 do look at those contested853 valves I think855 it'll reveal a lot.856 And regardless of what you858 decide, you know, we'll accept859 the the termination860 of this committee. And you can move862 on.
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DAY - Thank representative Mirra as well. So we've got some885 questions on886 the submissions887 as well as888 the presentation here889 today. Just890 starting with892 the jurisdiction issue in the894 jurisdiction of this895 special committee.896 What897 is your position on898 on the significance of899 the certificate of summons900 sent901 to All representatives902 elect903 by the governor and904 the secretary of commonwealth?905

905 SULLIVAN905 -905 Prior907 to the first, Wednesday in909 January when the910 house was called911 in the session?

912 DAY912 -912 Yep.912

913 SULLIVAN913 -913 We913 believe914 with this we take the same position916 as the secretary of the917 Commonwealth that the the919 courts retained jurisdiction920 under921 state law922 up923 until the time924 up925 until the time when926 the the house is927 called in928 the session. And even930 once the house is931 in session, I think is the secretary933 of the Commonwealth indicated it's unclear936 as to whether938 or not the courts continue939 to have jurisdiction.940 I think941 it's clear that942 the remedies that943 are available to the944 court after the945 houses take a jurisdiction946 and created this947 committee might948 be a lot949 different than950 what the951 remedies would952 be available to the court953 prior to that happen.954 So we understand and respect957 that this body of the959 house and this960 committee in961 particular as the right962 to do what it's doing963 under the constitution.964

DAY - So under under the constitution,966 I guess a follow-up,967 and this has been968 decided, I think, fairly970 consistently by971 majority973 of974 the house in the past.975 Once that certificate976 issues,977 doesn't it978 become the jurisdiction979 of the house to decide980 the qualifications of its981 members, given982 that you've had a governor and983 secretary of registrars,984 confirm985 or affirm986 to the body987 that988 this is who989 we deem990 to be the duly991 elected does not then993 become the constitutional994 prorogate of this995 special committee996 or certainly of the house997 to determine998 what that999 that that actual result1000 is.

1001 SULLIVAN1001 -1001 Right,1001 I1001 think that's accurate in1002 terms of the cases1003 I've read to today,1004 to the1005 jurisdiction rest1006 here. Having1007 said that, I don't wanna1008 wave any1010 rights that1011 my client may1012 have within1013 the courts.1014 I respect the1015 fact that1016 the remedies that are1017 available to the court1018 at this point in1019 time far1020 more limited than the remedies1021 they had1022 prior to1023 the house taking jurisdiction1024 over it.1025 And1026 the reason why I don't wanna1027 waive1028 it is because I think that the court1029 in this particular1030 case has1031 raised a serious1032 constitutional1033 question.

As to when1035 the rights of the1036 courts1037 the the court1040 no longer has any1041 rights to hear1042 a matter.1043 The court dismissed1044 it based on1045 subject matter1046 jurisdiction. think the court dismissed1048 it1049 at least prematurely1051 in terms1052 of subject matter jurisdiction.1053 So1054 whether or not it becomes important1056 for1057 us to continue to1058 advance1059 that point in1060 time because I'm not1061 convinced this will1062 not be the last1063 time1064 when there might1065 be1066 a difference1067 as to when the1068 courts1069 have exclusive1070 jurisdiction1071 to take certain1073 steps.

And I think that would be an important1075 question for the1076 courts to address.1077 Or the legislature.1078 The legislature can1079 make it clear1080 when it wants1081 to divest the1082 courts of1083 its of the jurisdiction1084 under the the1085 statute in terms of1086 hearing contested1087 elections. So1088 I think1089 I'm in1090 agreement with you in terms1091 of what you1092 said Mr.1093 Chairman, but I1094 just wanna reserve1095 any rights that Mr. Mirra1097 has1097 regarding that issue1098 in terms of1099 jurisdiction.

DAY - Well, I I1100 guess that begs the question1101 then given what representative1102 Mira had just1103 said to us that1104 do you do you think1105 that this committee's1106 decision1107 is determinative1108 of of this1109 race? Or is there1110 an intention1111 to proceed1112 with judicial1113 remedies?

1114 SULLIVAN1114 -1114 I1114 I apologize. If I haven't been clear, don't think the1116 court has any ability1117 to overturn1118 the decision1119 that1120 this body1122 renders.1123 So that would1125 not be the kind of the1126 basis of continual1127 litigation1128 here1129 because I think there's1130 clear case1131 law it indicates1132 that the courts should1133 not have the authority1134 to do that.1135

DAY - Is there1136 a contention1137 that there1138 was any1139 fraud1140 in this election?1141

SULLIVAN - You know, obviously,1143 fraud no.1145 I think irregularities.1146 I think1147 that1148 there's clear evidence that1149 nondiscretionary1151 functions1153 were not compliant1155 with1156 I think the best example1157 of that1158 is the1159 importance1160 of matching1161 signatures1162 as1163 kind1164 of mail in1165 ballots continue to escalate.1167 There's1168 always1169 a risk of fraud, and1170 we're not suggesting1171 fraud,1172 but the legislature1173 has made it1174 clear that it's1176 mandatory.1177 It's not discretionary.1178 It's mandatory1179 that you1180 compare signatures1181 to ensure1182 that the1183 ballot that's being presented. The signature1184 on the outside of the1185 envelope matches1186 the signature in1187 the possession1188 of the1189 municipality.

Our point1193 is,1194 Mr.1197 Representative1198 Mirra1198 witnessed1198 the1199 opening of1201 about a hundred1202 mail in ballots1204 in Ipswich.1205 And it was very apparent1207 to1208 him It was1209 no comparison1210 of the1211 signatures and the envelopes1212 against1213 anything at1214 the1215 municipality. The only1216 verification1217 that1218 that seemed to be complied1219 with was1220 was there a signature1221 and1222 had the person1223 already1224 voted?1225 Those are the only 2 things1226 that appeared1227 to be tested.1228 The1229 legislature1230 is imposed1231 on the Clorox1232 to1233 compare the1234 signatures. That wasn't done.1236 That does provide1237 a risk. And in the1238 cases that we've identified,1239 the1240 courts1241 indicate what1242 is1243 nondiscretionary, this is1245 nondiscretionary.1246 And it's1247 nondiscretioning1248 for the purposes1249 of to avoid1251 and minimize1252 h fraud.

1253 And1253 we1253 don't know whether or not it was1254 fraud. But Mr.1255 Mirra, we testified1256 that there were1257 at least 121258 of the mail in1260 ballots. In1261 Ipswich,1262 where he was very apparent1263 to him when he finally1264 had the opportunity1265 to compare1266 the signatures1267 on the1268 envelope. With1269 a signature1270 at the municipality1271 that1272 they didn't match.1273 And1275 that those1276 ballots were1277 already1278 opened1279 and then1280 coming.1281 So there's no ability1282 for the1283 courts1284 or for this1285 body to1286 determine who they voted1287 for, and1288 it gets to the issue1289 of1290 conjecture. And when the margin of conjecture1292 exceeds1293 the margin1294 of victory,1295 the courts1296 have said that's1297 the time1298 in which to order1299 a new1300 election.

DAY - So1302 I I think1303 we need some1304 clarity here.1305 Hearing1306 from representative Mirra,1308 that1308 you're asking us to to determine1309 contested ballots, not1311 throwing1312 out ballots and1313 ordering new election. What1314 is which one is it? Or is1315 it1316 both?

SULLIVAN - I'm sorry. I'm sorry, Mr. Chairman.

DAY - It seemed to1318 me that you were just1319 stating that we1320 should order a new election1321 based on1322 these1323 alleged 121324 ballots, Which, which is1326 it? What's the remedy you're1327 asking?

1328 SULLIVAN1328 -1328 Well,1328 if if you look at1330 the Ipswich1331 balance, And you made the determination1333 that were1334 originally made in terms1335 of those ballots.1336 That those two1337 votes were for Mr. Mirra for representative Mirra, then it changes the outcome of1341 the raise from one1342 vote deficit1343 to a1344 one vote1345 margin of victory.1347 That says1348 to1349 me, that the1350 election should1351 be decided by1352 the House in favor1353 of Mr. Mirra when you1354 look at the contested1355 ballots.1356

If you look1357 at the contested1358 ballots, and1359 you look at1360 the other issues1361 that are being raised1362 and you make1363 a determination1364 that you can't1365 determine1366 the outcome of the election1367 because of conjecture,1368 then that's1369 where the courts say1370 you should order a new1371 election.1372 So I'm not suggesting1373 you should1374 look at the1375 balance and make an informed decision1377 consistent1378 to to the1379 will of the voters.1380 And I think1381 you determine1382 that1383 in those contested ballots,1384 they should have gone to1386 a Representative Mirra and had they,1390 Mr. Mirra would would have been declared effective.

REP RYAN - I just I have1394 a question on some1395 of these ballots that are in1396 question1397 in Representative. I'd wanna Thank you for1399 your service. That's part of1400 the commonwealth.1401 The1402 you're talking about1403 contested balance and1404 a number of contested1405 balance and inconsistencies,1406 but yet1407 there1408 was only two ballots that were brought1409 to court.1410 Right? Two1411 ballots1411 that are now being1412 questioned or you're1413 asking us to look1414 at two1415 ballots at least?

SULLIVAN I apologize.1418 All1419 the balance.1420 When we had the emergency1421 hearing before the1422 the court, the court instructed1423 all the town1425 clerk's to1426 present1427 all the contested1428 ballots1429 to the courts,1430 including1431 those1432 envelopes, we were1434 questioning the1435 the1436 signatures.1437 So all those were1438 ordered to1439 be delivered to the1440 court, not just the1441 two.1442 They were all delivered to the1443 court. The court1444 was struggling1445 with, do I have1446 enough time to get1447 all of this done?1448 And we1449 suggested if you1450 just look at the1451 Ipswich balance alone,1453 you're gonna see1454 that there's a serious1455 question1456 about the outcome1457 of the election.1458

That should give you1459 enough1460 the pause,1461 the1462 results, they have1463 a full hearing.1464 The1465 court never looked at those1466 ballots,1467 determined it1468 did not have subject1469 matter1470 jurisdiction. And then sent1471 all the balance back.1472 So all the balance1473 back with the1474 municipalities.1475 So we're not1476 asking if they'll look1477 only at the1478 Ipswich balance. We're1479 asking, look1480 at all the ballots. What I point1481 to the court was1482 if you're concerned about1483 expediency,1484 you can1485 quickly look at two ballots and make a determination1488 as to whether or not1489 it's a tie1490 or1491 representative Mirra won.

RYAN - So you were asking those1494 two balance to be an1495 example1496 of other things you may1498 have been looking for in1499 the other ballots? You1500 weren't saying if we1501 just use these1502 wo ballots, we can1503 turn this1504 election because that's1505 kind of what it looks like?

SULLIVAN - Well, we did say1506 that it looks like. Yeah. I mean,1507 we did say that if you1508 just looked at those two ballots,1509 the outcome of the election1510 would be different. If1511 those were the only two1512 contested1513 issues, by representative1514 Mirra. And if1515 looked at those two ballots1516 and1517 Mr. Mirra1518 is1518 right that1519 they were wrongly1520 called, or his opponent that it does1522 change the outcome of the election.1523

Okay. My point was1524 this.1525 We're asking for the court1526 to intervene1527 pretty1528 quickly And we said if you just look at those1530 two ballots,1531 you'd have confidence1532 that1533 intervening1534 and staying the1535 the1537 election or the swearing in1539 would make sense.1540 And the secretary1541 indicated1542 the court, you1543 know, the court1544 can1545 order the secretary1546 not to deliver1547 the results1548 to the house.1549 The court never get1550 that far because the1551 court and again, we1552 we think mistakenly1553 to1554 It does not1555 have jurisdiction.1556

1556 RYAN1556 -1556 And you have1557 further remedies in1558 the court. Yeah. You have.1559

1559 SULLIVAN1559 -1559 And and for the1560 remedies in the1561 the house, your1562 remedies you know, the1563 court leaders with the1564 house. And this committee1565 thankfully, the1566 house and1567 the speaker1568 on the house1569 form the special1570 committee.

RYAN - Thank you.

DAY - So yes, just picking1576 up on those tow council,1577 can1578 an over vote1579 happen?

1581 SULLIVAN1581 -1581 Sure,1581 absolutely.1582

DAY - Where multiple1583 marks are1584 made, and then it's a call1585 for the registrants. Right? I mean,1586 this is what1587 they do. They1588 determine when they examine1589 the1590 ballots. Whether an over vote occurred?1591

SULLIVAN - Sure. Absolutely.1592

DAY - And that1593 could be extreme1594 marks or extra marks1595 or double votes1596 in a protest1597 vote1598 happen?

SULLIVAN - What do you mean by approval?

DAY - Are you adding in1601 people that may not be1602 qualified?

1603 SULLIVAN1603 -1603 Yes.1603 Well,1604 you have Yeah.1605 A.

DAY - Imaginary.

1606 SULLIVAN - I've been in the1607 accounts, you've probably seen1608 them as well where they identify1609 Donald1610 Duck or Mickey Mouse1611 as1612 the the candidate.1613 Sure. I mean, that does happen1614 with people1615 vote. For somebody who's not in the balance or1616 write in,1617 but maybe not1618 a,1619 you know,1620 a true person.1621 There's1622 a you described1623 as a protest.1624 DAY - And and so just considering1625 what you've presented1626 to us on1627 what we'll call the Trump ballot?1628

1629 SULLIVAN1629 -1629 Yes.1629

DAY - And how do you distinguish1630 that from the1631 the Colby Tucker1632 case?

SULLIVAN - Which case?

DAY - The Cole versus1634 Tucker, where they1635 said an individual1636 was1637 signed trying to1638 set up his own will against1639 the rules for1640 voting and he was1641 attempting to make a disorderly1642 expression1643 of his preference.1644 And they threw1645 that out.1646 We're not following the rules1647 and trying1648 to stage essentially a protest on1649 his ballot.1650 I did jibe that1651 with what1652 the registrar has determined1653 to1654 be the intent1655 here.

SULLIVAN - And I apologize. I'm not familiar1657 with the case, but I will1658 become familiar if I have1659 anything to add to it1660 and request the1661 the committee to allow me1662 to supplement my response1663 on that1664 question.1665 But to describe it as I understood1666 it. I was not there.1667 I didn't witness1668 the examination1669 of this ballot,1670 but as I as I1671 understood it,1672 this ballot1673 had1674 the name1675 Donald Trump1676 written in1677 on1678 the right in1679 line1680 on a number of1681 spots in the course1682 of the1683 ballot. In in some instances,1686 also1687 where1688 there was a1689 Republican,1690 filled in the bubble for the1692 Republican candidate.1693 I1694 understood1695 that in the race1696 for a state1697 representative, Mr. Mira.

Representative Mirra1700 was1700 listed first,1701 his opponent1702 was listed1703 right below him,1704 and then there is1705 a place1706 for write1707 ins and Mr. Donald Trump's1709 name was written1710 in.1711 I know1712 that there1713 is a pleading to suggest1714 that the bubble1715 was completed1716 for Donald Trump as well.1718 I'm not1719 aware of that.1720 And if there was1721 a bubble completed for1722 Donald1723 Trump,1724 in a bubble completed for Mr. Mirra, I would1727 agree with you,1728 that would be an oval1729 vote. But I1730 understood1731 that the bubble was1732 not filled1733 in. And if even if you have1735 a write in,1736 if there's1737 no indication1738 that the person voted1739 for the write in1740 consistent1741 with1742 I think it was the O'Brien1744 case, which was a1745 district attorney1746 race,1747 where they used1750 stickers.1751

And the court1752 said,1753 a sticker is1754 no different than a1755 third or fourth person1756 listed on a ballot.1757 And1758 it's1759 not the sticker that1760 determines the1761 overvote, it's1762 where1763 the1764 person actually1765 elect. So1766 somebody could1767 write1768 in Joseph1769 Biden, but1770 not vote for him,1771 and vote for1772 somebody else.1773 And1774 it's our1775 contention that Donald we we1777 concur that Donald Trump1778 was written in as1779 a write in, but1780 the vote was actually1781 for representative Mirra1782 It was1783 it was called1784 for representative1785 Mirra at the table.1786 And1787 then it went to registerized1788 because it1789 was protested,1790 objected to,1791 by representative1793 Mirra's1794 opponent1795 and it registers1796 overruled it.1797 So all we're1798 asking is to look at1799 that ballot.

1800 DAY1800 -1800 Are1800 you1800 saying that overruled was1801 unreasonable?

SULLIVAN - Again, I didn't1803 see the ballot. The way it was1804 described to me, I would1805 say it was absolutely1806 unreasonable. If it was1807 simply1808 overruled, because somebody1809 wrote in Donald Trump's1810 name, but didn't1811 vote for Donald Trump,1812 then it's inconsistent1813 to the O'Brien1814 case.1815 And you can write in1816 names as1817 write1818 ins. But I could still vote1819 for you, Mr.1820 Chair, as the other representative,1821 and my1822 vote for you1823 is the vote that should count.1824 Not the fact1825 that I wrote in names1826 under1827 you. That's immaterial1828 according1829 to the O'Brien case.1830 DAY - The the the registrar1831 has disagreed. Right? The1832 registrar has said it was1833 a1835 overvote. And1836 awarded1837 awarded1838 a no vote or Right. canceled vote.

SULLIVAN - But that's1840 the way it was1841 ultimately1842 determined1843 to be. It was a vote1844 taken1845 away from Representative Mirra of Yeah. and not counting1847 for anybody.1848

DAY - You cited in1849 your papers that1850 this is an error1851 of1852 law. And then1853 you cited to1854 Gilligan on a few1855 other cases1856 and said that they shall1858 be1859 awarded to the certain1860 candidate. In these instances.1861 That's a guide.1862 Right? You understand1863 that well, the secretary's1864 guide is just that.1865 You say you call it a guide.1866 That's not1867 a1868 shell. Situation. Right? Each registrar,1869 each case1870 falls, and rises1871 based on its individual1872 parts of1873 the ballot1874 that they're1875 reviewing. You'd agree with1876 that?

SULLIVAN - I do. But the as1878 the legislature is1879 providing for the courts,1880 they have day normal review1881 of the other1882 ballots themselves1883 have been protested.1884 They have a right to1885 independently ultimately make the determination.1887 And I think this is fair1888 enough.

DAY - I I I'm not talking1889 about the the standard review.1890 I'm asking1891 that those1893 actuals. Those are instructive.1894 Right? Those aren't1895 requirements?1896

1897 SULLIVAN1897 -1897 Correct.1897

DAY - So that1898 the O'Brien case is instructive.1899 It's not1900 determinant.1901 See. Bear a sec.

1902 SULLIVAN1902 -1902 Well,1902 O'Brien, I think he's in1903 I think he's1904 determinative.1905

DAY - For the house?1906

SULLIVAN - Well, in in in1907 terms if the house wants1908 to follow1909 the I listened1910 to the the house,1911 as you've described,1912 is broad1913 constitutional authority.1914 Right?1915 The house has been1916 guided1917 by the legal principles1918 that1919 that have developed1920 in terms of election1921 law.1922 So in terms1923 of the1924 courts, I would say it's presidential value.1927 That if1928 we were before the courts,1929 we would argue1930 that the SJC1931 has already1932 determined that the right in absent something more1935 is not1936 an1937 oval.

1944 REP1944 JONES1944 -1944 Thank1944 you, Chairman.1945 It is which1947 no explanation1948 is1949 offered1950 as1951 to where the extra dose1952 came from?1953

1954 SULLIVAN1954 -1954 None.1954 None. None of them were of.1955

1955 JONES1955 -1955 No conjecture1956 about what1957 we think1958 this might1959 happen. Because if we1960 look at the the bold totals1961 from prior1962 to the recount1963 to after the1964 recount, was ballots1967 in Ipswich overall1968 and almost1969 almost de minimis1970 throughout the rest of the division.1971 So1972 that raises a big1973 question. Was there1975 any attempt to check1976 as I remember,1978 having1979 been1980 an election official1981 in my time, you1982 have the checking1983 book? Check1985 in,1985 get1985 your ballot, vote,1986 and check out.1987 Before we start1988 accounting, we would tally1989 the check in1990 book1990 versus the checkout1991 book. Was there any reconciliation1992 that you're aware of1993 with the balance1994 versus the check1995 in book, check out1996 book?

SULLIVAN - I'm I'm not1999 aware of that. And2000 I don't think Representative Mirra was a.

JONES - No. I'm not aware of that. Yeah.2003 No. I'm just curious2004 because2005 that really2006 raises a question. And2007 having been there, obviously,2008 all the ballots2009 were tallied up2011 that2013 day. And they will put on a stage. And then2014 I think there's more any2015 recount than status.2016 There was a break2017 for2018 lunch. And then the recount started2021 increasing ,2023 and. And then,2024 obviously, you know,2025 I think it became aware2026 at the conclusion,2027 the recount that2028 there was2029 this excess2031 number. I don't think that2032 the excess2033 number of dials was made2034 clear before the retailer2035 started with the dials. I don't think2037 it came in way to everybody2038 until the end.2039

If if you2040 have any information on2041 that.2042 I think the2043 the the debate back2044 and2045 forth the chair2046 was helpful.2047 But I thought it raises the point2048 that I think we in2049 fact do need to see2050 the challenge valves.2051 And I understand2052 that, you know, you2054 had let's say, a list of issues you thought raised questions2056 about the selection, but you basically said2058 to the court that if you only have time2060 to look at these, which we think2062 are the most bright line, if2064 you will, of the issues, in which2066 case, it would change the outcome, either to a2068 tie or to a vote2070 margin. And it seems to me, and I2072 agree with this year.

I don't think this I haven't2074 heard any information or2076 or2078 discussion or allegations of of intentional fraud.2080 But that, then,2082 are changing2083 election laws,2084 and they have changed2085 quite dramatically the last2086 couple cycles. And put2088 an increasing burden on clerks2090 and their staff2092 to do work.2094 And now we're kind of into a quiet year2096 in2097 2023 and most2098 towns may have2099 a municipal election,2100 maybe a couple of2101 town meetings. And before2102 we know, we'll be into 2024 and2104 there'll be to town election2106 and and2107 town meetings,2108 but they'll also be2109 faced with the presidential2110 primary, state primary, and presidential2112 election. I know we're right back at it. And sometimes they're undertrained, under staffed,2116 overworked, under2118 resourced, and that really heightens the possibility2122 of2123 humans2124 unintentional2125 errors.2126

And I think and then2128 sometimes, the decisions that are made in the ways we count to handle2130 at a mid to small2132 level, only potentially2134 compound the possibility for error.2137 And as you said, as the2138 margin for2139 error grows,2140 it makes it real challenging to to2142 make sure that the world of2144 voters is in adhered to, but I think that's what we have to do. But I absolutely2146 think that we need to look at at least2148 those challenge balance2150 that2152 this, frankly, you know, you're giving the opportunity,2154 or a judge didn't give you the opportunity to2156 to present and and2157 make a decision on.2158 And I do think that2160 is partially due to the fact that we had the latest2164 election you possibly found. November eighth election2166 as opposed to November second2168 election.

2170 Let's2170 say, and that the the talent that inspired2172 against you, if you will.2174 But, you know, this2176 is This2178 is2178 the2178 close2178 election it can be. And2180 the fact that we're faced with of these2182 in session, and the last time2184 was a decade2186 ago, and the timing for that , so definitely before that. And it2188 highlights it.2189 We're potentially2190 gonna be faced with more of these going forward2192 in light2194 of the change in election lock. And I also2196 think of the2197 important thing is that2198 we as a body since there's things,2201 is the is2202 that the issues2204 related2204 to this case and the other case2206 but2207 just2208 some of the underlying2209 discussions that we have2210 to have about2212 elections. And let's say you mentioned a standard of signal.2214 And2216 even if we determine that2218 that's not relevant2220 here. If different2222 alerts and different towns use a different2224 standard.2225

2226 In2226 checking2228 signatures, that can have a very serious impact on the outcome2230 of elections that are, you2232 know, district based.2233 Maybe within a2234 community, it won't make a big deal on a2236 municipal town Selectman race. But2240 that it may have an2241 immediate to make sure that2242 there is a standard or2244 practice that2246 is adhered to2248 by all sorts2249 in doing that2250 and that I think2251 comes with training and2252 oversight. And resources2254 for our town2255 authority. So we've2256 asked to do more2257 and more and more.2258 And it's not2259 as if during2260 election season, they get to shut down from other2262 other responsibilities. It's not as if nobody dies, nobody wants a dog license,2264 nobody wants a fishing license,2266 nobody wants to get buried, nobody has2268 a2270 child. All those responsibilities entail.2272 So I think I've2273 gone on ons.2274 And I've gone2275 on to get2276 a few things up Thanks.2278

2279 DAY2279 -2279 Just2279 a2279 a couple2280 legal loose ends there that2282 we wanted to tie2283 up with with you you disagree with the the decisions2286 that register is made in2288 certain ballots, but2289 you're not alleging2290 a due process to deprivation2292 by the recount. Right?2293 Both sides were represented2294 by counsel. Both sides had the opportunity2296 to object, both2298 sides were2299 heard, fully,2300 they weren't shut out in both sides,2302 then2303 listened2304 to the decision by the2305 way just judge that time.2306 Is that fair to say?

SULLIVAN - Yeah. I think that's fair to say2308 regarding the2309 contested ballots,2310 Mr. Chairman. I think the2314 the issue concerning2316 the matching2317 of the2318 signature2320 on the the2322 envelope and the the actual signature of the municipality.2324 I don't think that there was any2328 opportunity2330 or Representative Mirra to a2332 challenge that based2333 on the way2334 it was set up at that moment2336 in2338 time.

DAY - Again, those would be different revenues. Right? You're looking at2340 certain votes, which2341 you wanna.

SULLIVAN - Before the vote2343 even.

DAY2344 -2344 No.2344 But2346 that's remedy for that would be ordering a new election. Right?

SULLIVAN - Correct. That's correct.2349 Yes.

2350 DAY2350 -2350 And2350 it's I think it's fair2351 to say it's been the position2352 of the house. We don't have the authority to do that absent a2354 vacancy.

SULLIVAN - You have to order a vacancy in the office. Right? Yeah.2358

DAY - Would have to declare that2359 there was no election2360 completed.2362 Right. On2364 the you had mentioned that typically,2366 spoiled ballots2367 aren't unspoiled.2368 It happens.2370 Right?

2372 SULLIVAN2372 -2372 I'm2372 not aware that the spoiled balance get2374 unspoiled, but somebody could certainly2376 correct me on that point.2378

DAY - The Well, you're excited to record a mass regulations2380 to support the proposition that2382 they shouldn't be unspoiled ever.2384 There's a follow up2386 code2386 that that requires that2388 all spoiled and2389 unused ballots shall2390 be counted in determination,2391 held to be made,2392 which whether each sealed absolutely ballot envelope2394 rejected as2396 defective should have been rejected or accepted. How do you judge those percent?

SULLIVAN - Well, in terms2398 of the absentee ballot being identified as2400 a spoiled, which is different than other.

DAY - Ballot office soils, not the accountant. Right?2404

SULLIVAN - Yeah.

2406 DAY2406 -2406 Under2406 this code, all spoiled and unused ballot shall be counted,2408 and then determinations we made.2410

2412 SULLIVAN2412 -2412 I'll2412 take2412 another look at that, Mr. Chairman, and see whether2414 or not I am. Further clarification2416 on
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SULLIVAN - Can you just make just additional point before2430 we step aside2432 here?2432 And I think Representative Jones raised that2435 in terms of the2436 timeliness of2437 the election,2438 the recount in this particular2440 race took place in the first week2442 of December, which when I look back2444 at other2445 recounts is,2446 you know, a couple of weeks later2448 in most instances.2450 And I know Mr. Mirra has been criticized2454 by his opponents2456 counsel for2457 the the2458 time in which he2460 filed the complaint in the Superior Court challenging the election.2462 Mr.2464 Mirra was waiting for the minutes from the the town2466 of Clorox.

To make sure that he had a fulsome incomplete analysis of2472 the votes that2473 were being challenged2474 by the other2476 clerk. I think the Raleigh minutes2480 came in, in2481 the afternoon or2482 evening of the 21st of2484 December. And that's when the the complaint was filed.2486 Based on2487 the statute,2488 it clearly was filed well within the2490 timeline on the2492 statute. And at least according2494 to the Secretary of2495 the Commonwealth, which we2496 agree with, well within the time that2498 the courts still had2500 jurisdiction. Over the matter. So and I know that is not gonna2502 weigh in in terms2503 of what this committee2504 does, but I did notice it was in some2506 of the pleadings that had been2508 submitted So

MIRRA - Okay. Something quickly.2512 But Mr. Chainman,2514 if2514 I could just add something2516 out quickly in2518 closing. Just wanna state2520 briefly. I don't want anyone2521 to think that this was2522 a quote unquote stolen election. Those are2524 very inflammatory words, especially these kids. I don't think it was any kind of massive fraud involved.2528 There was no conspiracy involved.2530 There was no nefarious intent2532 here. I when2533 you find extra2534 balls in federal justice in Mr. Chairman, I think2536 it's a simple matter of human2538 error. And I don't2539 want anyone in mind2540 who's thinking that the election was quote2542 unquote stolen.2543

You know,2544 the the voting machines were not hacked2546 with stamp with what those machines are amazingly accurate. And,2548 you know, at a time when the the trusted2550 credibility in our voting2551 system is at all2552 type2554 lows, I want this service example where2556 we're gonna remedy we're gonna remedy any kind2558 of problems with our electricity.2559 But I don't want anyone2560 to come away from this thinking that it was quote2562 unquote, stolen.2564 I think it was held fairly. I think every2566 time Trump did their best to hold2568 a fair open election, and2570 I think any of the issues that we brought2572 up today honestly, are are simply2574 about a human2576
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2641 GERALD2641 MCDONOUGH2641 -2641 ATTORNEY2641 FOR2641 KRISTIN2641 KASSNER2641 -2641 So2641 it's2641 an initial matter.2642 I just wanna thank2643 this committee for convening2644 this2646 this hearing. And I especially2648 wanna thank the of a house2650 when I'm Mariano. I think2652 this has been2654 handled completely appropriately.2656 I think2657 this is,2658 you know, even though2659 you know, we had2660 a lot of angst among our supporters2662 about seating Mr. Mirra’s a holdover, but that's2664 the constitution requires2666 that. There's2668 no This isn't a bad2670 job.2670 There's no funny business going on in part of2672 the legislature.2673 We appreciate2674 the care that that you've2676 shown in the process2677 that you put into2678 place.

And I and I think2680 also it's important to note that in2682 all the steps2684 in the judicial process, we2686 have maintained2688 since certification on December fourteenth. We have2690 taken the2691 position that2692 this matter is2693 in the exclusive2694 jurisdiction of the2696 house. I had Mr.2698 Mirra brought a lawsuit on December2700 ninth after2701 the recount2702 or on December thirteenth or even maybe2704 as late as December2706 fourteenth he could have made a change in that, but it it didn't2708 happen. For example, in the2710 Alissa case back in 2011, there was no certification, and there was an2716 existing lawsuit2717 going on.2718

So in that case,2719 I think the special2720 committee2722 took a step back2723 and waited to see what would happen. In2724 that case,2725 both individuals2726 accepted the jurisdiction2728 of2730 the of the court, Mr. Alaseira filed the complaint2732 Mr.2733 Durant to2734 file a counterclaim so that2736 both both candidates were accepting the2738 jurisdiction up the court, so I think that's quite different. But I think throughout this proceedings2744 in in the judicial forum,2746 we have prevailed at every2748 step We prevailed2750 in the2751 superior court2752 on the motion to dismiss2754 the complaint and on opposition2756 to the motion of the preliminary2758 injunction.

We prevailed2760 then in the appeals court,2762 and we prevailed2763 in this period2764 court. I2765 think I'm2766 ready to retire. I haven't had so many victories2768 in just when little2770 legal proceeding. But,2772 you know, it's quite clear2774 that the judicial2776 system has taken a look at2778 this and has decided that this forum here at House2780 is where this case should be resolved.2782 We also wanna2783 thank we2784 also thank Mr. Mirra for his2786 service to the commonwealth over the years as a state representative.2790 I had a brother who2792 served in this2793 distinguished body and2794 I know that faculties and hardships2796 that you all2797 go through.

2798 And2798 I think we need to have bought Mr.2800 Mirra for his2802 service. I'm not asking for a lot of applause. But and I also wanna thank2806 opposing2808 counsel Chris O'Mrain2810 from that2811 restaurant in2812 South Boston, his family, and2814 and Michael Sullivan, the former US2816 attorney. You know,2818 these are a2819 very good top2820 top of the line lawyers.2822 They're Zealous,2823 and they're2824 representing of their2826 client. And it's a it's a challenge, but they've also been extremely professional2830 and courteous to2831 me, and I2832 appreciate all of2834 that. And I also2836 want to2837 thank the2838 all the public employees and2840 individuals who are involved in the recount.2842

We had in each recount you2844 have aborted registrars2846 who are unpaid,2847 who make determinations.2848 You have clerk,2850 an assistant clerk from the2852 individual town. You have municipal2854 lawyers. You have people at at different tables. Some of them are are2856 municipal employees from2857 that town like2858 Ipswich. Some are clerks from2860 other towns who come just to help2862 out. And some are other2864 wardens or clerks in the election process2866 and some are just individual2868 residents of the town who are2870 volunteering.

It's a2872 massive effort that needs2873 to go in to2874 run these2875 rig counts.2876 And I think they did an extraordinary2878 job.And we2880 were there I was at2882 different recounts2884 myself. I personally2886 reviewed some of the ballots2888 that have been talked2890 about. Here today, I argued about those ballots with2892 opposing counsel, but2893 there is opposing2894 counsel on both2896 sides. And2898 I think that, you2899 know, the the clerk's2900 what what I2901 am a little disturbed2902 about is there there2904 is in in in at least of those affidavits that you received.

There is some criticism of the clerks2908 there, and I I2909 just think it's unwarranted.2910 I think the clerks do an outstanding2912 job2914 And the fact that you see so many clerks when you're when you're in, if2916 what you see clerks from2918 other communities in in in2920 the area who come2921 by just to help2922 out. That the clerks2924 are2925 unsung2926 heroes and heroines2927 of our democratic2928 system. And2929 they deserve2930 as2932 much support and praise as we can give2934 them. They're extraordinarily2935 I appreciate2936 the remarks that you2938 made. Representative Jones about the2941 clerks. They're just invaluable2942 resources.2944 So I2948 think I think I'm gonna stop at that point and then I'm gonna turn it over to Kristen to make2952 a few2954 points.

KRISTIN KASSNER - RESPONDENT - Thank you. I certainly2962 want to thank2964 this committee and the Chair Mariano,2967 the body2968 for bringing us here today2970 after a long post2972 election. That brought us here. I also want to thank2976 Jerry McDonough. He's2978 been wonderful and2980 certainly a process that we're not used2982 to not all of us have2984 gone through, and many2985 of us have actually2986 not gone2987 through. And2988 has been just2990 a guiding light through this process. And2992 again, here today. All of the volunteers, as mentioned,2994 the volunteers at the2995 recount, we alone had2996 a hundred and 1202997 people that were volunteering2998 at the different3000 recounts. Managing and organizing3002 without from the team.

3004 I3004 wanna thank all of them. Some of3006 them are here today. Thank you for3008 being here. I also just3010 wanted to say that I've had we've had full faith3012 in the electoral3013 process throughout this3014 experience and as3016 well during the election,3018 post election, the recount3019 in here as well3020 as3021 here.3022 I ran for this position. I've been working in Minus the government for 203026 years as a3027 professional planner really3028 working to make our communities3030 better for people in the3032 environment. Our campaign is about protecting people, building a strong future, and3034 protecting our freedoms. And3035 that will be my3036 priority in the3037 legislature. And after3038 a year long campaign, a close3040 election, a complicated recount and support3044 proceedings.

I'm ready3046 to take on this new3048 challenge. And I have continued3050 to meet with constituents preparing3052 for the3053 legislation deadline3054 at the3055 end of3056 next week. To address3058 really important issues that3059 are facing both the3060 commonwealth as well3061 as our community3062 and our districts of the Second Essex,3064 which includes Ipswich Valley, Newbury,3066 Georgetown, and top seal3068 Hamilton Topsealed precinct ,3070 and issues facing especially water3072 infrastructure protection of the rivers3074 and the economy. And I hope3076 that we will help you do everything that you need from us3078 and hope to that3080 we can get3081 to an expeditious3082 revolution. So we3084 can I can get3086 to work to serve the3088 the great people, the3089 second Essex district.3090 So Thank you3092 again.
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3096 MCDONOUGH3096 -3096 If3096 if it's appropriate3097 for the committee,3098 I I would like3099 to respond to the3100 individual allegations that were made by on my brother console.3104 I3105 think3106 there were general ones.3108 There was the extra balance in3110 Ipswich It was spoiled balance and rally.3114 It was3115 the individual3116 ballot3117 problems,3118 alleged3120 problems. And then the male and standard trunks.3122 So let me deal3123 first with the with3124 the absentee ballot3126 signatures. Challenges to absentee ballots,3130 like3131 challenges3132 to any3134 ballot. Must be made3136 at the time3138 that the that3139 the absentee ballot3140 is opened or at3141 this time, like the3142 voter presents him or3144 herself at the polling place.3146

That then allows3148 the3150 the municipal worker, the warden,3152 to put3153 a marking3154 on the back of the ballot. It says the3156 ballot is challenged and3157 giving who challenged3158 it? And write down the reasons3160 for it, then that record is maintained.3162 So the3163 appropriate time3164 to to3165 challenge absentee,3166 you know, write in mail in3168 ballots, is when3170 they're open. Mr. Mirra said that3172 he was in Ipswich when3173 they opened up a thousand3174 mail in ballots,3175 so that was3176 his opportunity and his3178 time to challenge those ballots. You do not challenge absentee ballots3182 at3183 the3184 recount3186 itself. And that the challenges3188 to absentee ballots are covered by chapter3190 54 section 96, but also in the recount3194 statute.3196

Is no provision for examining signatures3198 on absentee ballots.3200 What the what the provision actually3202 says3204 is that you can review unopened you3208 can review rejected absentee3210 ballots.3212 And those envelopes3214 of materials must be preserved.3216 Any3218 challenge, of course,3219 this may contribute3220 at a recount,3222 but the challenges3223 needed to be made at an earlier3224 point before3225 the recon.3226 Now, let me move on to the3228 rowdy spoiled ballot3230 issue.3232 Those foiled ballots work, mail in3234 ballots. Usually, when3235 you go into3236 vote in person, then you3238 have a3240 ballot. And you spoil it. You spoil it. It might be an3242 over vote for governor.

It might have3244 voted for,3245 you know,3246 more healing3248 than you know, and and3250 he3252 republished it if they recognizer. But3255 he's gonna3256 move forward. That's3258 it. But, you know,3260 that would be Yes, I would.3262 that would that3263 would be an overvote3264 and the machine would reject that3266 ballot. And usually,3268 the voter is there, and the voter3270 is able to then3271 decide, no, I wanna3272 vote for both of3273 them. And they'll press3274 a button. It'll go into the ballot3276 box. And in other3278 cases, the voter will3279 say, 0, my goodness.3280 I didn't know I made an overt3282 vote. So in that3284 case, the person who's given a new ballot and then the3286 ballot goes into3287 a spoiled envelope.3288

As the clerks have3289 admitted and it's in3290 the affidavits3292 here, what they did up3294 in rowdy3295 was they3296 they took every ballot that had been,3298 you know, that3299 was rejected by3300 the machine and marked it as3302 spoiled. So3304 the ballot could3305 have been spoiled3306 based on a3307 race for attorney3308 general, a governor, or state senate, or3310 something else, not in the state rep3312 race. So by spoiling that ballot,3314 they took3315 away votes3316 from that3317 voter for3318 all the other3320 people for whom the ballot should not was not spoiled.3322 It's only3323 the spoiled3324 vote on the3326 ballot. That should be rejected.3328 So when3329 our lawyer3330 is clear3331 in Rowley3332 asked to examine3334 the spoil balance and examine3336 the oil ballots.

There were mail in ballots3338 where there were appropriate votes3340 for Kristin3342 Kassner. And3344 that was not the reason that the ballot had3346 been spoiled. And so the3348 the3349 board3350 correctly3352 deciding to count3354 those votes for Kristin Kassner and I I just might3358 remind you that back3359 in 2011 in the Alsea case, what happened in3364 court there was there was ballot3366 that was3367 an absentee3368 ballot that had been3370 spoiled but it was spoiled3372 for the race for governor,3374 not for the race for state representative,3376 and the judge in that3378 case determined that that ballot should be counted for3380 Alsea, and that's how it3382 ended up in a time. So it's3384 no different from3386 that. That ballot was improperly3388 spoiled in3389 2003.

These ballots were improperly3392 spoiled in 2022. A third issue is is3396 the the discrepancy3402 between the number3403 of certified and3404 recounted ballots, particularly3406 in Ipswich where there were. All I can say to that is somebody who has been at way too many recounts, is every recount3414 finds additional3416 ballots. It's rare that you don't find3420 additional balance. And those additional3422 ballots broke more3424 for Ms. Kassner than for Mr.3426 Mirra, but it's not unusual3427 to see there'd3428 be more ballots that are found and3430 counted. During the recount. And the recount is a is a3434 different process than3435 not an election3436 night or happens during the week.

All the ballots3438 are looked at in3440 public It's a public meeting. Everybody can see everything that's going3444 on. And3445 those ballots3446 were appropriately counted.3448 And we we could3450 raise an issue ourselves in in the second3452 precinct in Newbury,3454 there were less ballots3456 counted. On during the recount that were counted during3460 the3461 initial3462 certification.3464 And of those was a3466 blank. So that's irrelevant.3468 But of those3469 were for Kristin3470 Kassner So if if3472 we wanna argue3473 about, you know,3474 these different ballots that3475 should be counted or3476 whatnot, it's gonna take a lot of friends of3478 work to look3479 into that.3480

But I think3481 that everything3482 we know about recounts3483 is that there's always3484 discrepancies between the counts on3486 the day of the3488 election3489 and3490 the following days3491 and the final3492 out. And3493 the last3494 thing about the individual protested3496 ballots, I think it's quite clear in3498 the3500 statute, chapter 54, Section 106, if a voter3508 marks more names than there are persons3510 to be elected on an3512 office, this ballot shall3514 not be counted3515 for such office.3516 So and the you've heard about, you've3518 only heard about of them here today,3520 and these up in up in3522 Ipswich. There are 03524 something3525 challenges3526 that protested ballots3528 by Mr. Mirra.

That are sitting in on envelop somewhere. Among3532 those are ballots that that the voter3534 filled in using mail in3536 ballots used a3537 pencil rather than3538 a3540 pencil. It's still in the oval. Those were all objected.3542 I ended up objecting3543 to of them3544 myself just to3545 test to see3546 whether they joined me3547 in my objection when3548 I made it. When it was a Casnerville,3550 but it's you know,3552 there were many, many things. There was a ballot3554 where someone had3556 had filled in both3558 circles for Kassner and for Mirra,3561 and3561 then Kassner then put3562 an x next to3563 the over the3564 oval. For for Mr. Mirra and wrote no3568 to the left of that.3570

And while leaving this overfilled3572 in for Ms. Kassner, and put a yes3576 next to that. And that3578 seemed to be pretty clear as to3580 what the voters intent3581 was in that ballot,3582 but that was protested, and that's of the3584 ballots that's still an issue3586 here. So there's3588 there's many many different ballots. I think3590 these election officials did the3592 best they could with3594 with making determinations.3596 And and you don't3597 always have to make3598 a determination for a3600 ballot. You can the3602 the clerks themselves,3603 the registrars themselves,3604 can decide that a ballot3606 cannot be re the3608 intent of the voter cannot be reasonably3610 asked or taint.3612

And if you look and that and that, you know,3614 I know the scribble ballot,3616 the the that's3617 that that Mr. Mirra is talked about endlessly, It's very similar3620 to that. Going back to the Alsea3622 case, it's very similar to that ballot3624 in the Alsea case. In3626 that case, the plot3627 was rejected because of3628 the governor's race. The voter had done scribbles on3632 the oval for3633 candidate and3634 then scribbles underneath3636 that and a little bit in in the circle for the for the other candidate3640 for governor. And that was3642 rejected by the scanner as an3644 overbook. And the court had no no problem with that.3648

The court's only issue was3650 whether or not the scribbling mark in3652 Mr. Alsea all worked.3656 And we we think that3658 that was a3659 determination that was3660 made by the board3661 of registrars. I was3662 there, I arguedit, and it looked like different markings3666 there on3667 that ballot.3668 And it looked3670 like that from the perspective3672 of the registrars of voters, they could3674 not reasonably ascertain3676 the intent of the3678 voter. And so3680 that is that's our position3682 on it. That was3683 our position then. And,3684 again, I just wanna Thank you all for the3686 time, and I'd be welcome to hear any questions3688 you might have.

DAY - Thank your counsel,3690 and Ms. Kassner was well.3692 I guess it started3693 off with the same3694 questions we3695 had for3696 representative Mirra and and3698 his counsel. What is your3700 opinion on the significance of the certificate3702 of the summons3704 sent?3705

MCDONOUGH - Well, I I think that the3708 certification on December ,3710 and the3711 summons to3712 to Ms. Kassner that was issued at3714 the same time, is a bright3716 line. In terms of election contests.3718 Once that determination3720 is made, everything that the3722 secretary of state has to do from that point is3724 ministerial.3726 After the secretary signs that the secretary just has to3728 take that and send3729 that over to the3730 to the house of3732 representatives. I'm not sure3734 that any court could have the authority3736 to order3737 the secretary3738 to change that3740 certification when it3742 was loaded on by the executive council signed by the secretary3744 of the council and signed3746 by the governor.

So we think that's3748 that's a bright line3750 distinction. And I think that when I mentioned the bank's case in3754 my in3755 my motion3756 to dismiss in3757 Superior Court, I3758 think I only3760 focused a sentence on that. But the bank's3762 case was picked up by3764 judge Drexler3765 there. And3766 and really, he really looked at it3768 extensively. And and that was something that was not apparent3772 to the to the secretary3774 of state when secretary of3776 state filed their opposition3778 to the motion3779 for pulmonary injunction.3780 It was not apparent to3782 the municipal attorneys as well. They didn't3784 mention the bank's case.3785 I don't think they3786 had done work on that.3788

But then3789 after that,3790 we discovered that3791 there was an3792 order3793 from3794 a special committee here3796 that a special committee from 2003. And if3798 you look at3799 that order, they3800 spend an3801 incredible amount3802 that3804 legislature spent an incredible amount of time talking3806 about the bank's3807 case and talking3808 about when3809 the authority3810 of the court3812 ended and3814 and these authorities3816 exclusive jurisdiction3817 move to3818 the3820 to the House of3822 Representatives. So that certification in in my mind is a3824 bright line. That if you if you3826 wanna initiate litigation, you have to initiate3828 it before there's a3830 certification. Otherwise, you have3832 to deal with the House of Representatives, which are3834 we doing here?3835

DAY - And and the3836 does your client agree that or I should ask what's your position3840 on the involvement of the judicial3844 branch at this point in time in this matter?

MCDONOUGH - At this point in time, you know, we've been3848 through period court, the appeals court, and the and the SJC,3850 and and they've not only upheld our3852 position. The appeals3853 court, and the superior court said that3855 Mr. Mirra, has no3856 likelihood3858 success in the merits. He has filed a motion for.

DAY - Sorry. I think he has3862 a that that that should've3863 been a sign of it. Mhmm.3864 You agree that the3865 involvement of the judicial3866 branch ceases now3868 that the special committee3869 has taken jurisdiction?

3870 MCDONOUGH3870 -3870 It3870 it yes. But somebody3872 needs to file a motion to3874 that. For that with the with the appeals court. Because there's a notice of appeal3876 there.

DAY - That's in that's3877 in the yeah.3878 The courts will get you all3879 to Yeah. the deal.3880

3882 MCDONOUGH - Right Right.

DAY - And the the decision of this speciality will be accepted?

MCDONOUGH - You know, if if we don't prevail3886 here, this is3888 it.

RYAN - And just just for clarification too3892 on on the certification and3894 the the House of Representatives3896 the body3898 itself. In these previous cases. By us convening this3900 group in having these hearings, we have3902 taken jurisdiction. Correct?3904

MCDONOUGH - Yes.

3906 RYAN3906 -3906 Okay.3906

MCDONOUGH - I I believe that3907 when the special committee3908 was set up, and3909 and, you know, its3910 question about it3912 was I mean, the House of Representatives3914 did nothing after the certification.3916 But as3917 soon as3918 the House of3919 Representatives did something,3920 it has exclusive jurisdiction Now the House3922 decided in 2011 not to exercise3924 that jurisdiction, and they all say a case. They3926 did set up special3927 committee, but they waited3928 for the end of the court3930 proceedings. That that was3932 the choice that the candidates,3934 I believe,3935 made.

RYAN - Just wanna emphasize3937 that that3938 we we have3939 taken jurisdiction. Yes.3940 Thank you.

JONES - Just just to clarify, certification3944 is a certificate that's3945 mailed to the KV.3946 Is that what you're referring to? Because I'm uniquely3948 after the first November election. There3950 was a there3951 was a certification3952 by the governor's council of3954 the November eighth3956 results. That was then assigned, and then that triggered3958 the re the ability of the medical files3960 for the recount?

MCDONOUGH - Well, what3962 happened was that, yeah,3963 there was a first3964 certification of November 30. Right. And3968 that triggered3969 the recount.3972

JONES - Because congressional votes.3974

MCDONOUGH - Yes. Right? Because there was there had been sufficient.

JONES - There's a subsequent3976 certification after3977 the recount3978 was completed. And3980 then that was on November fourteenth. Right? That led to the3984 certificate.3985

3986 MCDONOUGH3986 -3986 Yes.3986

JONES - Let's make a distinction between the3988 certificate. A certification because.

MCDONOUGH - It's it's it's it's the return of votes.3992 I think it's it's called. And then there is a certificate.3994 There's a summons actually that3996 Ms. Kassner had that she violated her options3998 and go to jail for not abided4000 by that summons to appear at4002 the house chamber4004 on the She was not4005 chamber. She was in the shower.4006 She was in the shower.4008

DAY - Counsel, you were your client alleged4012 that there was any fraud?4014

MCDONOUGH - I don't know if4015 fraud anywhere in the4016 in the election. No. Because that thing was from4018 very professional.

DAY - Any intentional4020 misdeeds by Richard's?4022

4024 MCDONOUGH4024 -4024 No.4024 No. And I'll I'll say4025 that about, you know,4026 Mr. Mirra’s supporters and his4028 attorney and there4029 were a lot of4030 attorneys. We're we're involved in this. We had some attorneys4032 actually from from4034 from the4035 Republican National4036 Committee came up from Washington DC to4038 help on4040 this. Was almost an international case. But they4042 were all professional, his volunteers4044 were all very4046 professional, and and4048 very you4049 know, I had4050 good conversations with with many of those4052 people. They're good people.4054

DAY - Would What what's your response4056 to and4057 if I'm misquoting,4058 please counsel, let me know4060 that O'Brien is controlling4062 here. On the on4064 the intent issue.4066

MCDONOUGH - Well, I I O'Brien is like a seminal4070 case. But4071 in this4072 case, you know, I saw the back4074 in Ipswich.4075 There wasn't4076 overfilled in4078 for Mr.4080 Mirra, and that Donald Trump's name was written4082 in, and the oval was filled in4084 for Donald4085 Trump. ovals were filled in in that ballot.4088 Now There's no mistake about it in my mind.4090 I made a copy of4092 it.

JONES - So then so you'd have no.

MCDONOUGH - I didn't make a copy of the ballot. I've made my own original infection.

JONES - Okay. Which you4100 you would then have no objection for you to do those contested4104 ballots. Those or any other ones that are outside.

MCDONOUGH - I I I think if this committee is come you know, like Judge Dressel4108 said, I don't think4112 that examining this piecemeal is the way to go. If they wanted to if they had filed a complaint about too4116 ballots,4120 then that might work, but there's a whole lot of issues here. And there's a whole lot of issues to determine, and then we're gonna respond4124 to a lot of those I mean, we didn't even have an opportunity to answer4128 the complaint and and make any allegations. So we're4132 you know, I think it's it's a waste of time, and I4136 think to be honest with you, I think it's a slap in the face to those registrars who, you know, and I I was there. You were there4140 as well, I believe.

JONES - And and it was literally it was a unit you mean, the4144 most.

MCDONOUGH - No. There was a two to one vote but there was4148 a lot of discussion about it among the registrars. They didn't do this4152 cavalierly. They didn't go in there saying we're gonna do this Mirra we're gonna do this for Kassner They spent an awful lot of time discussing it. These4160 were And this is what they do. This is what redness4164 drives do. This is what, you know, I do it kind of hard4168 time, but they do it full time. Looking at this. So I I think4172 it it just I think it's unnecessary and and really a slap4176 in the face to those registrants.

JONES - Just you mentioned the score of ballots.

MCDONOUGH - Yeah.

JONES - Did you give me a score of balance in4188 all between these?4190

MCDONOUGH - Yes.

JONES - And those all4192 caps separately so that you can distinguish4196 between you mentioned, like, a smaller ballot that somebody maybe voted twice and asked for another ballot. in which case you would agreed that first blow ballot shouldn't be looked4204 at for any of the races because they've had another chance4206 to fill in Yes. an entire ballot. Are4208 those all kept?

MCDONOUGH - They’re all kept.. No. I don't4212 know.

JONES - They're all kept they're all kept this this, you know, not in of the Gong, but it says boil, so4216 you can distinguish between somebody who's had a chance to vote again versus someone who's4220 not had a chance to vote.

MCDONOUGH - You know, the the mail4224 in ballots are different. From in person balance school balance. No. In person balance is4232 different than male and4234 balance. Mailing ballots, I4235 believe, are they yellow4236 on the pump or something like that? So these were all mailing ballots4240 that were objected to that that had you know, that, you know,4244 that that had.4245

JONES - All spoiled on election day.4246

MCDONOUGH - They were spoiled on4247 election day. As the4248 clerk said, they were spoiled because they4252 were they just we didn't miss Boiled because the machine rejected them, which is inappropriate. It it shouldn't happen4256 that way. It should have been should have been separated and and put in a4260 special place to each other later. And I think4264 the quirk understands that was a mistake. Stakes4268 happened.

JONES - Right. No. No. I appreciate you saying that because that's exactly when you say the registrar has spent time. They can try to write the decision,4272 but the human beings and mistakes happen. That's4276 why. Then that we ultimately is the final4280 judge in this, may need to look4282 at those in test and issues. So4284 I agree with you.

DAY - I Thank you both4288 for appearing and and4292 for coming forward today. And I wanna commend4296 both sides on the civility that you've exhibited in this. And particularly for the remarks, we both delivered on integrity of our elections. It's welcome,4304 especially in the national setting here today.
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