Jurisdiction in Barnstable Election for Rep. is Muddy Matter

Does House Have the Right to Ignore Court Order?

By Curt Lovelace
January 9, 2003

When the voting was over in the race for the 3rd Barnstable representative's seat in the legislature, the incumbent Democrat, Matthew Patrick, was 12 votes ahead. A recount widened that margin to 17 votes. Republican challenger Larry Wheatley went to Superior Court alleging "voting irregularities." The court agreed and ordered a special election.

Shift the scene from the courts to the legislature and a different picture appears. Matthew Patrick has been seated as a "holdover" until a successor has been determined. He has the right to speak, to vote and to collect his pay. According to Rep. Shawn Kelly, Dean of the House Republican Caucus, "The Democrats in the House have done everything but declare him the winner." There is some question whether the House will honor the court's order. House Majority Leader Salvatore DiMasi has suggested the Legislature might not be bound by Judge Richard Connon's order in this matter.

MassNews asked Republican Kelly whether the House has the right to ignore a court order. He replied, "Is there a provision in the [Massachusetts] Constitution that says a legislature has a right to seat its own members? Yes, there is." On the other hand, he said, the law "does allow for elections to be adjudicated in the court." This appears, then to be a matter of joint jurisdiction. So one wonders what methodology a Democrat-controlled House will employ to ensure that the person representing the 3rd Barnstable District is one whom the voters have actually chosen.

Kelly says, "The facts are not in dispute. They state that there were irregularities. From a legal perspective the court's ruling is reasonable, rational and sane."

Wheatley agrees that the question of seating a member belongs to the legislature. "Few people could answer the question of jurisdiction," he tells MassNews. He counsels patience as the legislature sorts out what is the right thing to do in this case. "We should give them time to study the issue," he says. He believes that this case is unique in Massachusetts election history. He explained, "All the cases we've been able to find have to do with seating members. This case is not about that, it's about voting rights."

Voters Deprived of Rights

While all the attention has been on the two candidates, the facts are that some voters were deprived of their right to cast a ballot. Judge Connon ruled that some voters were given incorrect ballots and that the polls were closed for 35 minutes, denying others the opportunity to vote. He declared, in part, "Whenever the irregularities or illegality of an election is such that the result of the election would be placed in doubt, then the election must be set aside and the judge must order a new election."

Rep. Kelly, who issued a press release on behalf of the House Republican Caucus, wrote, "Some people have been denied the ability to vote, and others were simply given the wrong ballot. It is the position of the entire Republican Caucus that the only fair course of action for the people of the 3rd Barnstable District, and for true democracy, is to honor the court's ruling and hold a new election."

Joint jurisdiction and patience with the legislature notwithstanding, Wheatley believes that the legislature should set the date for a special election. He reminds people, "We do have an order from a judge to hold an election and we're proceeding on that basis."

The next course of action rests with the House leadership. No date has been set for a special election.