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State judge denies appeal in Cape Cod ballot case

A state Appeals Court judge on Wednesday denied an appeal filed by a Republican candidate for state representative on Cape Cod, which challenged a lower court’s decision to allow 2,600 mislabeled mail-in ballots be counted in the Nov. 8 election.

The denial, posted on the state appeals court website, comes after a Tuesday hearing where lawyers for Tracy Post, vying for the open seat in the First Barnstable District, objected to the counting of ballots that incorrectly identified her opponent, Democrat Chris Flanagan, as a “candidate for re-election.”

“It’s clear from the judge’s decision that there are no next steps at this point,” Post said in an interview Wednesday. “There’s been no pre-election relief — but they preserved my rights for post-election relief.”

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“Hopefully, I’ll be successful [in the election] and it will be a moot point,” she added.

Post had asked for a new set of corrected ballots be sent to the affected voters, clearly identifying the error.

The incorrect designation was printed on mail-in ballots sent to approximately 2,600 Dennis voters before the error was caught on Oct. 11, according to Debra O’Malley, a spokeswoman for the Secretary of the State’s office.

A second, corrected ballot was sent to those 2,600 voters shortly thereafter, O’Malley said.

“Unfortunately we missed it in the proofreading process, which does happen rarely,” she said. “All we can do when we make an error on the ballot printing is try to correct it as best we can.”

O’Malley said that voters who submitted the original ballot will have the option to also mail in the second corrected ballot — thus nullifying their original ballot. O’Malley said.

Should they choose not to do so, she added, the original ballot — with the incorrect listing — will be counted.

In denying the appeal, Justice Gregory I. Massing wrote that state and local election officials have taken appropriate steps to protect candidates, particularly if there is a post-election challenge.

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“I am confident that all efforts are being made and will be made to preserve and segregate the incorrect ballots and the corrected ballots sent in their place in order to protect the rights of the parties in any post-election action to contest the election results,” he wrote.

Lawyers for Post filed for an injunction on Oct. 18 against several state and local election officials, arguing that the incorrect ballots should not be counted.

The injunction request also stated the corrected ballots should clearly identify the mistake.

“[The Secretary of State’s office] didn’t identify to the voters what the error was,” said Post. “They consider it to be minor. I do not.”

Post requested that a third set of mail-in ballots should be sent out — this time, with with a clear “notice to voters.” These ballots would be the only ballots to be counted, according to court papers.

The request for an injunction was denied on Oct. 21 by a Barnstable Superior Court judge.

Abe Kasparian, Jr., an Independent also seeking the First District seat, filed an emergency motion, seeking to become a third-party to the case, and seeking $225,000 in damages from Post, according to a copy of the filing.

The motion was denied by a judge on Oct. 24., court records show.

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State election officials maintain that the error’s impact on the general election will be minimal. In addition to Dennis, the 1st district also includes Brewster and part of Yarmouth.

“This issue only affected one of the three towns [in the district],” said O’Malley. “It only affected one batch of mail. The mistake was caught so quickly that voters received corrected ballots very soon after receiving the first ballot.”

Approximately 700 corrected ballots had been received by last weekend, according to Dennis Town Clerk Theresa Bunce.

O’Malley said there was no danger of multiple ballots from the same person being counted.

“This is obviously something people would be concerned about,” she said. “You may get two ballots, but only one will count —and we have very strict procedures in place to make sure that happens.”

After Wednesday’s decision, Post said her campaign would explore further litigation after the Nov. 8 election if there is reason to believe that the ballots had swayed the election results.

“If it comes down to these particular votes, we’ll have to look at it at that time,” she said.

Flanagan said the issue had become a distraction from the real campaign issues.

“[This race] is about who is going to be able to deliver resources back to the district, to address our quality-of-life issues,” he said. “I believe that people are voting for the person who will be able to deliver that for them.”

Post, Flanagan, and Kasparian are running to replace Republican incumbent Timothy R. Whelan, who is not seeking re-election. Whelan is the Republican candidate for Barnstable County Sheriff, who is running against Democrat Donna Buckley on Nov. 8.

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This story has been updated.


Camilo Fonseca can be reached at camilo.fonseca@globe.com. Follow him on Twitter @fonseca_esq.