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June 26. 2014 9:49PM

Fergus Cullen: Ruling on Havenstein's eligibility is no slam dunk

When the Ballot Law Commission meets Monday to consider Republican Walt Havenstein’s eligibility to run for governor, the Democratic Party will seek a first round technical knock out that could seal Gov. Maggie Hassan’s reelection.

They probably won’t get that lucky, but one never knows how the BLC will rule. The body has issued inconsistent rulings and contradicted itself in the past.

Its members are drawn from the ranks of seasoned, practical politicians who consider the practical impact of its decisions as much as the letter of the law.

Historically, the BLC has been hesitant to rule on matters that can be adjudicated by voters. This is especially true in eligibility cases when a ruling making a candidate ineligible would have the effect of deciding an election by leaving one candidate unopposed.

In 1998, a bizarre candidacy came to an abrupt end after former Portsmouth state Rep. Cynthia McGovern filed to run against U.S. Rep. John E. Sununu.

Two decades earlier, McGovern had killed a man, stabbing him to death after intervening in a neighbor’s domestic dispute.

Charges were brought, but there were enough mitigating circumstances that a grand jury refused to indict her. Her candidacy unraveled when McGovern denied having been arrested for assaulting a state trooper during a traffic stop.

Desperate to get rid of her, Democrats arranged for McGovern to “move” to Massachusetts, creating the pretext Secretary of State Bill Gardner needed to remove McGovern from the ballot. This would have had the practical effect of leaving Sununu unopposed — but the BLC allowed Democrats to fill the vacancy with another candidate.

In 2006, the BLC allowed state Rep. Jackie Cilley to switch from running for reelection to the House to running for state Senate.

At issue was a new state law prohibiting candidates from running for incompatible offices, as had happened in 2002 when New Hampton state Rep. Fran Wendelboe filed to run for Congress and, as a backup plan, for state rep in the same election. Again, the BLC’s decision prevented an office from going uncontested.

In 2000, the BLC waived the 7-year residency requirement and allowed Len Foy, who had grown up in New Hampshire, to run for state Senate despite having lived recent years in California. Foy contended he had always intended to return to New Hampshire, and the BLC ruled those good intentions were good enough.

In 2006, using a similar justification, the BLC confirmed Sean Mahoney eligible to run for Executive Council. That same year, the BLC allowed George Cleveland to run against Joe Kenney for state Senate despite ambiguity over whether Cleveland was a Democrat or undeclared at the time of the filing period.

But the BLC hasn’t always found a way to declare candidates eligible. I know this from personal experience, having been kicked off the ballot in 2002 when Democrats challenged my eligibility for office.

A factor that made my case different from Foy’s and Mahoney’s was that I had voted in another state, something addressed by a new state law put in place in response to Foy’s case.

The BLC applied the new law retroactively.And the same year the BLC put Cleveland on the ballot despite questions about whether he met the legal requirement of being enrolled as a Democrat when he filed, the BLC later declared eight candidates for state representative ineligible under similar circumstances.

Two years earlier, the BLC blocked Dick Bosa from the U.S. Senate primary ballot in a case that hinged on whether Portsmouth supervisors of the checklist had met to accept his registration, which he’d made on the last day of the filing period.

Massachusetts Democrats made many of the same arguments New Hampshire Democrats are making today in a 2002 effort to disqualify Mitt Romney from running for governor in the Bay State.

Romney had worked out of state (running the Salt Lake City Olympics), where he benefited from a property tax break received by declaring his Utah home his primary residence. The Massachusetts Ballot Law Commission ruled Romney eligible on the basis of his long-held home in the Boston suburbs. Voters didn’t hold it against Romney. He went on to win the election.

Fergus Cullen, a freelance columnist, is a former chairman of the New Hampshire Republican Party. He can be reached at fergus@ferguscullen.com and followed @FergusCullen.


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