Letter by Fisher’s Attorney, Thomas Harvey, to MassGOP Was Revealed in Open Court

Readers please note that the MassGOP chose to keep this letter secret from the 80-Member State Committee….  It was revealed in open court.    

April 13, 2014

General Counsel

Massachusetts Republican State Committee

85 Merrimac Street – Suit 400

Boston, MA 02114

Re: Fisher v. Mass. Republican Party et al

Suffolk Superior Court C.A.14-1072A

Dear General Counsel:

I represent Mark Fisher in the above referenced lawsuit against the Massachusetts Republican State Committee, Chairman Kirsten Hughes and Executive Director Robert Cunningham. This concerns what occurred at the Massachusetts Republican State Convention on March 22, 2014. I send this letter to you via the Defendants’ attorney and in compliance with Rule 9.3 of the Rules of the 2014 Massachusetts Republican State Convention.

Rule 9.3 provides as follows: “Legal Issues. Any legal issues arising in connection with the Convention shall be referred to the General Counsel of the State Committee.”

From Mr. Fisher’s perspective, there are multiple legal issues that arose at the Convention. In this regard, I enclose three affidavits for your review which have been filed with the court. These are: Affidavit of Spencer Kimball, Second Affidavit of Spencer Kimball, and Affidavit of Deborah McCarthy.

The first legal issue is whether it was appropriate to include blanks in the final vote count. Mr. Fisher’s representatives were told by Mr. Cunningham on the day prior to the convention that they would not be counted.

Convention Rule 11 states: “The Party Chair shall determine the method and order of voting for each vote or election during the Convention.” The Defendants might argue that Rule 11 could be interpreted to mean that Ms. Hughes, the Party Chair, determined whether blanks were to be included in the final vote count. That would seem to be a stretch of an interpretation. Whether blanks were to be included in the final vote count can hardly be considered part of the “method and order of voting.” Regardless, Ms. Hughes was quoted by the news media as saying that blanks do not get counted.

Subsequent to the convention, State Committee Member Steven Zykofsky, the Chairman of the Rules Committee, who developed the Convention Rules, also stated unequivocally to the news media that blanks should not have been counted in the final tally of votes in determining whether a candidate received 15% of the votes.

Yet, 64 blanks were counted in the final vote count. Because of them, Mr. Fisher was prevented from obtaining the 15% Convention vote which would have permitted him, pursuant to Rule 6.1, to have his name on the gubernatorial Republican primary ballot in September.

Mr. Fisher’s position is that the blanks should not have been counted in the final vote. Mr. Fisher’s representative, Spencer Kimball, made numerous timely objections to the appropriate authorities at the Convention in this regard.

The Convention Rules are silent on the issue of the blanks. But Rule 23 provides, in part: “Parliamentary Authority. The parliamentary authority for the Convention in any and all matters not covered by these Rules shall be the most recent edition of Robert’s Rules of Order.”

In the Robert’s Rules of Order section on voting, Article VIII, section 46, states in part:

“When a quorum is present, a majority vote, that is a majority of the votes cast, ignoring blanks, is sufficient for the adoption of the motion……;” “All blanks are ignored as simply waste paper, and are not reported….;” “In reporting the number of votes cast and the number necessary for election, all votes except blanks must be counted.” Moreover, nowhere in Robert’s Rules of Order does it say that there are occasions when blanks should be counted toward the total vote.

The reference to Roberts Rules of Order would seem to resolve the issue. Blanks should not have been counted.

And Convention Rule 17 would appear to provide additional evidence that blanks should not have been counted. That rule states: “Disqualified Votes. A vote cast for any ineligible candidate or for any candidate who was not nominated and seconded in accordance with these Rules, or for any candidate who is removed from further consideration in accordance with these Rules, shall not be considered as a vote cast by a delegate present and voting, and shall not be included in determining the whole number of votes cast for any purpose of these Rules.”

Rule 17 shows that when a voter indicates no intent to vote for an eligible candidate, then that vote is not to be used in determining the whole number of votes cast. It follows that

voting “blank,” which similarly indicates no intent to vote for an eligible candidate, should also not be used in determining the whole number of votes cast.

The second legal issue regards whether blank votes were improperly counted for those delegates who were not present at the time of the voting. The roll call vote, broadcast throughout the Convention hall, showed that there were 2,095 votes for Charlie Baker, 376 votes for Mark Fisher and 10 blank votes.

Subsequently, in the back room, where the tally sheets were being reviewed, it became evident that two different districts had mistakenly included blank votes for delegates who had not been present at the Convention. In the first instance, one tally sheet stated right on it that the blanks were for those who were not present. In the second instance, State Representative Vincent DeMacedo stated that he included blank votes for delegates who were not present because he thought that was what was supposed to be done. Rule 11 states, in part, “There shall be no voting by proxy…” and both Rule 16 and Rule 17 refer to delegates “present and voting.” The parliamentarian properly excluded those blanks as votes at Mr. Kimball’s request and over Attorney Vincent DeVito’s objections. But, among all the tally sheets, those were the only ones that Kimball was ever permitted to see.

Those incidents were red flags indicating that there was some confusion among district representatives about the proper accounting of blanks. Accordingly, Republican officials overseeing the election should have been wary of additional problems in that regard. Yet, when the final counting of the tally sheets showed that Baker received 2,095 votes, Fisher received 374 votes, and there were 64 blanks – 54 more blanks than was stated in the roll call vote – alarm bells should have gone off. Monitors, and possibly delegates, should have been called in and questioned regarding the blanks. Certainly, despite Mr. DeVito’s objections, Mr. Kimball’s reasonable request to see the paperwork which was the source of the 54 additional blank votes should have been honored. But it was not. The vote was not by secret ballot so there is no apparent reason why Mr. Kimball’s request was denied.

Fisher’s position is that, under the circumstances, the Republican State Committee officials overseeing the election should have allowed Kimball to inspect the documentation that was the source of the 54 additional blank votes.

The third legal issue concerns Kimball’s request for a re-count or reconsideration. At the time he was first informed of the final vote count, which showed that there were 54 more blanks than there were in the roll call vote, the convention had already closed. When he then asked for a re-count or reconsideration, the parliamentarian denied his request, stating that a recount or reconsideration required a 2/3 vote of the delegates present and that was impossible because the convention had already closed.

Rule 21 provides, in part: “No vote shall be reconsidered during the Convention except after the affirmative vote of two-thirds (2/3) of the delegates present and voting upon a motion for reconsideration of the vote.” Kimball was not provided the opportunity to have the Convention consider his request for a recount because when he was told of the final vote count, the Convention had already closed.

The Republican State Committee’s closing of the convention before informing Kimball, Fisher’s representative, of the vote total, and thus effectively preventing him from seeking a reconsideration of the vote, was a violation of the Convention Rules.

The fourth legal issue regards chain of custody. According to Debora McCarthy’s affidavit, tally sheets were taken off the convention floor during the voting. Mr. Kimball registered timely objections regarding this and requested that another vote be taken from that district. His reasonable request was denied.

The fifth issue pertains to the activities of Attorney Vincent DeVito at the Convention and whether they were legal. He was sitting on stage during the Convention and during Fisher’s speech and appeared to be a neutral Republican Party official. It was known that he was General Counsel of the Republican State Committee and may have still been so on the day of the Convention. Yet later that day, in the back room, he was making objections on behalf of the Charlie Baker campaign.

Mr. DeVito is now an employee of the Baker campaign and perhaps he was so on the day of the Convention. It is true that Mr. DeVito announced himself as a Baker representative when he first entered the back room, but an investigation should be undertaken regarding his conduct. Was he earlier involved in making any legal rulings? Did he participate in transferring the tally sheets to the back room? When was he first hired by the Baker campaign? Was he a paid employee of the Baker campaign on the day of the Convention?

A sixth legal issue concerns the timing of the Republican State Committee’s decision to use blanks in the final count. If the Executive Director thought they would not be used in the final vote tally, and if the Chairman thought they would not be used, then who made the decision to count them? And when was that decision made? And what was the authority for that decision? Was Mr. DeVito, as an official of the Massachusetts State Republican Party, involved in that decision? Or, was he involved in that decision as an employee of the Baker campaign? An investigation should be conducted in this regard.

In sum, Mr. Fisher’s position is as follows:

1. The vote was invalid because blanks were included in the total vote count when they should not have been. There was no rule that authorized it and Robert’s Rules of Order prohibits it. The State Committee did not follow its own rules.

2. The vote was invalid because delegates who were not present were counted as blanks. That would account for the huge differential between the roll call vote and the count from the final review. By counting as blank votes those delegates who were not present at the convention, the State Committee again did not follow its own rules.

3. The vote was invalid because the Fisher was effectively deprived of his right under Convention Rule to seek a reconsideration of the vote under Rule 21. This was yet another instance of the State Committee not following its own rules.

4. The vote was invalid because proper chain of custody procedures were violated.

5. The vote was invalid because of Attorney DeVito’s involvement in the process.

6. The vote was invalid because the decision to use blanks in the vote total was not timely announced to Fisher’s representatives and was contrary to what they had been told on the previous day.

Article IX, Section 1, of the Bylaws of the Massachusetts Republican State Committee states: “The State Committee shall have final approval of all matters relating to the conduct of the convention.” Based on that provision, it is clear that the Massachusetts Republican State Committee is authorized to take corrective measures regarding the vote.

In addition, the counting of the votes which, in violation of the Convention Rules, improperly included blanks in the total vote count, was still occurring after the Convention closed. Thus, the counting was not a part of the Convention’s activities. A new count can therefore now be taken without counting the blanks.

Consequently, Mark Fisher requests that you counsel the State Committee that, because of multiple violations of its own rules, and/or because Mr. Fisher did obtain 15% or greater of the Convention vote pursuant to Rule 6.1, it should certify to the Secretary of State’s Office that Mark Fisher is entitled to have his name placed on statewide ballots in a Republican primary election for the office of Governor in September, 2014..

Please advise me, through Defendants’ counsel, of the intentions of the Massachusetts Republican State Committee regarding the issues raised in this letter. Thank you.

Very truly yours,

Thomas M. Harvey

About ForTheRecord

Letter by Fisher’s Attorney, Thomas Harvey, to MassGOP Was Revealed in Open Court

Readers please note that the MassGOP chose to keep this letter secret from the 80-Member State Committee….  It was revealed in open court.  

April 13, 2014

General Counsel

Massachusetts Republican State Committee

85 Merrimac Street – Suit 400

Boston, MA 02114

Re: Fisher v. Mass. Republican Party et al

Suffolk Superior Court C.A.14-1072A

Dear General Counsel:

I represent Mark Fisher in the above referenced lawsuit against the Massachusetts Republican State Committee, Chairman Kirsten Hughes and Executive Director Robert Cunningham. This concerns what occurred at the Massachusetts Republican State Convention on March 22, 2014. I send this letter to you via the Defendants’ attorney and in compliance with Rule 9.3 of the Rules of the 2014 Massachusetts Republican State Convention.

Rule 9.3 provides as follows: “Legal Issues. Any legal issues arising in connection with the Convention shall be referred to the General Counsel of the State Committee.”

From Mr. Fisher’s perspective, there are multiple legal issues that arose at the Convention. In this regard, I enclose three affidavits for your review which have been filed with the court. These are: Affidavit of Spencer Kimball, Second Affidavit of Spencer Kimball, and Affidavit of Deborah McCarthy.

The first legal issue is whether it was appropriate to include blanks in the final vote count. Mr. Fisher’s representatives were told by Mr. Cunningham on the day prior to the convention that they would not be counted.

Convention Rule 11 states: “The Party Chair shall determine the method and order of voting for each vote or election during the Convention.” The Defendants might argue that Rule 11 could be interpreted to mean that Ms. Hughes, the Party Chair, determined whether blanks were to be included in the final vote count. That would seem to be a stretch of an interpretation. Whether blanks were to be included in the final vote count can hardly be considered part of the “method and order of voting.” Regardless, Ms. Hughes was quoted by the news media as saying that blanks do not get counted.

Subsequent to the convention, State Committee Member Steven Zykofsky, the Chairman of the Rules Committee, who developed the Convention Rules, also stated unequivocally to the news media that blanks should not have been counted in the final tally of votes in determining whether a candidate received 15% of the votes.

Yet, 64 blanks were counted in the final vote count. Because of them, Mr. Fisher was prevented from obtaining the 15% Convention vote which would have permitted him, pursuant to Rule 6.1, to have his name on the gubernatorial Republican primary ballot in September.

Mr. Fisher’s position is that the blanks should not have been counted in the final vote. Mr. Fisher’s representative, Spencer Kimball, made numerous timely objections to the appropriate authorities at the Convention in this regard.

The Convention Rules are silent on the issue of the blanks. But Rule 23 provides, in part: “Parliamentary Authority. The parliamentary authority for the Convention in any and all matters not covered by these Rules shall be the most recent edition of Robert’s Rules of Order.”

In the Robert’s Rules of Order section on voting, Article VIII, section 46, states in part:

“When a quorum is present, a majority vote, that is a majority of the votes cast, ignoring blanks, is sufficient for the adoption of the motion……;” “All blanks are ignored as simply waste paper, and are not reported….;” “In reporting the number of votes cast and the number necessary for election, all votes except blanks must be counted.” Moreover, nowhere in Robert’s Rules of Order does it say that there are occasions when blanks should be counted toward the total vote.

The reference to Roberts Rules of Order would seem to resolve the issue. Blanks should not have been counted.

And Convention Rule 17 would appear to provide additional evidence that blanks should not have been counted. That rule states: “Disqualified Votes. A vote cast for any ineligible candidate or for any candidate who was not nominated and seconded in accordance with these Rules, or for any candidate who is removed from further consideration in accordance with these Rules, shall not be considered as a vote cast by a delegate present and voting, and shall not be included in determining the whole number of votes cast for any purpose of these Rules.”

Rule 17 shows that when a voter indicates no intent to vote for an eligible candidate, then that vote is not to be used in determining the whole number of votes cast. It follows that

voting “blank,” which similarly indicates no intent to vote for an eligible candidate, should also not be used in determining the whole number of votes cast.

The second legal issue regards whether blank votes were improperly counted for those delegates who were not present at the time of the voting. The roll call vote, broadcast throughout the Convention hall, showed that there were 2,095 votes for Charlie Baker, 376 votes for Mark Fisher and 10 blank votes.

Subsequently, in the back room, where the tally sheets were being reviewed, it became evident that two different districts had mistakenly included blank votes for delegates who had not been present at the Convention. In the first instance, one tally sheet stated right on it that the blanks were for those who were not present. In the second instance, State Representative Vincent DeMacedo stated that he included blank votes for delegates who were not present because he thought that was what was supposed to be done. Rule 11 states, in part, “There shall be no voting by proxy…” and both Rule 16 and Rule 17 refer to delegates “present and voting.” The parliamentarian properly excluded those blanks as votes at Mr. Kimball’s request and over Attorney Vincent DeVito’s objections. But, among all the tally sheets, those were the only ones that Kimball was ever permitted to see.

Those incidents were red flags indicating that there was some confusion among district representatives about the proper accounting of blanks. Accordingly, Republican officials overseeing the election should have been wary of additional problems in that regard. Yet, when the final counting of the tally sheets showed that Baker received 2,095 votes, Fisher received 374 votes, and there were 64 blanks – 54 more blanks than was stated in the roll call vote – alarm bells should have gone off. Monitors, and possibly delegates, should have been called in and questioned regarding the blanks. Certainly, despite Mr. DeVito’s objections, Mr. Kimball’s reasonable request to see the paperwork which was the source of the 54 additional blank votes should have been honored. But it was not. The vote was not by secret ballot so there is no apparent reason why Mr. Kimball’s request was denied.

Fisher’s position is that, under the circumstances, the Republican State Committee officials overseeing the election should have allowed Kimball to inspect the documentation that was the source of the 54 additional blank votes.

The third legal issue concerns Kimball’s request for a re-count or reconsideration. At the time he was first informed of the final vote count, which showed that there were 54 more blanks than there were in the roll call vote, the convention had already closed. When he then asked for a re-count or reconsideration, the parliamentarian denied his request, stating that a recount or reconsideration required a 2/3 vote of the delegates present and that was impossible because the convention had already closed.

Rule 21 provides, in part: “No vote shall be reconsidered during the Convention except after the affirmative vote of two-thirds (2/3) of the delegates present and voting upon a motion for reconsideration of the vote.” Kimball was not provided the opportunity to have the Convention consider his request for a recount because when he was told of the final vote count, the Convention had already closed.

The Republican State Committee’s closing of the convention before informing Kimball, Fisher’s representative, of the vote total, and thus effectively preventing him from seeking a reconsideration of the vote, was a violation of the Convention Rules.

The fourth legal issue regards chain of custody. According to Debora McCarthy’s affidavit, tally sheets were taken off the convention floor during the voting. Mr. Kimball registered timely objections regarding this and requested that another vote be taken from that district. His reasonable request was denied.

The fifth issue pertains to the activities of Attorney Vincent DeVito at the Convention and whether they were legal. He was sitting on stage during the Convention and during Fisher’s speech and appeared to be a neutral Republican Party official. It was known that he was General Counsel of the Republican State Committee and may have still been so on the day of the Convention. Yet later that day, in the back room, he was making objections on behalf of the Charlie Baker campaign.

Mr. DeVito is now an employee of the Baker campaign and perhaps he was so on the day of the Convention. It is true that Mr. DeVito announced himself as a Baker representative when he first entered the back room, but an investigation should be undertaken regarding his conduct. Was he earlier involved in making any legal rulings? Did he participate in transferring the tally sheets to the back room? When was he first hired by the Baker campaign? Was he a paid employee of the Baker campaign on the day of the Convention?

A sixth legal issue concerns the timing of the Republican State Committee’s decision to use blanks in the final count. If the Executive Director thought they would not be used in the final vote tally, and if the Chairman thought they would not be used, then who made the decision to count them? And when was that decision made? And what was the authority for that decision? Was Mr. DeVito, as an official of the Massachusetts State Republican Party, involved in that decision? Or, was he involved in that decision as an employee of the Baker campaign? An investigation should be conducted in this regard.

In sum, Mr. Fisher’s position is as follows:

1. The vote was invalid because blanks were included in the total vote count when they should not have been. There was no rule that authorized it and Robert’s Rules of Order prohibits it. The State Committee did not follow its own rules.

2. The vote was invalid because delegates who were not present were counted as blanks. That would account for the huge differential between the roll call vote and the count from the final review. By counting as blank votes those delegates who were not present at the convention, the State Committee again did not follow its own rules.

3. The vote was invalid because the Fisher was effectively deprived of his right under Convention Rule to seek a reconsideration of the vote under Rule 21. This was yet another instance of the State Committee not following its own rules.

4. The vote was invalid because proper chain of custody procedures were violated.

5. The vote was invalid because of Attorney DeVito’s involvement in the process.

6. The vote was invalid because the decision to use blanks in the vote total was not timely announced to Fisher’s representatives and was contrary to what they had been told on the previous day.

Article IX, Section 1, of the Bylaws of the Massachusetts Republican State Committee states: “The State Committee shall have final approval of all matters relating to the conduct of the convention.” Based on that provision, it is clear that the Massachusetts Republican State Committee is authorized to take corrective measures regarding the vote.

In addition, the counting of the votes which, in violation of the Convention Rules, improperly included blanks in the total vote count, was still occurring after the Convention closed. Thus, the counting was not a part of the Convention’s activities. A new count can therefore now be taken without counting the blanks.

Consequently, Mark Fisher requests that you counsel the State Committee that, because of multiple violations of its own rules, and/or because Mr. Fisher did obtain 15% or greater of the Convention vote pursuant to Rule 6.1, it should certify to the Secretary of State’s Office that Mark Fisher is entitled to have his name placed on statewide ballots in a Republican primary election for the office of Governor in September, 2014..

Please advise me, through Defendants’ counsel, of the intentions of the Massachusetts Republican State Committee regarding the issues raised in this letter. Thank you.

Very truly yours,

Thomas M. Harvey

Enc.

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