By Andy Metzger
State House News Service
BOSTON -- Republican gubernatorial candidate Mark Fisher's ballot access lawsuit against his own party will go to trial June 18, according to a Wednesday ruling.
Frontrunning Republican candidate Charlie Baker received a sizable majority of the delegate vote at the GOP's March convention and, according to party officials, securing the party's endorsement and bouncing Fisher from the September ballot.
In the court ruling, Suffolk Superior Court Judge Douglas Wilkins said the facts alleged in Fisher's lawsuit indicate the party did not follow proper procedures when it determined Fisher had not received the 15 percent of the delegate vote necessary to continue in his campaign.
"No case cited by the parties goes so far as to hold that the constitution entitles party officials to deny a candidate ballot access on such facts - by violating an unambiguous party rule (Rule 6.1) and by arbitrarily changing their interpretation of the rules," Wilkins wrote, denying most of the Massachusetts Republican State Committee's move to dismiss the lawsuit.
He also wrote, "The constitutional rights of association belong to the Party and its delegates - not to party officials who, accepting the allegations of the complaint, acted contrary to unambiguous Party Rules and in an arbitrary and capricious manner."
The suit will go forward in two stages, first determining whether to overturn the party's ruling that Fisher is ineligible for the primary ballot, and in a second phase considering damages.
Fisher cheered the ruling, but said he was a reluctant litigant against his own party.
"We're elated. This is great. It's sad that it had to come to this point, but this is what we need to do," Fisher told the News Service. He said, "Who wants to do this? I don't want to do it. I felt my hands were tied by the party... The party's forced my hand."
Baker said he hopes for a fair resolution.
"Charlie is proud to have received the endorsement from more than 82% of convention delegates. He knows that Mark Fisher and his supporters worked tirelessly, and having himself come up just short in an election, Charlie understands the disappointment and the frustration," Baker spokesman Tim Buckley said in a statement. "He hopes this gets resolved fairly and if that means a primary then he welcomes it."
The ballot-access trial will start the Wednesday after the Democratic Party's nominating convention in Worcester where five gubernatorial candidates will try to lock down enough delegate votes to stay in the race. The prospect of two phases of the trial playing out in the later stages of the primary campaign season could complicate both strategy and messaging for the party and for Baker, who was the nominee in 2010 and is running a campaign based on affability and know-how.
A first-time candidate for public office who has gained some notoriety since he filed the lawsuit against the MassGOP, Fisher is a more ideological Tea Party candidate than Baker. The owner of a metal manufacturing operation in Auburn near his home in Shrewsbury, Fisher distributed bags of tea in branded foil wrappers at the convention.
"We are confident this process will result in a fair outcome that respects the rules of the convention that Mr. Fisher agreed to and will continue to focus on the most important issue at hand, electing Republicans at every level of government to bring balance and a new direction to Massachusetts," MassGOP Chairwoman Kirsten Hughes said in a statement.
A 2010 appointee of Gov. Deval Patrick, Wilkins said the case should be reviewed by appellate courts - especially on the questions of how blank votes are treated and whether the courts can intervene in the party matter - but wrote "time is exceedingly short" so the case should not be paused to allow the higher courts to weigh in.
The case hinges on the March 22 convention vote, which counted blank votes towards the balance that barred Fisher from the ballot.
The unofficial roll call gave Fisher 15.15 percent of the vote, according to the complaint, which said the initial results included 10 blank ballots. Fisher asserts that two Baker supporters took several tally sheets into a closed room prior to or during the voting, without a Fisher representative present. When the final tally was read - after the convention was over - Fisher had 14.77 percent with 2.52 percent recorded as blanks. On that second count, the number of blanks increased to 64 ballots.
The convention rules rely on Robert's Rules of Order, which say "ignore blank ballots and other ballots that indicate no preference, treating them as abstentions," Wilkins wrote in a discussion of the case, which found the convention vote should not include blanks.
"As everyone knew, this two-candidate contest was a zero sum game. In that context, casting a blank for the purpose of eliminating Fisher's candidacy makes little sense," Wilkins wrote. Fisher's camp alleges that Robert Cunningham, the party executive director, told Fisher campaign manager Deborah McCarthy and attorney Spencer Kimball that blanks would not be counted.
Wilkins allowed the dismissal of two of the charges made by Fisher, alleging negligence and civil rights violations. The judge's order also states that knowingly falsifying ballot results is illegal, with a punishment of up to six months incarceration.
"This would be criminal," said Fisher, who said he has been trying to learn why more blank ballots appeared in the final tally than in the initial count.
Fisher said he would likely seek an earlier ruling to place his name on the ballot after his petition signatures are certified by the secretary of state, and said he is unsure whether he will testify at his trial saying, "I think there's other people with eyewitness testimony."
The party has until May 2 to answer Fisher's complaint. The judge's interpretation of Fisher's account appears to lean in favor of the longshot candidate, barring any factual dispute.
"The complaint's allegations, if true, show that the Rules mandate excluding blanks from the vote count, that Fisher received 15% of the convention vote and that the Convention adjourned before the actions of party officials even came to light," Wilkins wrote.