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Judge rules that two tied in House race

Orders new vote but extent unclear

Democrat Geraldo Alicea and Republican Peter J. Durant got 6,587 votes each. Democrat Geraldo Alicea and Republican Peter J. Durant got 6,587 votes each.
By Michael Levenson
Globe Staff / February 2, 2011

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A Worcester Superior Court judge ruled yesterday that a hotly contested election for state representative in Central Massachusetts is a tie, an exceedingly rare result, and ordered a new election.

After scrutinizing competing claims about absentee ballots, rejected ballots, and election irregularities, the judge, Richard T. Tucker, ruled that one absentee ballot that was initially discarded can be counted for Geraldo Alicea, the Democratic incumbent. That finding puts Alicea into an exact tie with his Republican challenger, Peter J. Durant.

Durant was initially declared the winner of the Nov. 2 election, with 6,587 votes to 6,586 for Alicea.

But Tucker ruled that the disputed absentee vote for Alicea — which had been rejected and placed in an envelope with spoiled ballots because the voter marked two choices for governor — should have been added to Alicea’s tally. The judge said Alicea and Durant both won exactly 6,587 votes in the election, and a new election must be held.

Alicea, second-term representative from Charlton, said he was “very pleased’’ with the ruling and planned to begin voting as a “holdover’’ member of the House until a new election is scheduled. Even though he has not been sworn in, he said he believes that the state Constitution allows him to remain in his seat.

Durant, who is currently a selectman from Spencer, could not be reached. But his lawyer, Frank L. McNamara Jr., said he had not yet discussed an appeal with his client.

“I’m disappointed because I wanted Peter to win, but the result is not unexpected given the evidence,’’ McNamara said. After hearing testimony from a local election official who handled the disputed absentee ballot, “It was pretty clear that that was going to be counted as a vote for Alicea, thus tying the vote,’’ McNamara said. “But it was a fight worth fighting.’’

The judge did not set a date for a new election, or say whether it would be open to new candidates, or only be a runoff between Alicea and Durant.

Representative Michael T. Moran, a Boston Democrat who co-chairs the Legislature’s Election Laws Committee, said the judge’s ruling would now be reviewed by a special House committee of two Democrats and one Republican.

The committee will make a recommendation about next steps to House Speaker Robert A. DeLeo, he said. “The strongest option is to have a reelection,’’ Moran said. “But you have to look at everything.’’

“It’s fair to say this is extremely, extremely rare, and it poses a whole set of different issues and problems,’’ Moran said.

Secretary of State William F. Galvin, the state’s top elections official, said he may recommend that a new election be ordered for May 10. Galvin said he did not know of any precedent that would allow for a runoff between Alicea and Durant, suggesting a wide-open contest would be held.

Michael Levenson can be reached at mlevenson@globe.com.