By Renee Worthing
Staff Writer
   When 14 Arundel voters wrote the name “Parker” or “Troy,” on the June 13, 2006 ballot, but failed to mark the indicator box on the ballot, the question of their intent became the point of a legal battle.
   It also fueled a debate about the meaning of the words “may not.”
   Arundel resident Troy Parker, a write-in candidate for the June elections, is appealing his loss for a seat on the Arundel Board of Selectmen.
   Although Parker received more than 250 votes, a number of votes were dismissed because some voters failed to put a check mark in the indicator box next to his name.
   According to court documents filed at Alfred Superior Court, Parker received 256 votes and Incumbent David Lane received 278 votes, earning him the selectman seat, but Parker contends if some of the ballots had been counted, his votes would have outnumbered Lane’s.
   However, in Alfred Superior Court Jan. 4, Lane’s attorney, Richard Hull of Levis & Hull, P.A., based in Biddeford, said it was “confusing just to put ‘Troy’ or ‘Parker’” and said writing a first or last name, even if accompanied by a checkmark, was “not enough indication for whom the vote was cast.”
   “There are other Parkers and Troys,” Hull said. “The vote could have been for anyone. (The name) Parker, alone with a checkmark, should not be counted. It could have been (a vote) for his wife.”
   However, Parker’s attorney, Michael Montembeau of Smith, Elliot, Smith and Garmey based in Saco said Parker was “prominent in a small town.”
   “He knows just about everybody in town,” Montembeau said. “They (voters) wrote Troy because that’s how they know him.”
   But, Arundel’s Town Attorney Leah Rachin of Bergen and Parkinson, based in Kennebunk said whether or not the indicator box was marked should be the determining factor in which votes should be counted.
   Rachin also contended that a voter might have written in Parker’s name, but changed their mind.
   “Marking (the box) is the affirmative act of voting,” she said.
   Hull agreed.
  “People may have told Troy they would write his name on the ballot, but did not follow through (by marking the box to complete the vote),” he said.
   Hull said that scenario was “pure speculation,” but a possibility.
   Alfred Superior Court Judge G. Arthur Brennan said the statute requires the indicator box to be marked because optical scanners used by some municipalities to count ballots do not read names. Optical scanners determine whether the indicator boxes are marked.
   However, Arundel does not use optical scanners. Instead, the ballots are hand-counted by the town clerk.
   Montembeau said changes to the wording in statutory regulations allowed discretion by the town to determine which votes to count. He said the word “shall” included in the 2004 statutory regulations regarding the counting of ballots, was “very clear.” However, in 2006, the statute was revised, replacing the words “shall” and “must” with “may” and “may not,” which caused the interpretation of the law to become muddled.
   The Maine Revised Statues 21-A,Chapter 9, sub-section 2, Article 5, sub-section 696-2-B now reads, “If a voter marks the voter’s ballot in such a manner that it is impossible to determine the voter’s choice, the voter’s vote for the office or question concerned may not be counted.”
   Section D, now reads, “If a voter writes in a name and municipality of residence, or pastes a sticker containing the candidate’s name and municipality of residence in the write-in space pursuant to section 691, but does not mark the write-in indicator, that vote for that office may not be counted.”
   Now the attorneys for Parker and Lane and the town of Arundel, as well Judge Brennan, are trying to determine whether the words “may not” are meant as permissive or obligatory language.
   However, the Maine Revised Statues 21-A, chapter 1, subchapter 1, subsection 7, dedicates a paragraph to the use of the words –“When used in this Title, the words “shall” and “must” are used in a mandatory sense to impose an obligation to act or refrain from acting in the manner specified by the context. The word “may,” when used in this Title, is used in a permissive sense to grant authority or permission, but not to create duty, to act in the manner specified by the context. When used in this Title, the term “may not” indicates a lack of authority or permission to act or refrain from acting in the manner specified by the context, whereas the term “shall not” indicates a duty to refraim (sic) from action or omission in the manner specified by the context.”
   Judge Brennan said he hoped to have a decision on the case by the end of the month.
   Following the hearing, Parker said the court hearing was a “long time coming.”
   He said he was upset the court took so long to hear the case.
   “If the case is overturned in my favor, what happens with the term?” he asked. “Some major decisions were made in town. My vote (as a selectman) may have differed from David’s.”
   Lane said he was looking forward to the judge’s decision.
   “People voted for me. That was their intent,” he said.
    Contact Renee Worthing by calling 282-4337, ext. 240 or email news@intheregister.com.