A new election has been ordered in the 6th Worcester District for a seat in the state Legislature.

Superior Court Judge Richard T. Tucker ruled today that the disputed outcome of the Nov. 2 election is a tie.



Secretary of State William Galvin said today he hopes to hold the election May 10. In the meantime, state Rep. Geraldo Alicea, D-Charlton, will continue to represent the district, he said tonight.



Spencer Selectman Peter J. Durant, a Republican, led Mr. Alicea by one vote, 6,587 to 6,586, after the election and recounts in Southbridge, Charlton, East Brookfield, and precincts in Spencer and Oxford.



But the judge said a spoiled absentee ballot for which the Southbridge voter intended to mark Mr. Alicea's name was a legal ballot.



However, the judge said he could not conclude another Southbridge voter's intent on a ballot that contains a pin mark for Mr. Durant.



The result of the election is in doubt, the judge wrote. Two rejected ballots were not counted and an eligible voter was not able to vote.



The judge also said he found there was no evidence of election fraud in Southbridge.



“I'm very pleased with the judge's decision, even more that he agreed that the absentee ballot should have been counted,” Mr. Alicea said last night. “It highlights that every vote counts.”



Mr. Durant did not return a message last night.



Only results from Southbridge changed during the Nov. 18 recount. Only that town's results were disputed in court.



“I knew all along there was no fraud, but it's nice to know now that it's out there and it's in print and hopefully it'll appease everyone that there was no wrongdoing,”

Southbridge Town Clerk Madaline I. Daoust said. “We knew all along that we did nothing wrong.”



William A. McDermott Jr., Mr. Alicea's lawyer, sued the Southbridge registrars and the secretary of state, claiming an uncounted absentee ballot should have been counted for Mr. Alicea, and a registered voter was turned away from the polls because he had moved to an address in a different precinct.



The absentee ballot was rejected by the voting machine. The tabulator could not read it, presumably because it contained marks for two candidates for governor and lieutenant governor, the judge said.



None of the markings was totally within the voting ovals, and they appeared to have been made by an unsteady hand or someone with compromised eyesight, Judge Tucker said.



The marking for state representative, however, was the darkest and most cohesive of all the markings, he said.



Also, the Precinct 5 clerk erred by not segregating the absentee ballot in a separate envelope. A police officer could have been requested to override the tabulator's rejection so the ballot could enter the machine and be placed in a separate compartment for manual counting at the end of the night. Instead, the ballot was placed in the spoiled ballot envelope and was never counted in the election night tabulation, the judge said.



In addition, the judge said, it was wrong for an election worker to turn away Angel L. Miranda, the registered Southbridge voter who had moved from 21 Columbus Ave. in Precinct 1, to 9 Twinehurst Place in Precinct 5. Mr. Miranda was listed on the check-in and checkout lists used for the election in Precinct 1.



The judge said Mr. Miranda should have been allowed to vote in the precinct he was registered in, or been given a provisional ballot.



Frank L. McNamara Jr., Mr. Durant's lawyer, said the registrars counted a ballot that appeared to be in Mr. Durant's favor as a blank, and the Nov. 18 recount results were tainted because a bin in which Mr. Alicea picked up two votes only had one seal on it, when the other four bins had two seals. Mr. Durant's lawyer asked the judge to uphold Mr. Durant's apparent four-vote lead from the election.



Regarding the blank vote, the judge said the oval next to Mr. Durant's name appears to have been made by a small Flair-type pen dot. However, because of its difference in size, form and coverage within the oval from the other 10 vote marks, the judge said he could not determine voter intent.



Southbridge's Precinct 5 bin, secured by only one seal, could have been opened enough for a hand to fit inside, Mr. McNamara argued during the trial. When this was attempted at the behest of Ryan J. Witkos, an observer for Mr. Durant, the seal popped or broke open. Before that attempt the seal had been intact.



The judge found that the seal had not been opened before the experiment.



“No evidence exists of any attempt to stuff anything in or extract anything out of the bin for Precinct 5 while the one plastic seal was in place,” the judge said. “I find that such events did not occur. Absent evidence of wrongdoing or outright fraud, elections are not to be overturned despite carelessness or noncompliance with stated procedures.”



“There will be no appeal. It was a hard-fought, well-tried case, and the voters should look forward to a hard-fought, well-run election,” Mr. McNamara said.



Mr. Alicea picked up two of his four recount votes in Precinct 5, going from 367 votes to 369.



The election and recount irregularities Mr. McNamara cited regarding storage and security of ballots after Election Day, and inaccurate reporting of results to the state, did not have an impact on the final vote, the judge said.



“My election workers and my staff do the best to their ability always,” Ms. Daoust said. “That just goes to prove that there was no malice, wrongdoing or fraud, and hopefully this will bring the integrity back to elections — the way it always has been and always will be.



“I take my job seriously and all the workers do as well. There never has been and there never will be any fraud, malice, or stuffing of ballots as we were so accused of doing.”