KONSTANTINA LUKES vs. BOARD OF ELECTION COMMISSIONERS OF WORCESTER & others. [Note 1]

ABRAMS, J. At issue is whether in a city election, G. L. c.43B, s. 17 (1994 ed.), [Note 2] requiring blank spaces for write-in votes, applies to the final ballot under Worcester's home rule charter. The plaintiff, Konstantina Lukes, an elected council-

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lor at-large, brought this action in the nature of mandamus in the Supreme Judicial Court for Suffolk County (single justice session) against the board of election commissioners of Worcester (board) alleging that it erred in its determination that the office of vice-chair of the city council of Worcester was vacant after the 1995 election for mayor and city council. While the parties agree that the plaintiff received thirty-seven write-in votes for the office of mayor, [Note 3] she asserts that under the Worcester city charter she is the duly elected vice-chair. The single justice stayed the election of a vice-chair and reserved and reported the case to this court. For the reasons stated in this opinion, we conclude that the board correctly determined that the office of vice-chair was unfilled after the 1995 election.

The facts of the case are undisputed. In 1985, the citizens of Worcester adopted a home rule charter, modifying their form of local government and establishing an electoral process for their local government officials. [Note 4] The charter outlines a two-step process for the election of city councillors at-large and for mayor. The first step is a preliminary election which narrows the field of candidates for both councillor at-large and mayor down to a pool of twelve candidates. During this preliminary election, voters are provided with the opportunity to submit write-in votes for candidates not listed on the ballot. The second and final step is the final election which, according to the charter, is confined to the twelve candidates receiving the highest number of votes in the preliminary election.

All twelve candidates who survive the preliminary election are considered to be running for both mayor and councillor at-large, although they may withdraw from the mayoral race and run "solely for the office of councillor at large." Art. 2, s. 2-2(b)(2) of the city charter of Worcester. The office of mayor is then awarded to the "candidate elected to the office of councillor at large [who] receiv[es] the highest number of votes for the office of mayor." Art. 2, s. 2-2(b)(1). The office

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of vice-chair is awarded to the "candidate elected to the office of councillor at large [who] receiv[es] the next highest number of votes for the office of mayor." Id.

The plaintiff was listed as one of the twelve candidates who survived the preliminary election for councillor at-large. In a timely manner, she sent a letter to the board which stated, "This letter is to inform you that I plan to run for the position of City Councillor-at-Large only, and not the position of Mayor in the upcoming November election."

Only three of the remaining twelve candidates maintained their eligibility for the office of mayor. At the election, two of these three candidates did not receive enough votes to be elected as a councillor at-large. The other candidate who did gain election to the city council also received the highest number of votes for mayor and was declared mayor.

As directed by the Secretary of the Commonwealth, see G. L. c. 43B, s. 17 (1994 ed.), blank spaces were left on the ballot during the final election. The plaintiff received thirty-seven write-in votes for the office of mayor, despite her withdrawal from that race. No other candidate elected to the city council received more write-in votes for mayor. Based on those write-in votes and her election as a councillor at-large, Lukes claims that she is entitled to the office of vice-chair.

The thrust of the plaintiff's main argument is that State law requires that write-in ballots be counted. See G. L. c. 54, s. 42 (1994 ed.). [Note 5] Worcester's charter does not provide for write-in votes during the final election. Art. 7, s. 7-5. The charter provides for a preliminary election during which the candidates for the final election are chosen. At the preliminary stage, voters are afforded the opportunity to write-in any eligible person that they choose. Art. 7, s. 7-4(c)(2). The

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purpose of this preliminary election is to determine who the candidates will be in the final election. Art. 7, s. 7-4(e). The winning candidates are the only candidates that are eligible for election on the final ballot.

"Our goal in interpreting two or more statutes relating to the same subject matter is to construe them so as to constitute an harmonious whole, consistent with the legislative purpose." Independence Park, Inc. v. Board of Health of Barnstable, 403 Mass. 477, 480 (1988). Atkinson v. Ipswich, 34 Mass. App. Ct. 663 (1993) (granting deference to city charter over statute). [Note 6] "[W]here two provisions are in conflict, if a specific provision . . . is enacted subsequent to a more general rule, the specific and not the general provision applies." Torres v. Fidelity & Guar. Life Ins. Co., 34 Mass. App. Ct. 376, 378 (1993), citing 213 Singer, Sutherland Statutory Construction s. 51.02, at 121 (5th ed. 1992).

The board states that it only put write-in blanks on the ballot because, in its view, the Secretary of the Commonwealth required such blanks. The board's opinion was that blanks for write-in votes should not have been on their final ballot because it would be inconsistent with its charter. We agree with the board that State law requiring blank spaces on all ballots for write-in votes can be overridden by a home rule charter. The Legislature specifically has allowed cities and towns the right to change this aspect of the local election process by a home rule charter.

Worcester's charter does provide voters with an opportunity to select candidates not named on the ballot. That opportunity occurs in the preliminary election. Art. 7, s. 7-4(e). The purpose of this preliminary election is to streamline the number of candidates, a legitimate State goal. See, e.g., Bullock v. Carter, 405 U.S. 134, 145 (1972). Worcester's preliminary election, with the opportunity for write-in votes, eliminates the practicality and necessity of putting blank spaces on the final local ballot. We conclude that,

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under the Worcester charter, there was no requirement to leave blank spaces for write-in votes on the final local ballot.

The plaintiff next argues that, although she withdrew her candidacy for the office of mayor, she never withdrew from becoming vice-chair through the electoral process. There is no merit to this argument. A reading of s. 2-2(b) of the charter reveals that one must run for the office of mayor to be eligible for the position of vice-chair. In relevant part, the section maintains that all candidates for councillor at-large are eligible for the office of mayor, but at their own discretion, a "candidate duly nominated and seeking election solely for the office of councillor at large may withdraw his/her name from nomination to the office of mayor." Art. 2, s. 2-2(b)(2). The wording of the charter states that, by withdrawing one's name from the ballot for mayor, the candidate is seeking election only to the councillor position. The plaintiff therefore made herself ineligible for the office of vice-chair through the electoral process. [Note 7]

The matter is remanded to the single justice session where an order vacating the stay and judgment consistent with this opinion are to enter.

So ordered.