Arguing about the makeup of the Nov. 7 general election ballot, lawyers appeared before a superior court judge yesterday to debate the alphabet - or at least contest the merits of two semi-alphabetical ordering systems.

Last month, the state Supreme Court declared that the state's ballots were unconstitutional on two counts because they printed the majority party's column first - giving Republicans a longtime ballot advantage - and because they listed candidates in alphabetical order in those party columns. The state constitution gives everyone an "equal right to be elected," so every candidate has a right to go first on the ballot, the court said.

Secretary of State Bill Gardner designed a replacement ballot that would rotate the party columns throughout the state, giving Republicans, Democrats, and independent or third-party candidates an equal chance to appear in the left column. Gardner also agreed to slightly mix up the alphabetical order.

On Sept. 8, Gardner's office randomly drew the letter K to lead candidate columns. That means in House races with multiple candidates, those whose last names start with K would lead the ballot. After the Ks, the list would return to A-Z. And in races without K candidates, the ballot would start with A as usual.

The candidates who sued the state two years ago - which led to the Supreme Court decision -responded to Gardner's proposed ballot by objecting in superior court. At a hearing yesterday, Paul Twomey, the lawyer for the candidates, said it wasn't enough simply to pick K. To comply with the constitution, he said, the ballot should read K-Z, followed by A-J; without a K candidate, it should skip to the next candidate in alphabetical order - thus, L-Z, A-J and so on -he said.

James Kennedy, a lawyer with the attorney general's office, said Gardner designed his new system to comply with the Supreme Court decision while disrupting the old way as little as possible, for the benefit of voters.

The K-A-B-C-etc. system "would be an easy-to-read ballot for the voters to consider in November,"compared with K-J-L- . . . -A-B-C-etc., Kennedy said. "It is a manageable ballot. It is a comprehensible ballot."

Merrimack County Superior Court Judge Carol Ann Conboy seemed skeptical of Kennedy's argument.

"Do you think the voters would have a more difficult time locating candidates (that way) than if you went K-A-B-C-D?" she asked.

But Conboy refrained from making a decision. Lawmakers have petitioned to reconvene for a rare special session - only the second since they were granted the authority to call their own sessions in 1945 - and will return to Concord on Tuesday to discuss the ballot order.

Lawmakers could ratify Gardner's plan, create an alternative or take no action. Conboy said she would wait until after that special session to make a decision, if necessary. The lawyers are scheduled to return to her court a week from today, on Sept. 28. Gardner said he needs to print the ballots by Oct. 6 to comply with a federal deadline.

Gov. John Lynch, the attorney general's office and top Democratic lawmakers believe the Supreme Court ruling, the constitution and state law give Gardner the authority to design the new ballot for the upcoming election. But Republican leaders in the Legislature said any new ballot system would require lawmaker approval to be constitutional.

Party leaders in the House and Senate have said they plan to ratify Gardner's new ballot Tuesday. A group of conservative Republicans, though, has said it wants to strike any changes and keep the old system; that faction said the court has overstepped its authority.

The court decision considered the power of the primacy effect, the advantage conferred to the top candidates on a ballot. Kennedy argued yesterday that the ballot only needs to give everyone an equal chance to go first. Twomey argued that everyone deserves an equal chance to go at or near the leadoff spot.

Twomey pointed to one of his clients, Democratic Rep. Charles Yeaton of Epsom. Yeaton is running for one of four seats in Merrimack County District 8; Democrats Sue Beauchesne, Carol Brown and Margaret Porter are also on the ticket. Under Gardner's plan, Yeaton would have gone first only if Y was drawn. That means he had a 1-in-26 chance of going first and a 25-in-26 chance of going last. Beauchesne, on the other hand, had a 24-in-26 chance of going first and no chance of going last.

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