The legislature will conduct a second recount of ballots in the Orange-1 district to find whether Bob Frenier, left, or Susan Hatch Davis should be seated in the legislature. (Herald File / Bob Eddy)

Vermont Legislature Readies for Second Recount

Submitted 2 years ago
Created by
Tim Calabro

Panel Will Examine Orange-1 Ballots

Three months after Election Day—and after a marathon debate last Wednesday— legislators have begun the work of planning a third count of the ballots in the Orange-1 house district.

In November, a four-way race for two seats in Orange-1, which includes Chelsea, Corinth, Orange, Vershire, Washington, and Williamstown, concluded with the reëlection of Republican incumbent Rodney Graham of Williamstown and the unseating of Progressive incumbent Susan Hatch Davis of Washington.

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Republican Bob Frenier of Chelsea took the second-place finish in that race by just eight votes. Hatch Davis asked for a recount, which was conducted at the Orange County Courthouse in Chelsea. Hatch Davis’s vote total of 1,845 remained the same, while one vote was taken from Frenier after the second count, leaving his total at 1,852.

That result was certified by Judge Timothy Tomasi and then, on appeal, Superior Court Judge Mary Miles Teachout declared Frenier the winner.

Procedure Problems?

Throughout the recount process, Hatch Davis pointed to concerns with the procedures used. These procedures, which the legislature formalized in 2013, when it mandated the use of tabulator machines in recounts, were unsatisfactory, Hatch Davis said.

Through her attorney, Vince Illuzzi (a former Republican legislator), Hatch Davis asserted that some ballots may have been unreadable by the tabulators and that towns used inconsistent standards for determining spoiled or defective ballots.

She also included the charge that “tabulator machines may not have functioned properly,” an accusation that the Secretary of State’s office was quick to counter.

The office’s representative, Will Senning, told VtDigger that allegations of malfunctioning tabulators are unfounded.

“In fact,” Senning said, “I think the facts that we all know in the case tend to show the opposite.”

Hatch Davis filed a petition to the legislature’s Committee on Government Operations at the end of December.

The state’s legislators have the authority under the Vermont Constitution to “judge of the elections and qualifications of their own members.” Because of that power, the ultimate authority to determine a close vote lies with the legislature itself.

Committee Hearing

The Government Operations committee, chaired by Rep. Maida Townsend (D, Chittenden-7-4), heard testimony from representatives for Hatch Davis and Frenier, as well as from town clerks from each of the towns in the Orange-1 district.

In responding to the petition, Frenier and his attorney, Thomas Koch, countered that the recount was conducted in accordance with Vermont statutes and that Hatch Davis had not offered, either to the courts or to the Committee on Government Operations, any evidence to suspect a different outcome from that vote.

After a little more than a week of testimony, the committee approved a resolution recommending that a panel of 23 legislators perform a recount of the Orange-1 ballots.

Marathon Debate

The legislature took up the resolution on Wednesday, Feb. 1 at around 1:30 and didn’t adjourn for the day until nearly 7:30 p.m.

H.R.8 had passed the Government Operations committee in a party-line vote of 7-4, with the committee’s four Republicans in opposition to the recount.

On the floor, discussion was just as divided.

The House GOP caucus comprises 53 members, of which 51 would be needed to prevent the legislature from overriding a gubernatorial veto. Losing Frenier would make that contingency one much-needed vote harder.

Republicans argued that without an extraordinary reason, or at least some evidence of impropriety, it would be improper for the legislature to intervene in a matter that election officials had already resolved.

Democrats and Progressives countered that a recount would be necessary to restore faith in the election process after a divisive election.

An amendment presented by Rep. Sandy Haas (P, Windsor-Rutland) would have allowed the legislature’s panel to examine ballots that had been previously designated as spoiled or defective. That amendment was turned down in a 125-11 roll-call vote.

Rep. Frenier, who was sworn in at the beginning of the legislative session, abstained from voting throughout the debate, as is required under the General Assembly’s rules in cases where an issue has a direct impact on one of the body’s members.

Fellow Orange-1 legislator Republican Rodney Graham noted that in 2010 he lost a close election to Hatch Davis by four votes.

“The comment from former Rep. Davis,” he said, “was that recounts are a waste of time and money.”

As the rhetoric became heated, House Speaker Mitzi Johnson cautioned members.

“I would warn all members,” she said, “that we are all here to serve because we value our state and because we want to do what is right for Vermont.”

Though the legislature has authority under the Vermont Constitution to perform a recount, there are no rules in place for undertaking such a task. Though the General Assembly has conducted recounts in the past, the most recent one was done in 1985.

How To Do It

An amendment proposed by Rep. Anne Donahue (R, Washington-1) asked that the Committee on Government Operations bring its proposed procedures to the House floor for approval before carrying out the recount. That amendment was affirmed in a voice vote.

Rep. David Ainsworth (R, Windsor Orange-1) later proposed an amendment that asked the Speaker of the House to chair the recount panel and also directed the panel to conduct the recount in accordance with current statutory procedures.

The House turned down Ainsworth’s amendment.

After a cumulative five hours of debate, the resolution was brought to a roll-call vote and was adopted 76-59. The results largely split down party lines, though Frenier’s camp gathered plenty of support from White River Valley legislators.

Reps. Ainsworth and Graham, along with Reps. Timothy Briglin (D, Windsor-Orange-2), Jay Hooper (D, Orange-Washington-Addison), Ben Jickling (I, Orange-Washington Addison), and Jim Masland (D, Windsor-Orange-2) voted against the resolution.

Reps. Haas and Susan Buckholz (D, Windsor-4-1) voted in favor of it.

A subgroup of the Committee on Government Operations convenes today, Thursday, to begin organizing procedures for the upcoming recount, which should commence in the next few weeks.

According to a memo from the state’s Joint Fiscal Office, the new recount is expected to cost between $1,290-$3,790, depending on availability of secure housing for the ballots for the duration of the recount and transportation costs associated with bringing the ballots to Montpelier.

Another Close Race

The dispute between Hatch Davis and Frenier was not the only hotly-contested race in this year’s election.

David Ainsworth, a Republican from Royalton, narrowly claimed the Windsor-Orange-1 seat in the House after two recounts reversed a three-vote margin that had put Democratic incumbent Sarah Buxton three votes ahead on Election Day.

An initial recount in that election left the two candidates with a tie. Both Ainsworth and Buxton agreed before a second recount that ballots would be examined before passing them through tabulator machines. Several “transfer” ballots were made when existing ballots were unreadable by the tabulator.

That second recount confirmed that Tunbridge’s initial hand-count had been correct and found six additional votes in Royalton, which used a tabulator on Election Day.

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