Justice Department sues Vermont Secretary of State’s Office over late mailing of absentee ballots

"Secretary of State Jim Condos is finishing up his "Vermont Transparency Tour" this fall before the Legislature reviews exemptions to the public records law in January. VTD/Josh Larkin"

Secretary of State Jim Condos. VTD File Photo/Josh Larkin

The U.S. Justice Department is suing the Vermont Secretary of State’s Office for failing to send more than 20 percent of absentee ballots to military service members, their families and U.S. citizens living overseas by the federal deadline. Overseas ballots must be sent within 45 days prior to an election.

The federal agency is seeking a 10-day extension for all absentee ballots to be counted in Vermont, effectively extending the deadline for the vote count to Nov. 16 and the official certification of votes in the General Election until Nov. 23.

In the lawsuit filed with the U.S. District Court in Burlington on Thursday, the Department of Justice says about 191 ballots were not sent out until after the deadline on Sept. 22. The majority of the ballots were sent by email and mail on Sept. 24 and 25. By Sept. 28, 182 ballots has been transmitted. A few were sent as late as October.

Thomas E. Perez, assistant attorney general for the Civil Rights Division of the Justice Department, said in a statement: “Our armed forces, their families and overseas citizens deserve a meaningful opportunity to fully participate in our nation’s elections. We are filing this lawsuit to ensure that Vermont’s military and overseas voters will be provided the full 45 days guaranteed by UOCAVA [Uniformed and Overseas Citizens Absentee Voting Act] to receive, mark and return their ballots in the upcoming November general election.”

The trouble started after the primary election on Aug. 28 when there were anomalies associated with the vote count for write-in candidate Annette Smith in the Progressive Party’s gubernatorial contest. The Vermont Secretary of State’s office acknowledged that some ballots had not been properly counted in several towns, including Hardwick and Walden. A recount was called and a court-ordered certification of the vote was formalized on Sept. 18. At that point, the Secretary of State’s Office had a short timeframe in which to finalize the General Election ballot and deliver the ballots electronically to municipal officials.

The Justice Department says the Secretary of State’s office didn’t issue the General Election ballot via email in PDF format until late on Sept. 20, a Thursday. The case alleges that the Director of Elections Kathy Scheele was aware that many town clerks’ offices are closed on Fridays and Saturdays.

Secretary of State Jim Condos doesn’t dispute the facts of the case. In all, 196 ballots out of a total of 894 were not sent out in time, he said. Of that total, more than 100 were sent by Sept. 25.

Condos, however, disagrees with the Justice Department’s decision to sue. He said the department issued a warning letter to the state Oct. 5. During negotiations on Wednesday, when Condos asked what other options they could discuss, he said the response was silence. The case was filed the next day.

“The Secretary of State’s Office did its job, it got the ballots to the town clerks,” Condos said. “I’m not throwing the town clerks under the bus. Not every town clerk works five days a week. Some may not have been in the office to receive the email.”

Sandra Pinsonault, the Dorset town clerk and head of the Vermont Municipal Clerks and Treasurers Association, said that some clerks were not in the office on that Friday, many of the clerks who sent out ballots late had difficulty with the Secretary of State’s web email portal (there were glitches with dates and valid email addresses). In some cases, military emails bounced back.

Under Vermont statutes, it is local town and city clerks — not the Vermont Secretary of State — that bear the responsibility for running elections, according to Meghan Shafritz, an assistant Vermont attorney general and chief of the civil division. “The Secretary of State doesn’t have authority to do anything,” Shafritz says.

“The Department of Justice is asking the federal judge to override Vermont’s election statutes … that’s out of proportion with the few cases the DOJ has identified,” Shafritz said. “In any event, we’re confident that all Vermonters that are overseas or in the military will receive ballots in time to vote and return them by the election deadline. We don’t even know yet if there will be any late ballots because that time period hasn’t come yet.”

Sandra Pinsonault, the Dorset town clerk and head of the Vermont Municipal Clerks and Treasurers Association, said that some clerks were not in the office on that Friday, many of the clerks who sent out ballots late had difficulty with the Secretary of State’s web email portal (there were glitches with dates and valid email addresses). In some cases, military emails bounced back.

“There is a lot more to the DOJ needs to look into rather than putting blame on clerks of Vermont,” Pinsonault said. “We do the best we can, we’re all human.”

Pinsonault said anyone who received an overseas absentee ballot by email received it in plenty of time to return it to town clerks in time to be counted on or before Nov. 6.

“I don’t know what the purpose of extending the election [to Nov. 16] would be,” Pinsonault said. “The voter has to take some ownership and responsibility to getting the ballot back in a timely manner. Extending the deadline is another entitlement that we entitle people to. A deadline is a deadline; if you get an email you have plenty of time to get it back. If emailed today Oct. 12, and you put in by Oct. 15, there’s no way I wouldn’t have it by Nov. 6.”

The Justice Department is also seeking Vermont’s court-ordered compliance with the Uniformed and Overseas Citizens Absentee Voting Act in future elections.

The department has requested that the complaint be taken up on Oct. 19. Judge William Sessions will hear the case.


Anne Galloway

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