Courts & Corrections

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.

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Anne Galloway

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  • Charles Merriman

    This suit is absurd–the Justice Department has no business suing Vermont for the Secretary of State’s supposed failure. The truth of the matter is this: the states, not the federal government, have primary jurisdiction over election laws. The federal government instituted the 45 day rule in 2009 because a federally run bureaucracy, the Military Post Office, was failing to get ballots to overseas service people in time. Instead of fixing its own bureaucratic problem, the federal government encroached upon an important states right. Jim Condos, please consider counter-suing on the grounds that the law is unconstitutional. I’d glad to help, if you want.

  • Eric Davis

    The State Canvassing Board met on Thursday, September 6 to certify the final primary results. Those results showed that Annette Smith was close enough to Martha Abbott to be eligible to request a recount of the Progressive ballots for governor.

    Vermont election law requires a five-day waiting period between the date of the canvassing committee meeting and the start of a recount. This waiting period can be waived if all the political parties represented on the Canvassing Board agree. On September 6, the Democrats and Progressives agreed to waive the waiting period. The Republicans, represented by their party chair Jack Lindley, who made an angry rant against the Secretary of State’s office (an office for which his party failed to recruit a candidate, allowing Jim Condos to win the GOP nomination on write-in votes), refused to grant the waiver.

    The recount results were certified in Washington County Superior Court on Tuesday, September 18, three days before the federal deadline for getting the ballots to the town clerks. If the Republicans had agreed to waive the waiting period, the recount results would have been certified sometime during the week of September 10-14, allowing at least a week to get the ballots to the town clerks.

    The Republicans, both here in Vermont and in other states such as Massachusetts, complain that Democratic Secretaries of State are foot-dragging on getting ballots to overseas military voters. Yet here in Vermont, it was Republican delaying tactics that prevented the recount from getting started in time to allow for distribution of the ballots to town clerks well in advance of the federal deadline.

    If Assistant AG Perez and his staff had read accounts of Lindley’s actions at the Canvassing Board meeting on Vermont news or politically-oriented Web sites – the story was covered on both the Free Press and VPR Web sites, and on Green Mountain Daily, and perhaps other media as well – they might have engaged in a bit more background research before filing their lawsuit.

    • Jim Christiansen

      Exercising ones legal right as defined by Vermont law should not be characterized as “delaying tactics”.

  • Randy Koch

    Eric Davis may not be not entirely correct. As I recall, Jack Lindley’s rant was against the “collusion” between the Democrats and the Progressives whereby the Progressive candidate on the primary ballot was committed to withdrawing if she won, an act which could only be construed as a favor to Shumlin. I got the idea Lindley was objecting to some possible quid pro quo and not that he had it in for Condos.

  • David Dempsey

    As Sandra Pinsonault said in this story, “a deadline is a deadline”. The recount and certification process started on a Thursday and was expected to end the next day. Instead it finished the next Tuesday. With the deadline looming, the recount should have continued over the weekend. This lack of urgency wasted 2 critical days. The recount was poorly planned and lacked leadership and co-ordination. It took 6 days instead of 2.

  • Dan Culligan

    Mr. Merriman,

    You obviously never considered the logistical challenge of getting mail overseas to a mobile command. Actually, the MPO does quite a good job, but mail never reached me on deployed Navy warships in less than two weeks. The typical delivery method was helo and spare parts/personnel won out when weight limits were reached. Prior to the advent of email capability on our ships, our only option was to wait for the ballot; Vermont law at that time required mailing within two weeks of the election, effectively preventing those of us deployed on ships and subs from voting. I received my VT absentee ballot long after the election was over in 1996 and 2000.

    • Charles Merriman

      Thank you for that insight, Mr. Culligan. I didn’t mean to show disrespect for the MPO, but I acknowledge that my comment reads that way. As a Vermonter, though, you probably agree that the 45-day deadline has disrupted and damaged our election process here in Vermont. So what is the solution? It is this: the Feds need to help the MPO do a better job of timely getting ballots to overseas service people. Emphatically, the Feds should not entrench upon Vermont’s authority to set a later-in-time primary deadline.

  • Pete Novick

    I think we should collectively sell Vermont to Canada. The Canadian economy is among the healthiest in the world and what with the appreciation of the Canadian dollar over the last 4 years, I bet Vermont would fetch a pretty good price.

    Vermont has a lot to offer Canada. We have a low wage economy which could be very attractive to Canadian businesses. As many Canadian companies know already, we have 2 excellent interstate highways which more and more Canadian companies are using to deliver their goods to markets to the south of us, where presumably there are people who can afford Canadian products. By moving manufacturing facilities from say Montreal to Brattleboro, Canadian companies could reduce transportation costs and get their goods to market even faster.

    Shoot, a fair number of us speak passable French.

    As for the conversation about voting in the previous posts above, the federal government has constitutional authority (that means it comes from the Constitution) and statutory authority (that means it comes from Congress) for regulating voting in not only federal elections but state elections as well.

    Not convinced? Here’s a link to search the US Code.

    Type ‘voting in federal elections’ in the box labeled Search Word(s).

    If you finish reading by Tuesday morning, you’re welcome to come over for coffee.

    Now, back to the idea of selling Vermont to Canada…