Former Rep. Susan Hatch Davis, P-Washington, who served five terms, pressed her case last week to the House Government Operations Committee, challenging the election of Rep. Bob Frenier, R-Chelsea.
The Orange-1 district includes Chelsea, Vershire, Corinth, Washington, Williamstown and Orange.
The House committee spent several hours over two days hearing from state election officials, attorneys, current and former lawmakers, town clerks and others.
The committee is expected to submit a report and recommendation on the matter this week to the full House, which will decide what steps to take.
“Our sole goal is to ensure that the will of the voters in Orange-1 is carried out,” committee Chair Maida Townsend, D-South Burlington, told the panel’s members as testimony began Thursday.
Townsend, at the close of Friday’s session, told the committee, “The hope is that on Tuesday, whether it’s in the morning or at the end of the day, that we will have agreed upon what will be our recommendation and report.”
The full House could decide to adopt the panel’s recommendation or not, William Magill, the clerk of the House, told the committee.
“If the House doesn’t accept the committee’s report and says, “This other person should be seated,’ that could happen,” Magill said.
Rep. Warren Kitzmiller, D-Montpelier, a committee member, asked: “So the House could seat the other person, without having heard the testimony we heard?”
“That’s correct,” Magill replied.
A recount showed the margin narrowed to six. A tabulator was used in the recount, as required by law. In the general election, five of the six towns, which lack such machines, counted the ballots by hand. Only Williamstown used a vote-counting machine on Election Day.
Hatch Davis challenged the recount results in Superior Court, where Judge Mary Miles Teachout upheld the order of finishers, though there was a slight change in the number of votes.
Teachout, after reviewing three disputed ballots, found two more votes for Frenier and one for Hatch Davis.
In her order, the judge’s tally showed Rep. Rodney Graham, R-Williamstown, garnered the most votes, 2,015, followed by 1,852 for Frenier and 1,845 for Hatch Davis, a margin of seven for the district’s second House seat.
Hatch Davis in December called on the Legislature to take up the matter. The Vermont Constitution grants the House the authority to judge the “elections and qualifications” of its members.
Disputes in the election included when an absentee ballot is considered “defective,” allowing it to be counted or not, and the ability of the recount machine to accurately process ballots that had been placed in bags folded, stapled or wrapped in rubber bands.
The changed conditions of the ballots from the election to recount, which may include creases and areas where staples had been removed, could throw off a tabulator from properly recording a vote, Vincent Illuzzi, the attorney representing Hatch Davis, told the committee.
“It’s our position some of those ballots were damaged,” said Illuzzi, a former Republican state senator representing Orleans and Essex counties. “Garbage in, garbage out.”
He said that at one point during the recount a representative from the tabulator company had to “literally, pound his fist on the machine and repeatedly had to open and close the machine to get the ballot to go through.”
Attorney Tom Koch, a former Republican state representative from Barre Town representing Frenier, told the committee the number of “defective” ballots at issue is less than his client’s margin of victory, so even if they were all decided in Hatch Davis’ favor she still wouldn’t win.
“I think we have a recount that is accurate and that we can have confidence in,” Koch told the committee, “and know that if you recommend, and I urge you to, that Bob Frenier continue to be seated as a member of this House, that you have made the right recommendation for the people of his district that they are being represented by the person that they elected.”
Neither Frenier nor Hatch Davis addressed the committee, though both attended both days of testimony.
“Right now I don’t have any confidence in the recount of the election,” Hatch Davis said Friday after the second day of testimony. “What we’re asking for is a further recount. … We don’t know what the results will be.”
Frenier said the testimony clearly showed he won.
“I think I deserve a unanimous vote from that committee that I won the election fair and square,” Frenier said after Friday’s committee meeting. “And more importantly, the people of my district have the right to have confidence that the right decision was reached.”
