[M]ONTPELIER — A House committee wants to do a recount of an election in which a judge has ruled a Republican challenger ousted a Progressive from her seat in the Legislature by seven votes.
The House of Representatives first must take up the recommendation before the recount could start. The election involved Susan Hatch Davis, of Washington, who had represented her Orange County district for five terms, and Bob Frenier, a Republican from Chelsea who has previously been declared the winner.
The House Government Operations Committee voted 7 to 4 on Wednesday afternoon in favor of performing a recount, with the Democrats and one Progressive on the panel in support. The four Republicans on the committee opposed the move.
“There are still many steps ahead,” said Townsend, D-South Burlington.
The Vermont Republican Party issued a statement late Wednesday saying the committee’s action “reeks of Montpelier’s insider cronyism” and asking Vermonters to contact their legislators and urge them to vote against the measure.
House Speaker Mitzi Johnson, D-South Hero, said the recount was one of a number around the state last fall that showed the procedures need to be examined. “We will be taking that up, and in the meantime it is our duty to make sure that election results reflect Vermonters’ will,” Johnson said in a statement Wednesday evening.
“Democracy means nothing without fairness and accuracy, and work done to ensure the integrity of our elections is an important investment,” she said.
Rep. Ronald Hubert, R-Milton, the committee’s vice chairman, argued against a recount and said he had concerns about the process moving forward, if the full House supports the action.
“It has become very clear that this has become extremely partisan,” he told fellow committee members. “I would be remiss not to bring that to the table.”
“I understand what you just said,” Townsend replied, “but I don’t believe that, personally.”
The Office of Legislative Council will draft a formal resolution for the committee to present to the House. The committee is expected to take up that resolution Thursday morning.
Both Frenier and Hatch Davis watched Wednesday afternoon as the committee voted.
She said she’s unsure if she will be able to gain enough votes to overtake Frenier.
“I’m not afraid to do it, and yes, I could lose votes, but it will still give me confidence that it was a fair process,” she said.
Frenier, who has already been sworn in as a House member from the Orange-1 district, said the panel’s action was based on unsubstantiated allegations regarding the conduct of a recount in late November that upheld the Election Day result giving him the win.
The panel, he said, put the burden on him to show the election was proper, instead of on Hatch Davis to prove it was faulty. “Proving a negative is very hard to do — impossible, really, which is why the legal tradition puts that burden of proof on the loser,” he said.
“This will be the third time these votes have been counted, and there is a partisan odor in the air that should worry all Vermonters who cherish nonpartisan elections,” he added. “It’s an insult to every town clerk in the state, too.”
Frenier also said the committee had been “bamboozled” by Vincent Illuzzi, an attorney and former Republican state senator for Orleans and Essex counties who represents Hatch Davis.
The House committee spent several hours over two days last week listening to varying views on the disputed contest. It took testimony from state election officials, attorneys, current and former lawmakers, town clerks and others.
Disputes in the election included whether there was a consistent process for determining when an absentee ballot was considered “defective,” allowing it to be counted or not. Also, the condition of some of the ballots during the recount differed from election night, which may have thrown off a tabulator trying to properly record a vote.
Some ballots that were creased while they were stored in bags had to be flattened out to go through the tabulator, which law requires be used for a recount. Others had to have staples removed before they could be sent through the machine.
Orange-1 is a two-member district that includes Chelsea, Vershire, Corinth, Washington, Williamstown and Orange.
In December after an appeal of a recount, Superior Court Judge Mary Miles Teachout issued an order showing Rep. Rodney Graham, R-Williamstown, with the most votes in the race — 2,015 — giving him one of the House seats from the district.
The judge had Frenier winning the second seat by seven votes, with 1,852 to 1,845 for Hatch Davis.
The Election Day tally had Frenier edging Hatch Davis by eight votes. A recount narrowed his margin to six votes, prompting the appeal to Superior Court.
The judge ruled on three disputed ballots, awarding two of them to Frenier and one to Hatch Davis, leading to Frenier’s seven-vote victory.
Hatch Davis then took her case to the House, which under the Vermont Constitution has the authority to judge the “elections and qualifications” of its members.
If the House does support the panel’s recommendation to conduct a recount, many questions still must be answered since the House has the authority to set its own recount rules.
The rules need to deal with the chain of custody and security of the ballots while on the way to the Statehouse as well as when they are in the building. The committee also must decide how disputes regarding votes and ballots will be settled, and who will have the final say in such matters.
In addition, the committee must decide whether to count the ballots by hand or use a machine tabulator.
Townsend asked Will Senning, director of elections in the secretary of state’s office, to come up with a set of rules for the panel to consider for the recount.
“I’m asking him to put together suggestions to bring to us,” Townsend told her committee. “We make the decisions. It’s up to us. It’s our responsibility.”
As the session drew to a close, Rep. Patti Lewis, R-Berlin, a committee member, asked Hatch Davis if she would accept the results of the panel’s recount, if it took place.
“I think I would have no other option,” Hatch Davis responded.
