The House gave the go-ahead late Wednesday for lawmakers to conduct a new recount in a disputed Orange County legislative election.
The vote, 76 to 59 in favor of the new recount, followed more than five hours of debate Wednesday afternoon and evening. It will be the first time the Legislature has conducted recount of a House race since 1985.
Former Rep. Susan Hatch Davis, P-Washington, petitioned the House to take up the matter after a judge ruled in December that she lost her seat in the Legislature to Bob Frenier, a Republican from Chelsea, by seven votes.
“I’m pissed,” Frenier said Wednesday night after the House agreed to conduct a new recount in the race, adding, “The vote today was disgraceful.”
He said the town clerks from the six municipalities in the Orange-1 district had a combined 65 years of experience running elections. Now, he said, it will be House members counting the ballots and votes.
“It’s like they turned it over to Three Stooges,” he said. “It’s an insult … We’re talking seven votes. The chances of overturning that are zilch.”
Hatch Davis had little to say after the daylong debate and vote in favor of a new recount other than she was pleased with the action by the House.
“And yes, emphatically, I will accept whatever the outcome is,” she added.
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Frenier, at the start of the legislative session in January, had been sworn in as the second of two members from the Orange-1 district, which includes the towns of Chelsea, Vershire, Corinth, Washington, Williamstown and Orange.
Hatch Davis had challenged Frenier’s Election Day victory in November, and a recount later that month still had her trailing. Hatch Davis then appealed to Superior Court, where Judge Mary Miles Teachout declined to order another recount. Instead, the judge declared Frenier the winner.
Hatch Davis took her case to the House, which according to the Vermont Constitution has the authority to judge “the elections and qualifications of its own members.”
The date and full process for the latest recount by the House have not been determined.
Republicans in the House say the push for the new recount was based on “Washington-style partisan politics.”
The House GOP says it undermines the integrity of town clerks and local election officials, and set a bad precedent that would lead to more disputed elections ending up before the House with losing candidates asking for the same treatment afforded this one.
Democrats and Progressives have argued that they wanted to ensure that all “legal votes” were counted fairly and accurately. They contend a new recount will restore confidence in the outcome of the election.
Underscoring the recount debate is the election in November of Republican Gov. Phil Scott. To sustain a veto from the Republican governor, the House GOP would need 51 of their 53-member caucus. Losing Frenier would make that task of sustaining a gubernatorial veto more difficult for the Republicans.
The House Government Operations Committee took two days of testimony and debated the matter four more days before agreeing on a resolution to send to the House floor recommending the recount.
The committee’s vote on that recount recommendation was 7 to 4, split along party lines. The panel’s six Democrats and one Progressive voted in favor of the recount recommendation while the four Republicans on the committee all opposed it.
On the House floor Wednesday, the vote to conduct a new recount was 76-59, with 46 Republicans joined by 13 Democrats and independents in opposing the measures. No Republicans voted in support of holding a new recount.
In a bit of a twist, Frenier did not vote on the matter. He had earlier asked House Speaker Mitzi Johnson, D-South Hero, what he should do.
“I am unclear at this point what I must do in this situation,” he said to the House speaker. “Am I permitted to vote on this or not?”
Johnson, after consulting with the clerk of the House, said a chamber rule states that members shall not be permitted to vote on any question in which they are “immediately or directly interested.”
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Frenier then abstained from voting on the resolution, or any of the several amendments brought up throughout the floor debate Wednesday.
At one point during the floor debate, Rep. Rodney Graham, R-Williamstown, who was the top vote getter in the two-seat Orange-1 district, said he found it ironic that Hatch Davis is now seeking a recount to try to regain the district’s second seat in the House.
He said in 2010 he lost a seat in Legislature to Hatch Davis by four votes in a recount. At that time, he said, “the comment from Representative Davis was that recounts were a waste of time and money.”
From her balcony seat in the chamber Hatch Davis, who served five terms in the House, could be seen shaking her head back back and forth as Graham spoke. She said after the floor vote Wednesday she had no comment on Graham’s statement.
House Government Operations Committee Chair Rep. Maida Townsend, D-South Burlington, presented the recount resolution on the House floor, asking her colleagues for their support.
She reiterated points she raised in committee and in interviews prior to the floor debate about her reasoning for supporting a new recount.
She said that testimony the committee heard about a different recount showed that the “visual inspection” of ballots before they are placed in a tabulator can result in marks being seen that could lead to additional votes.
Currently, during a recount, she said the “visual inspection” of ballots is not a requirement before they are placed into the tabulator.
That is something Townsend said she wants to see take place with a new recount. “We want to make sure all legal votes are counted,” she said.
The House spent a great deal of time debating the rules that would apply to the new recount. While the Vermont Constitution grants the House the authority to judge the “elections and qualifications” of its members, it does not establish the rules for doing that.
The recount resolution called for the House Government Operations Committee to establish the “policies and procedures” for the new recount. After much discussion, the House decided that the committee should come back to the full House for final approval of those “policies and procedures.”
The House shot down an amendment offered by Rep. Sandy Haas, P-Rochester, that called for the recount to include all ballots, including those that had been previously deemed to be defectives, and not counted.
“I frankly do not understand how a new recount can simply exclude some ballots,” Haas said.
Hatch Davis has contended town clerks in the House district used an “inconsistent” process for determining “defective” absentee ballots, deciding whether votes on a ballot should be counted. The committee, in the vote in favor of a new recount, decided against considering 14 defective ballots.
Not counting those defective ballots could make it much more difficult for Hatch Davis to make up the votes needed to overtake Frenier.
Rep. Sarah Copeland-Hanzas, D-Bradford, said during the floor debate Wednesday that Hatch Davis had the constitutional right to petition the House seeking a new recount.
And conducting that new recount, Copeland-Hanzas added, ensures Vermonters that “when you cast a ballot, we will do everything we can to make sure your ballot is counted.”
Rep. Anne Donahue, R-Northfield, said the question wasn’t whether the House has the authority to conduct a new recount, but whether it should exercise it. In this case, she said, no allegations of impropriety or fraud were raised.
“The emperor has no clothes here,” Donahue said. “I ask you to defeat this resolution.”
Rep. Michael Mrowicki, D-Putney, spoke after the adoption of the recount resolution, offering a different take on the day’s proceedings.
“Democracy is not easy. It is not clean and neat and especially in this instance it is not quick and expeditious. It does require a clean and clear result,” he said. “My vote is for the process to play out until, we get to a clear resolution. Today not only are the voters served but the Constitution.”
House Minority Leader Don Turner, R-Milton, held a press conference prior to floor debate and reiterated some of the same points after the House passed the recount resolution Wednesday night.
“Authorizing another recount of a settled election sets a problematic precedent and amounts to a shameful corruption of our legislative duty,” he said. “It’s unfortunate that the majority is using Washington style partisan politics here in Vermont rather than resolving this issue the ‘Vermont way.’”
The recount resolution calls for the assistance of the Office of Legislative Council and the secretary of state’s office in helping the House develop the rules for the counting of the ballots and votes in the new recount.
Secretary of State Jim Condos said he wasn’t sure when a new recount would likely take place.
“This is not something that’s going to happen the next day,” he said Wednesday night after the House voted in favor of the new recount. “I’m hoping it’s going to happen next week.”
Editor’s note: This story was updated at 5 a.m. Feb. 1.
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