With rules in place, recount can begin once date is set

Robert Frenier
Rep. Bob Frenier, R-Chelsea. File photo by Morgan True/VTDigger
The rules are in place for House members to follow as they conduct a new recount in a contested election for a seat in the chamber.

Rep. Bob Frenier, R-Chelsea, looked on Thursday from his seat on the House floor as lawmakers agreed by voice vote to the “policies and procedures” for recounting the votes that led to his election.

Former Rep. Susan Hatch Davis, P-Washington, who a judge ruled lost her seat to Frenier by seven votes, had challenged the election, petitioning the House late last year to take up her case.

“I would have liked to have had a roll call vote so the people who voted for this could be interrogated at town meeting,” said Frenier, who has been critical of the process leading to the recount. “I think people will be appalled when they really get all the facts.”

Hatch Davis did not attend Thursday’s session but said after the House agreed to conduct the recount that she was happy with the decision and would accept whatever results it brings.

No recount date was set Thursday, but lawmakers talked earlier this week about starting Wednesday, with it possibly stretching into the next day.

Discussion over the “policies and procedures” for the recount was short Thursday, less than 30 minutes, unlike the more than five hours the House spent earlier this month debating before voting to conduct the recount.

The full House agreed to adopt the rules, with no changes, as recommended by the House Government Operations Committee, which developed them.

Despite the swift approval and little discussion, the session still featured some of the claims of partisanship that have underscored the new recount debate, punctuated Thursday by Rep. Thomas Terenzini, R-Rutland Town.

Rep. Thomas Terenzini, R-Rutland Town
“I see this as a ploy by the socialist Democrats and the Progressives to steal an election that was won fairly by a Republican,” Terenzini said, before he was cut off by another House member saying his comments were out of order.

“I would have to agree that he did speak directly to motive, which is against the rules of the House,” House Speaker Mitzi Johnson, D-South Hero, responded. “The member from Rutland Town should avoid assigning motive for any action on the floor.”

Terenzini then spoke again, saying the House needed more ethics training.

“Because,” he said, “this body has no ethics.”

Terenzini’s comments Thursday followed a remark he made on the House floor earlier this session aimed at members of other parties.

“I just want to tell the Progressives and the social Democrats that there is a new sheriff in town at 1600 Pennsylvania Ave.,” he said, referring to Republican President Donald Trump.

Another Republican who spoke Thursday struck a different tone.

House Minority Leader Don Turner, R-Milton, told his fellow lawmakers that while he “solidly” opposed the recount, he would support adopting the rules. “We do have to get this issue behind us,” he said.

The recount has angered Republicans who claim Democrats and Progressives are trying to make it harder for them to sustain a governor’s veto.

Don Turner
House Minority Leader Don Turner, R-Milton. File photo by Erin Mansfield/VTDigger
If Frenier loses the recount, Republicans will be down 52 members, with 51 votes needed to sustain a veto by Republican Gov. Phil Scott.

Democrats and Progressives say they are trying to make sure the voters of the Orange-1 District can have confidence in the results of the election. They also say state law regarding recounts does not adequately address the visual inspection of ballots that are counted by tabulators.

The Vermont Constitution allows for the House to hold a new recount but does not provide any instruction in how to carry it out.

Hatch Davis petitioned the House seeking the new recount after results on Election Day, a recount in Orange County and a judge’s ruling left her still trailing Frenier.

The set of rules contained in H.R.10 and adopted Thursday provides protocols including how to collect the ballots at the district’s six town offices and how the memory cards from the tabulators will be handled.

Two memory cards, one that will be used for the new recount and the other serving as a backup, will be kept in a locked drawer in the office of the Montpelier police chief prior to the start of the recount.

The recount will take place in Room 11 of the Statehouse, with separate areas for the recount team and the public to keep them from mixing.

“The sergeant-at-arms and Capitol Police will keep order in the recount room,” Rep. John Gannon, D-Wilmington, who helped draft the rules, told lawmakers Thursday.

A 23-member panel of House members will conduct the new recount, with 11 Republicans and a total of 11 Democrats and Progressives.

Rep. Maida Townsend, D-South Burlington, chair of the House Government Operations Committee, will lead the panel.

Townsend will be assisted by the leaders of the Republican and Progressive caucuses in the House. Those three members will have the final say over any contested ballot, with the majority ruling.

Before a ballot reaches that stage, another team of lawmakers will look at the ballots to make sure the oval next to a candidate’s name is completely filled in before they are placed in the tabulator. Legislators will hand count those lacking the filled-in oval.

If that team of lawmakers can’t agree on the voter’s intent, that’s when it heads to Townsend and the leaders of the Progressive and Republican caucuses for a final determination.

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Alan J. Keays

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  • robert bristow-johnson

    Here are the rules that are “in place”: H.R. 10

    Here is a salient portion:

    VIII. Ballot Review and Hand Count

    (c)(1) Then, for each pile of 50, each Pile Team shall review each ballot
    within the pile and remove from that pile each ballot upon which, for the office
    in question, the voter recorded his or her vote or votes in that race in any
    manner other than completely filling in the oval to the right of the candidate’s
    name. These teams shall also remove any plain paper or damaged ballots.

    now i would not demand that nary a pixel of light come from inside the oval, but this or something like this needs to go into the language of the current law regarding recounting by vote tabulator.

    17 V.S.A. § 2602f. Recount by vote tabulator (a)(1)

    when voters mark their choice with a check mark, their mark might be noticed by the machine (and counted), but it might not be noticed by the machine. but these poorly-marked ballots can be noticed by humans. but otherwise, there remains no good reason to not recount using the machine as long as ballots are examined first to take out any ballot that might be dubiously read by the optical-scan vote tabulator.

    • Paul Drayman

      Thank you !! I find it hard to believe that Republicans, almost unanimously, want to characterize this recount as an attempt to steal an election. “I would have liked to have had a roll call vote so the people who voted for this could be interrogated at town meeting,” said Frenier. What is that, some kind of threat against a lawmaker that believes a candidate has a right to invoke her legal options in a very close race.
      A judge certified the previous results. Does this mean that the judge recounted every ballot? Just curious what that judge actually did. Legislators have decided that several ballots deemed by the towns as “defective”, will not be recounted. That seems way more than fare to Mr. Frenier.

      • robert bristow-johnson

        actually Paul, if i were a House legislator and if i was informed in the course of things that the Town Clerks had carefully separated the poorly-marked ballots from the well-marked ballots and had passed only the well-marked ballots through the tabulator and counted the poorly-marked ballots by hand and had no visual dispute over the voter intent of any of the hand-counted ballots (or not enough to potentially change the election result) and had done this all on two occasions with a difference in outcome of only one vote, and there was judicial review of all of this, if all that had been done i would vote to not recount this election in the Vermont House and to accept the outcome that had placed Bob Frenier into the House seat.

        • Paul Drayman

          I would have to agree with you, but I don’t believe that is how the recount was done. It would also be interesting, though, to know what they termed as defective ballots.

          • robert bristow-johnson

            since i wasn’t there, i don’t know this for sure:

            but it appears that the main fuss is about ballots that were only counted (or not) by the optical-scan tabulator that may not have been marked well enough to be confident that the machine recognized the mark and counted the vote.

            i was involved in the Shumlin-Racine primary recount in 2010 and this was an issue for us for a very small number (no more than 3 or 4) of ballots and the procedure required us to feed these ballots through the machine right outa the ballot bag. and i have been harping about that problem for 6 years. finally getting noticed about it, because this question has bitten us again. they need to fix it in the law.

          • robert bristow-johnson

            defective ballots are early voting ballots that were mailed out to the requesting voter and were mailed back but the voter did not do everything correctly, such as putting the ballot into the correct envelope or signing the envelope, in returning the ballot. unfortunately the law requires that those ballots shall not be voted (whether that would be counted by “hand” (or eye) or be counted by optical-scan tabulator).

            i think that law should be changed, at least for recounts.

  • Jamie Carter

    The Democrats in the Legislature will do anything to get out of enacting meaningful legislation, even if its hand counting ballots that have already been counted twice.

    I had high hopes for Mitzi, but she has shown early on she is in over her head.

  • wendywilton

    I am disappointed by the lack of a roll call vote. This is a more important issue than the story belies. If the election, which was properly conducted by the town clerks, is overturned it will be a sad day for the voters of Vermont. This election was already recounted and certified by a judge. Partisan politics at its worst. Speaker Johnson is off to a very poor start in serving our state. She knows this was a valid election and with all of the serious budget issue facing this state this is not a good use of their time.

    • Homer sulham

      “Partisan politics at it’s worst” is a very true statement . I guess some people just can’t except defeat.

    • robert bristow-johnson

      if the election is overturned due to legitimate facts (which are unlikely to occur) that puts HatchDavis in front of Frenier, i can’t see how that is a sad day for the simple majority of voters of that district. i cannot see how a responsible office holder would make such a claim.

      but i very much doubt it will be overturned. she’ll likely lose by about 7 votes.

  • Ritva Burton

    What is the magic number of recounts allowed?? Hopefully Montpelier will get to the issues that matter to voters in VT – affordability issues! This recount has been a total waster of legislators time and taxpayer money.

  • Valerie Mullin

    In politics, like in life, what comes around, goes around. This precedent is one which Vermont will remember, for a long time to come. If I remember correctly, 2 election cycles ago, Republican Michael Ly from Burlington lost his VT House seat by less than 5 votes. If town clerks and those who work locally on elections can’t be trusted according to VT’s super majority, then it seems that the State House will be counting races for years to come.

    • Paul Drayman

      If Mr. Ly opted not to ask for a recount, that is his business. If you think that makes him a hero, that is yours. By the way, I believe Michael Ly was a close third in the race, but if he wished to ask for a recount, that would be OK with me.

    • robert bristow-johnson

      and Ly didn’t “lose his VT House seat”. he was not the incumbent.

    • robert bristow-johnson

      actually it was 1265 Cole to 1217 Ly. so the margin was 48 votes.

      not particularly close. at least it wasn’t so close to require a recount.

  • Steve Baker

    lawmakers agreed by voice vote to the “policies and procedures”. Can the Sleeping Majority of Vermonters see whats going on here?

    • Paul Drayman

      Why is it that so many of the comments here opposed to the hand recount, which I understand will be done by a committee with both parties participating, and is a completely legal avenue for a candidate to assure the results of a very close vote, that employed vote counting machines, are making completely wild accusations about stealing an election. From what I understand, the legislature has already agreed that ballots deemed by the towns as “defective” will not be revisited. So, it is a hand count to verify the results. With the “defective” ballots out of the picture (but even if they were not) the chances that Frenier will be unseated are slim. Democrats cannot create ballots that don’t exist, so how is there anything suspicious going on. The real concern by Republicans is that there is a slight chance the actual count will reveal Hatch won. I “Sleep…” better knowing that the will of the voters carries the day and that the principle is protected by a legal process not weakened or discouraged by political intimidation.

      • Steve Baker

        What was wrong with the last re-count(s)?
        “better knowing that the will of the voters carries the day and that the
        principle is protected by a legal process not weakened or discouraged by
        political intimidation.” That sounds all too familiar in today’s setting, but you can’t pick and chose what laws or legal process you want to follow.
        There was a legal process in place, the Liberals (Voice) voted to make up another.

        • Paul Drayman

          Judge Teachout denied Hatch’s request for a second or hand recount. Hatch then took her request to the Vermont House, which by the Vermont Constitution has the authority over “the elections and qualifications of its own members”. I’m almost certain that the Judge also mentioned this. There is nothing made up about it. I do understand the frustration and inpatients of many people, but Hatch has the right to pursue this to its legal conclusion. Much of the time and delay over this issue in the legislature has been the Republican protest.

  • John Freitag

    Dick Drysdale, the well respected former owner and editor of the Herald of Randolph, whose paper covers the District in question, in a guest editorial on this issue entitled “Waste of Time” wrote, “Vermonters have become use to sneering at party politics in Washington, DC , where bickering between Republicans and Democrats have reached a new low, including the GOP’s unheard-of refusal to allow even a vote on then- President Obama’s choice for the Supreme Court. But Vermonters needn’t be smug. The same sort of party mindset has settled over Montpelier during first weeks of the legislative session.”
    He goes on to detail the recount process and the certification by two judges of the election and the amount of time spent in committee on this issue. He adds, “The entire House of Representatives then took up a whole legislative day arguing about it. Among other things they heard strong objections by town clerks who don’t like to be second guessed by the legislature. The town clerks didn’t carry the day , though politics did”. Finally Drysdale commends the three Democrats: Jim Masland, Tim Briglin and Jay Hooper and one Independent, Ben Jickling in our areas who voted against the re-count.

    • Paul Drayman

      I can’t subscribe to the Herald just to read the article. If there was detail, can you tell me the process the judges used to certify the results. By the way, you seem to be impressed that Drysdale “commends the three Democrats…and one Independent…who voted against the re-count.” I guess the overwhelming majority that voted for the recount are part of a sinister plot to confirm who actually won.

  • Shouldn’t the title of the article be, “With newly created post election rules in place…”

  • Paul Drayman

    “I see this as a ploy by the socialist Democrats and the Progressives to steal an election that was won fairly by a Republican,” Terenzini said. If he thinks it was won fairly, then why is he so worried about a hand recount with both parties participating. In addition, it was agreed long ago that the “defective” ballots will not be revisited. The only way Democrats could steal an election is to magically create ballots that don’t exist. It seems that more people than I thought become angry and worried when someone exercises their legal options.
    “I just want to tell the Progressives and the social Democrats that there is a new sheriff in town at 1600 Pennsylvania Ave.,” said Terenzini. Brilliant !! By the way did you happen to hear or watch the president’s press conference the other day? Again, brilliant !!