(This story was updated Feb. 22 at 7:45 p.m.)
[R]ep. Bob Frenier, R-Chelsea, will retain his seat after a much-anticipated legislative recount of his election was called off before it even started.
“It was a comedy of errors from start to finish,” Frenier said Wednesday. “Then we come down here and find out that ballot bag had been opened and it kind of completes the third ring of the three-ring circus.”
The recount in the Orange County House election came to an end moments earlier after it was announced that a ballot bag from Chelsea had a different seal than it had after a previous recount of the ballots at the county level in November.
The rules set by the House last week for the new recount stated that if any seal or ballot bag “has been tampered with,” the recount would end with Frenier the winner.
Former Rep. Susan Hatch Davis, P-Washington, had challenged the election, petitioning the House to take up her cause after a Superior Court judge ruled in December she lost to Frenier by seven votes in the Orange-1 District.
Frenier, who has been critical of the process leading up to the recount, said later Wednesday that it’s a relief to have it out of the way.
The full House affirmed Frenier’s election Wednesday afternoon.
Hatch Davis could not be reached Wednesday for comment. She had said previously she would accept the results of a recount.
Republican Gov. Phil Scott, at his weekly news conference Wednesday after it was clear Frenier would retain his seat, commented on the amount of time the House has spent dealing with the recount.
“It’s taken what now, seven weeks,” he said. “Now that that’s over … maybe they can focus on some other issues that really do help Vermonters.”
Wednesday morning a crowd gathered in Room 11 at the Statehouse, and the 23 members of the House recount team took their places around tables.
Rep. Maida Townsend, D-South Burlington, chair of the recount panel, stood in the front of the room, flanked by House Minority Leader Don Turner, R-Milton, and Rep. Robin Chesnut-Tangerman, P-Middletown Springs, head of the Progressive caucus in the House.
In a show of tripartisan unity, the three House members announced they had just verified that the seal and seal number on a ballot bag had changed from one put on it after an earlier recount.
As a result, Turner said, according to the rules the House adopted, the recount had to stop.
“My perspective,” the House GOP leader said, “is this is over and Bob Frenier will be confirmed as the elected representative from Orange County.”
Chesnut-Tangerman agreed.
“Our whole purpose with the recount was to have a procedure that was beyond question,” Chesnut-Tangerman said. “Right now, I don’t see how we can proceed with a recount that is beyond question, procedurally.”
Townsend, who said she learned of the problem Tuesday morning, added she was surprised the issue with the bag hadn’t come up earlier.
“I’m somewhat overwhelmed by this question,” she said, “as to how all this time has passed and we did not know of this ballot bag being opened or the circumstances for it until yesterday morning.”
Townsend is also chair of the House Government Operations Committee, which had been debating and discussing the new recount since shortly after the session began in January. She added that she wasn’t criticizing the town clerk for her actions regarding the seal and the ballot bag.
The bag in question came from Chelsea, one of the six towns that make up the Orange-1 District.
The town clerk in late December had emailed the secretary of state’s office and asked if she could retrieve the town’s voter checklist from inside the ballot bag to complete a federal reporting requirement.
In an email exchange with the secretary of state’s election division, the clerk was told she could, as long as there was another election official with her witnessing it. The checklist was retrieved and a new seal with a new number was placed on the ballot bag.
“She had contacted the secretary of state’s office as is required,” Townsend said. “She had asked for permission, she had asked for the guidance as to what she was supposed to do and she had followed the guidance she was provided.”
Secretary of State Jim Condos later said he had learned of the issue with the seal on the ballot bag only Wednesday morning.
He said the law on the matter isn’t entirely clear.
“It’s a little in ambiguous,” Condos said. “It says that the town clerk can designate two people to open the bag.”
Will Senning, director of elections in the secretary of state’s office, added, “It says she needs to open the bag in the presence of two election officials. Both of them were election officials.”
Senning said while he knew that a different seal had been placed on the bag, he didn’t bring the issue up in earlier discussions he had with the House Government Operations Committee because he didn’t think it was a problem.
“The clerk had followed the statutory process,” he said. “To me, it didn’t raise any questions about tampering with the bags.”
The statute says that if a ballot bag needs to be opened — and specifically mentions the need to retrieve a checklist inadvertently left inside — the town clerk needs to notify the secretary of state’s office.
The law then reads, “and the secretary of state shall order the town clerk in the presence of two town election officials who are not members of the same political party to open the bag to remove the entrance checklist or to move the entire contents to new bags or containers, affix new seals, and transmit the new seal numbers.”
Condos also pointed to the recount rules set by the House that stated the election would be called off if a bag or seal had been “tampered with.”
“There was not tampering. This was not in any way tampering,” Condos said. “The clerk did her job. She contacted our office in writing, asked for permission to go into the bag. We said, ‘Yes, make sure you attach a new seal and make sure you have two election officials,’ and she did.”
Townsend said that had she known of the issue earlier, the rules could have been drafted to take the situation that arose into account.
Turner said he found out about the matter Tuesday afternoon and went to the House speaker to tell her he was going to raise the issue as a reason for calling off the recount.
Speaker Mitzi Johnson, D-South Hero, said Wednesday that after learning about the issue with the new seal on a ballot bag a day earlier, she sought the advice of the Office of Legislative Counsel on whether it broke the rules the House adopted.
The answer she said she got back: “This was a violation of that last provision and that’s a problem.”
Rather than try to renegotiate the rules, and with little time before the Town Meeting Day break, Johnson said, it made sense to call the recount off.
The debate over the recount has been heated at times, with many party-lines votes along the way on whether to even conduct it.
GOP House members called it a partisan move to try to make it harder for them to sustain a Scott veto. Progressives and Democrats argued that they wanted to make sure the tally was accurate so voters could have confidence in the results.
Hatch Davis, a former five-term lawmaker, challenged the election after a Superior Court judge declared Frenier the winner by seven votes. The Vermont Constitution allows for the House to conduct a new recount but does not provide the rules.
Republicans, Democrats and Progressives all agreed Wednesday that state law regarding how initial recounts are conducted needed changes.
Johnson said the “brainstorming” on those changes is already underway and she expected it would be taken up by the full House this session.
Rep. Ron Hubert, R-Milton, vice chair of the House Government Operations Committee, said he had one change already in mind.
During a recount, Hubert said, he would like to see election officials “visually inspect” ballots before putting them in a tabulator to be counted, a matter that was raised in the election challenge. That way, Hubert said, any stray markings could be seen, possibly aiding in determining a voter’s intent.
Chesnut-Tangerman, the Progressive caucus leader in the House, remarked on the end of the recount issue later Wednesday as the full House voted on Frenier’s election.
“I must note,” he said, “the irony that an investigation of a possible procedural error was derailed by procedural error.”
Turner, the Republican leader, said past counts had showed Frenier prevailed and he was confident another count would show the same.
“I have no doubt that the voters’ will in Orange-1 has been carried out today,” he said.
