Editor’s note: This commentary is by Rep. Robin Chesnut-Tangerman, P/D-Middletown Springs, who represents the Rutland Bennington district in the Vermont House of Representatives and is leader of the House Progressive Caucus. He serves on the Energy and Technology Committee.
In the first part of this session, the Legislature embarked on a recount process to provide voters with clarity and confidence in the outcome of the Orange-1 House race. This is a look at why.
The race between Progressive five-term incumbent Susan Hatch Davis and Republican challenger Robert Frenier was always close. The initial vote count showed Mr. Frenier winning by eight votes. Ms. Hatch Davis asked for a recount because the results were far closer that the 5 percent margin that can trigger a recount. Unfortunately the recount process, which counted eight new votes and reduced Mr. Frenier’s winning margin to seven, provided little clarity about the process and in fact raised many new questions. Ms. Hatch Davis requested a hand recount. The presiding judge said it was not within the court’s authority, so Ms. Hatch Davis appealed to the Legislature. According to the Vermont Constitution, the Legislature is the final arbiter on elections of its own members; the House last undertook a recount in 1985.
In the partisan bickering that followed, several details got lost, details that help the average person understand why this process was appropriate and why a five-term incumbent would risk angering her former colleagues by putting them through this process. Among the eight election violations or errors she grieved were the following:
1) Absentee ballots were treated differently in different towns. Election law outlines specifically when a ballot shall be determined to be “defective,” which in the case of absentee ballots may include the outer envelope not being signed or sealed, or two ballots enclosed in one envelope. At question was whether absentee ballots with the inner envelope unsealed were deemed defective in all towns, or just some towns.
2) In the recount process, ballots were fed through a scanner and then examined afterward, as required by law. However Ms. Hatch Davis’ complaint claims that not only were some ballots “forced” into the scanners, but there were numerous other errors including not inspecting ballots for stray marks, folds or creases, which might be misread, using an inappropriate tabulator and memory card, and failure to create “substitute ballots” in place of those rejected by the machine.
3) Not all voter checklists were reconciled so that the number of people checking in, checking out, and voting all agreed.
Even though Republicans protested loudly that the recount was unnecessary, they do agree that we must improve the official recount process so that everyone has confidence in the outcome of the next recount.
The House agreed to conduct a recount, and despite a lengthy, contentious and partisan process, agreed to the policies and procedures to conduct it. The day before the recount was to happen it was discovered that one of the ballot bags had been unsealed to retrieve a voter checklist that had been inadvertently closed inside, and then resealed. Opening and resealing a ballot bag is neither unusual or secret; the secretary of state had given permission to do so on Dec. 29.
However the recount procedure approved by the House spelled out that, “If it is found that any seal or container has been tampered with, the recount shall not move forward and Representative Frenier shall retain his seat.” End of process.
Unfortunately we will never get the definitive vote count we were looking for. Even though Republicans protested loudly that the recount was unnecessary, they do agree that we must improve the official recount process so that everyone has confidence in the outcome of the next recount.
While Susan Hatch Davis and Robert Frenier are denied knowing the exact vote counts of their race, the Legislature’s goal is to provide that certainty in the future, to ensure that every vote is treated the same way in every town, and that ballots are examined for discrepancies before being fed into the scanner.
At the end of it all, Susan Hatch Davis has stood up against a loud chorus of condemnation and fought for election integrity, as fiercely as she fought for her constituents over the last 10 years. The voters of Orange-1 district deserve that level of election dedication, as do voters across the state. I am confident that in the crucible of this non-recount, the Legislature is now willing to hammer out the process to ensure that every vote is counted accurately and voters and candidates alike can be certain of the outcome.
