Judge dismisses suit challenging Condos’ mail-in voting plan

Diane Blodgett opens mail-in ballot envelopes at a polling place at the Barre City Auditorium on August 11, 2020. The secretary of state wants to send every registered voter a ballot for the November election. Photo by Mike Dougherty/VTDigger

A federal judge has dismissed a lawsuit filed against Vermont Secretary of State Jim Condos that sought to block the state’s plan to send every voter a mail-in ballot this November. 

Earlier this month, a group of five Vermont voters including former Republican state representative Bob Frenier, Rep. Brian Smith, R-Derby, and Victory Town Clerk Tracey Martel, sued Condos alleging that the plan could lead to voter fraud.

But on Wednesday U.S. District Court Judge Geoffrey Crawford struck down the lawsuit, arguing that the plaintiffs didn’t prove they would be individually harmed by the mail-in voting policy.

Crawford said that fraudulent voting or miscast ballots wouldn’t specifically harm the five voters bringing the suit.

“A vote cast by fraud or mailed in by the wrong person has a mathematical impact on the final tally and thus on the proportional effect of every vote, but no single voter is specifically disadvantaged,” Crawford wrote. 

He also rejected the argument the plaintiffs made in court on Tuesday that Condos’ system would harm the plaintiffs’ right to vote because they may not receive a ballot in the mail this fall. 

The plaintiffs argued that the secretary of state’s office is relying on an inaccurate voter checklist, and that ballots will be sent to the wrong addresses.

The group claims that some voters, including one of the plaintiffs, didn’t receive the postcards the secretary of state’s office intended to send to all registered voters this summer. 

The postcards asked voters if they wanted to receive a mail-in ballot for the August primary, and to help the state find errors in and update its voter checklist ahead of the general election.

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The complaint states that in some cases, voters didn’t receive postcards. In others, postcards were sent to voters’ former addresses, or sent to former Vermont voters who now live out of state, the plaintiffs say.

But voting by mail will not be required under Condos’ plan.

Voters will still have the option to vote in person and can still directly request ballots from town clerk’s offices this year. 

Condos called the judge’s ruling “a win for safe, secure and fair elections in Vermont.”

“Voting by mail is legal, safe, and secure: voters should be confident that, no matter what challenges the COVID-19 health crisis is presenting to our communities, Vermont elections are inoculated against this virus,” Condos said in a statement.

Deborah Bucknam, an attorney for the plaintiffs, did not immediately respond to a request for comment Wednesday afternoon. 

In its complaint filed earlier this month, the group alleged that Condos’ plan for a “mass mailing of ballots” will create “a large pool of ballots that are ripe for fraudulent use.”

During a virtual court hearing on Tuesday, David Warrington, a lawyer for the plaintiffs, said that if the system leads to fraud, or even mistakenly cast ballots, it will disenfranchise voters.  

“It doesn’t matter whether an improper vote is cast because of fraud or mistake, mistake is much more likely….but the effect is still the same. It’s diluting the vote of the valid voter,” Warrington argued.

Crawford called the five people who brought the lawsuit “sophisticated voters who have gone to considerable lengths to obtain counsel skilled in election law and to file a lawsuit in federal court.” 

“Of all people likely to be confused about how to vote, these five plaintiffs must be the last on the list,” Crawford wrote. 

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Xander Landen

About Xander

Xander Landen is VTDigger's political reporter. He previously worked at the Keene Sentinel covering crime, courts and local government. Xander got his start in public radio, writing and producing stories for NPR affiliates including WBUR in Boston and WNYC in New York. While at WNYC, he contributed to an award-winning investigation of how police departments shield misconduct records from the public. He is a graduate of Tufts University and his work has also appeared in PBS NewsHour and The Christian Science Monitor.

Email: [email protected]

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