Democrat Aleczander Stith is appealing independent Ali Dieng’s narrow election to the Burlington City Council’s Ward 7 seat in court, arguing the city should count four absentee ballots that were determined to be “spoiled” on Town Meeting Day.
Notice of the appeal and supporting documents were filed Friday in Chittenden Superior Court by Stith’s attorney, former Democratic City Councilor Ed Adrian.
City councilors and Democratic Mayor Miro Weinberger declared Monday following a hand recount that Dieng, an incumbent, captured 795 votes to Stith’s 793 votes in the New North End precinct, matching the city’s unofficial results from election night.
Olivia Taylor, another independent candidate in the election, got 89 votes.
On election day, officials deemed seven absentee ballots in the race to be “spoiled” because voters either did not sign them, or did not put them in the proper envelope.
City Attorney Dan Richardson has said that the spoiled ballots should not be counted because the city followed the right steps to try to fix their errors, or “cure” them. Now, Stith is appealing to determine whether that actually took place.
Since Dieng was determined to have won the election by only two votes, four ballots could reverse the final result.
“We’re not alleging that anybody was acting out of line here,” Adrian said in an interview Friday. “We think the city did the best that they can. This is an unusual situation, and that’s why the court exists, essentially — in order to have a second set of eyes.”
The city received three of the ballots in time to mail the voters notices informing them of their mistakes and giving them a chance to cure them, Associate City Clerk Sarah Montgomery said in a March 8 email that Richardson sent Adrian.
Stith is not contesting these ballots, Adrian wrote in the appeal. But the filing revolves around the four other “spoiled” ballots, which Montgomery said the city received past the deadline to mail voters a letter informing them of their mistakes.
Montgomery said in the email that after the four late “spoiled” ballots were received, the city “would have made efforts to contact” the voters who mailed them if the voters had contact information on file with the city. Two voters did not, she said, though two did have phone numbers on hand “so efforts should have been made” to call them.
Adrian wrote in the court filing that he followed up Richardson seeking more detail about those efforts. Richardson said the clerk’s office could not guarantee efforts were made to contact the four “spoiled” voters, because any effort would have been noted on their ballots — and the ballots were not copied or photographed before being sealed.
“Therefore, there is no way to determine what — if anything — was done to comply with the requirement that the City Clerk’s Office make reasonable efforts to contact the voters who cast the allegedly deficient ballots received five or less business days before the election,” Adrian wrote.
The appeal calls for a court hearing to determine whether the four ballots are actually “spoiled,” and if they are, whether the city, in fact, tried to contact the voters it could.
Any ballots that are not “spoiled” should be included in the final election results, Adrian said.
And, he said if any ballots are “spoiled” but the city did not properly try to contact the people who made the errors, the court should order the city to allow those voters to cure their ballots within seven business days of the court’s order.
If the voters go on to correct their errors, Adrian said, the court should order their ballots to count toward the final Ward 7 results.
Reached on the phone Friday, Dieng referred VTDigger to his attorney, John Franco, for comment. Franco, in an interview, said he does not see any basis for the appeal.
“Once the polls close on election day, that’s it,” Franco said. “You can’t have people coming in and voting or correcting their vote after polls close.”
