Vt. Recount Law Comes Under Fire

Chelsea — With the outcome of at least one Vermont House race still unclear, and another recount having taken longer than expected, officials from both parties have questioned a 2014 law that requires machines to be used in the process.

State officials say they’ll review details associated with the recounts, but that the basic concept of machine-tabulated recounts is still superior to counting votes by hand.

“We do acknowledge ... that better, clearer procedures need to be put in place to bring consistency and order to the process,” William Senning, director of elections for the Secretary of State’s Office, said on Wednesday. “We intend to adopt administrative rules before the next election cycle which will clarify the procedure.”

A ruling by a superior court judge has bolstered Chelsea Republican Bob Frenier’s efforts to be seated in the Vermont House for the Orange 1 district, and narrowed the legal options for state Rep. Susan Hatch Davis, P-Washington, to challenge his slim six-vote advantage.

In the Windsor-Orange 1 district, meanwhile, court officials in Woodstock have scheduled an evidentiary hearing that will allow state Rep. Sarah Buxton, D-Tunbridge, and Royalton Republican David Ainsworth to make further arguments in the outcome of that race.

In Chelsea, superior court Judge Timothy Tomasi on Tuesday filed a court order in which he accepted the certified recounted vote total for the two-seat district. That official tally shows that Frenier won 1,850 votes to Davis’ 1,844. State Rep. Rodney Graham, R-Williamstown, was the top vote-getter, and will keep his seat.

Tomasi said he would not examine three disputed ballots, since they could not change the outcome of the race.

The candidates have until Wednesday to request a hearing “relating any alleged improprieties in the conduct of the recount.”

Attempts to reach Davis on Wednesday were unsuccessful, but Vermont GOP Executive Director Jeff Bartley said Davis “has already indicated she is going to try to pull rabbits out of a hat to win. But the voters have spoken and the results are in.”

The Buxton-Ainsworth hearing is scheduled for 9 a.m. on Wednesday in the Windsor County courthouse in Woodstock.

In order to prevail, both incumbents will need to argue that there were flaws in the recount process, which took place under a recently passed law requiring the use of vote tabulation machines.

Before the change was signed into law by Gov. Peter Shumlin in May 2014, recounts could be conducted by hand, but the amended law now requires that during a recount, vote tabulators — a boxy machine that scans votes on paper and generates vote tallies automatically — be used instead of a vote count.

The bill, which was introduced in 2013 by state Sen. Jeanette White, D-Putney, contained a host of changes to Vermont’s election laws, including the imposition of higher penalties for ballot tampering, and tweaks to the way lobbying activity is reported and elections are warned.

In 2014, it sailed through the Senate on a unanimous vote, and through the House on a voice vote. Both Davis and Buxton said they believe they voted in favor of the bill. Supporters had cited studies that showed machine counts are more accurate than hand counts.

But the large margins don’t mean there wasn’t opposition.

Thomas Weiss, a Montpelier resident and election buff, filed testimony with the Senate Committee on Government Operations, objecting to mandating the use of the tabulation machines.

“It’s something that I’ve been interested in as a citizen, the integrity of elections,” Weiss said on Wednesday, adding that there are downsides to relying too heavily on machines or humans in vote tabulation.

“If the machine is working properly and it’s properly programmed, it’s more accurate than people,” Weiss said. “But we’ve got no way of checking those two parameters. That was my concern.”

In his testimony, he asked the committee to consider preserving the hand recount as an option. “I ask that the use of vote tabulators for recounts be optional at the choice of the party requesting the recount,” Weiss said. “As written, the bill will require that all recounts be done by tabulator. ... I think that we should take the time to recount by hand.”

In the Buxton-Ainsworth race, Election Day gave Buxton a three-vote lead, but a recount showed a 1,000–1,000 tie, with the status of two votes for Ainsworth in question.

In those two votes, the marks left by the voters touched the edge of the bubble, leaving election officials unsure of whether the machine had included those votes in its count.

Senning said that one adjustment in particular could have prevented the confusion in the Buxton-Ainsworth race.

“One potential change would be to have all the ballots reviewed before being run through the tabulator so that any ballots that would raise questions as to how they were read by the tabulator ... are removed and not run through the tabulator,” he said. “These ballots would then be counted by hand and the tally of these ballots could be added to the tally produced by the tabulator. This would avoid any question as to how a particular ballot in question was read by the tabulator.”

The positions of the candidates have shifted with the recount’s impact on their electoral outcomes.

Ainsworth sent a letter to the Secretary of State’s Office before the recount, in which he requested that it be done by hand; after the machine-led recount showed him with the possible advantage, he said that he respected the state’s position that a hand recount could not be done.

Buxton, meanwhile, began the day of the recount last week saying she had no reason to think there had been any irregularity in the process, but now is the one requesting that the court do a recount by hand.

Davis, who voted for the changes, said earlier this week that seeing them in action has shaken her confidence.

“They may be very accurate but if they have one ballot that is not, then that is very important,” Davis said after watching the Chelsea recount unfold.

Frenier said he accepts the accuracy of the machines, but that it costs more than a hand recount and appears to take longer.

“We had like 25 people in the room and one machine counting the votes,” he said. “We could have been done with this long ago if the law didn’t require the clerk to do it the way it did.”