The fourth issue in the Orange-1 recount is whether or not the legislative branch of Vermont government is properly doing its job in this matter.
The Vermont Constitution says that the House of Representatives “shall have power to … judge of the elections and qualifications of their own members…”
No one expects the House of Representatives to actually conduct the elections of its members. We expect the Legislature to create the machinery of government that is necessary to fairly conduct all elections; to inquire as needed into the operation of that machinery; and to make adjustments to that machinery as circumstances warrant.
The Legislature has created considerable government machinery for elections. Title 17 of Vermont Statutes Annotated (V.S.A.) is about elections. Chapter 51 in that title is about the conduct of elections. Subchapter 9 is about recounts and contest of elections. The section that I quoted in the previous post (17 V.S.A. § 2605) is in Subchapter 9.
The Legislature has delegated operational oversight of elections to the Office of the Secretary of State which has developed substantial procedural manuals and training for those persons who are locally responsible for conducting elections. In towns such as in the present matter, those persons are primarily the town clerk assisted by the selectboard and the justices of the peace (i.e., the Board of Civil Authority). There is also occasional judicial oversight, as in the present matter.
Taken altogether, there is substantial government machinery involved in elections.
Susan Hatch Davis believes that this machinery did not operate properly in the Orange-1 election. The House of Representatives, by passing H.R. 8, agreed. However, there is nothing in H.R. 8 that says what it is about the machinery that did not operate properly. There is nothing about what is wrong with the machinery that is being fixed so that it will not happen again. H.R. 8 seems to say simply that Ms. Davis petitioned the House of Representatives for a recount, and the House believes that the constitutional language quoted above compels them to grant her request. This seems questionable.
Further, the House believes that the only resolution for this matter is to recount the ballots themselves. This is highly unusual. It has not happened since 1985. It is questionable if representatives should ever count ballots in the election of their peers. Historical precedent is important, but it does not guarantee that it was the right thing to do even then. Representatives are generally not trained in election procedures, and counting ballots is not what voters elect representatives to do. But the biggest issue is that there is a huge, built-in, unavoidable conflict of interest. The House seems to believe that the constitutional language quoted above forces them into having to count ballots. This seems questionable.
The issue: Is the House of Representatives properly doing its job as specified by the Vermont Constitution?