Orange-1 recount: A suggestion

The previous six posts have discussed the recount of the election in the Orange-1 district in the Vermont House of Representatives, and my concerns with the process. In this post I make a suggestion for consideration.

See the report dated January 10, 2017 by the Office of the Attorney General (click here). That report, which I mentioned in an earlier post, discusses when an election issue involving a candidate for the House of Representatives can be resolved by the courts and when it must be resolved by the House of Representatives, taking into account a 1983 decision by the Vermont Supreme Court (Kennedy v. Chittenden). Briefly, the Supreme Court said that a “recount” issue can be resolved by the courts, but a “contest” issue involving certain kinds of alleged irregularities must be resolved by the House of Representatives because of the separation of powers doctrine.

Senior Assistant Attorney General Michael Duane, the author of said report, believes that one aspect of Susan Hatch Davis’s complaint falls into the category of a “contest” issue that requires resolution by the House of Representative – Ms. Davis’s request that all ballots deemed spoiled or defective in the original count be included in a recount. They were not included in either the original count on November 8, 2016 or the recount on November 28.

In fact, the House of Representatives dealt with that issue on February 1, 2017 when it adopted H.R. 8. As proposed, the first resolved clause of H.R. 8 was as follows:

That this legislative body resolves that a recount of all votes cast for the House of Representatives in District Orange-1, except for 14 ballots previously determined to be defective, shall be conducted, and be it further

Representative Haas of Rochester offered the following amendment:

In the first resolved clause by striking out “, except for 14 ballots previously determined to be defective,” and after the words “shall be conducted, and” by inserting “all ballots shall be inspected, and

That proposed amendment was defeated by a vote of 11 yeas to 125 nays with 1 abstention. See the House Journal for February 1, 2017, pp. 138-140 (click here).

I offer the suggestion that the House of Representatives can consider itself to have responded satisfactorily to the issue that it needed to respond to, and that it need take no further action (except to rescind its self-imposed obligation to conduct a recount). I see no need for the House to conduct a recount. The remaining issues are “recount” issues which can be resolved by the courts. In other words, Ms. Davis can now appeal the decision of the Orange County Superior Court to the Vermont Supreme Court if she wishes.

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