Orange-1 recount: My view

In the previous five posts I discussed the facts in the case of the Orange-1 recount, and four issues that I see in this matter.

Elections are often not as perfect as one would like. The important thing is to come to a decision, relatively quickly, via a process that the vast majority can trust.

The election in the Orange-1 district was good enough for Judge Mary Miles Teachout. It was good enough for Secretary of State James Condos. Susan Hatch Davis was entitled to appeal to the House of Representatives, but in my viewconsidering the previous two sentencesthe House should have denied that appeal.

Ms. Davis alleged numerous irregularities in the government machinery for conducting elections, but did not offer evidence sufficient for Judge Teachout or Secretary Condos to believe that the outcome of the election in Orange-1 would have been different. If the House believes that those alleged irregularities warrant investigation so that future elections may be more bulletproof, that is an appropriate task for the Legislature. But I see no reason for granting Ms. Davis’s request for a second recount.

Regarding the conduct of the executive branch of government in this matter (Issue 3), I wish that the report of the Office of the Attorney General had included an investigation and analysis of the facts, instead of leaving that job to the House of Representatives. I would prefer to use staff time instead of legislator time whenever possible and appropriate. Additionally, the Office of the Attorney General is experienced in conducting investigations. The House Committee on Government Operations interviewed witnesses including the town clerks of the six towns in Orange-1, but did not interview officials involved in the recount on November 28. As a result the committee may have had incomplete information. The two town clerks involved in the recount issued a memo to that effect on February 6, 2017 (click here).

Regarding the conduct of the legislative branch of government in this matter (Issue 4), I am concerned about the direction that this recount takes us. Extensive government machinery exists to conduct elections. The House of Representatives has said by its actions (passing H.R. 8) that it does not trust that machinery and that the only solution in this instance is a recount by legislators. This is worrisome for three reasons.

First, it casts doubt on the entire machinery of elections. The Vermont Municipal Clerks’ and Treasurers’ Association (VMCTA) issued a press release on January 31, 2017 that begins as follows:

The Vermont Municipal Clerks’ and Treasurers’ Association firmly believes recounting the Orange 1 District undermines the integrity of all Town and City Clerks as well as the Justices of the Peace, that are elected to serve as the Board of Civil Authority (BCA).

Click here for the full press release. Even if the House of Representatives did not intend to question the integrity of our institutions, that is how their actions are being perceived, as evidenced by this press release.

Of course, no process is perfect and all parties should strive for continuous improvement, but on a going forward basis – without a second recount by legislators. See comments above.

The second reason this matter is worrisome is that it sets a precedent for the future. The present actions of the House will encourage more losing candidates to file appeals to the House, further weakening trust in our institutions involved in elections. This is also recognized in the VMCTA press release.

Third, it is worrisome that legislators themselves will be counting ballots. Representatives, regardless of party, have an unavoidable conflict of interest when it comes to counting ballots in the election of a peer. No one is going to trust an election process run by representatives more than they trust a process run by trained town clerks who do not have that conflict of interest.

In my career in business, I was involved in the policies and procedures (“machinery”) for electing directors of a farmers’ cooperative—a corporation that was a financial institution and subject to federal regulation. What the House is doing in counting ballots itself is analogous to the directors counting ballots in director elections. That was absolutely prohibited by the federal regulator. It would have been considered unthinkable. And yet the board of directors of a corporation is responsible for judging the qualifications and elections of its directors, analogous to how the Vermont Constitution requires the House of Representatives to judge the elections and qualifications of its representatives. Corporations meet that responsibility by creating policies and procedures for the conduct of director elections that keep sitting directors completely out of the process of counting votes, as required by federal regulation. The House should do likewise.

Presumably the House of Representatives wishes to increase the confidence that citizens have in elections. In my view the House’s actions in the matter of the Orange-1 recount will have the opposite effect.

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