Editor’s note: This commentary is by Deborah Bucknam, a St. Johnsbury-based attorney and former Republican candidate for state attorney general. It was first published at VTDigger.
Secretary of State James Condos’ principal obligation is to ensure Vermont’s constitutional mandate “that all elections ought to be free and without corruption” is enforced. Secretary Condos’ directives concerning voter eligibility allow non-residents to vote in Vermont elections, thereby suppressing Vermont residents’ voting power.
Voter suppression can take more than one form. It can mean repressing, by various mechanisms, an eligible voter’s right to vote, as occurred most egregiously in the South during the Jim Crow era. It can also mean a dilution of a voter’s vote. In 1964, the United States Supreme Court held that the U. S. Constitution prohibited gerrymandering districts to give votes in one district more weight than votes in another district, the decision often characterized as requiring “one person one vote.” In that decision, the U.S. Supreme Court stated: “The right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533 (1964)
Dilution of the weight of a citizen’s vote need not be merely as a result of impermissible gerrymandering. It can occur when those not eligible to vote are allowed to vote, thereby diluting the weight of eligible voters’ franchise.
Recent decisions by Essex County Superior Court illustrate this dilution starkly: As a result of a complaint filed by Victory town resident Tracey Martel, Judge Thomas J. Devine ordered seven voters removed from the Town of Victory voter checklist, reversing the Victory Board of Civil Authority’s decisions that those individuals were eligible to vote. Four other nonresident voters were removed from the checklist as a result of Ms. Martel’s complaint, totaling an astonishing 13 percent of voters removed from the town voter checklist. The reason for their removal: Not one of them was a resident of the Town of Victory.
Those non-residents’ votes were the deciding factor in the four-time defeat of the local town budget in 2017. How do we know this? Because some of the non-residents voiced their opposition to the town budget, and, more tellingly, a town official allied with the nonresidents, in calculating the results of the last budget vote, actually wrote on the checklist how people voted — and all the non-residents voted against the budget. (How that official knew how people voted is a question that deserves investigation.) Moreover, non-residents supported the election of town officials whose conduct has resulted in the town being placed on probation with the Vermont League of Cities and Towns, and put the town at risk of losing its municipal insurance. Town residents’ votes have been diluted — and therefore suppressed — by the voting power of non-residents.
One town resident, Tracey Martel, assumed responsibility for getting the voters removed from the checklist in Victory, with virtually no help from the secretary of state. Indeed, several non-residents said their claim to eligibility to vote was based on the direct advice of the Secretary of State’s office, even though they were not residents of the Town of Victory. The secretary of state has demurred on these claims, but the secretary of state’s website provides that individuals with a subjective intent to move to a town are eligible to vote. The website states, “The law creates a subjective standard.”
That is not what the law provides. Judge Devine stated in his decisions: “ …expressed intent must be viewed in light of the other objective evidence.” Thus, the secretary of state is incorrect when he states that the law “creates a subjective standard.”
The non-residents claimed they intended to live in the town of Victory. They either owned a dwelling in town, or were an adult child of an individual who owned a dwelling in town, or rented their dwelling to a third person. The court determined that having such a connection and a stated intent was insufficient to establish residency.
The court’s decisions directly impact another erroneous directive of the secretary of state. The secretary’s website states that any college student from out of state may vote in Vermont “as long as the voter considers Vermont to be his or her primary residence.” Again, the secretary of state’s interpretation of the law is erroneous, because what the voter “considers” is insufficient. Judge Devine ruled that domicile requires residency “coupled with an intention of remaining there indefinitely,” and, as indicated above, that “intent” also requires objective evidence to support the stated intent.
The Vermont Agency of Education agrees with Judge Devine. In a ruling in January against Brooke Demers and her daughter, Secretary of Education Rebecca Holcombe ruled that Ms. Demer’s daughter was not eligible for in-town tuition to St. Johnsbury Academy because Ms. Demers, even though she actually lives and owns property in St. Johnsbury, presented “no evidence … to indicate that [Ms. Demers’] intention to live in St. Johnsbury extends beyond her children’s completion of high school. … Without some compelling demonstration or statement that [Ms. Demers] intends to remain in St. Johnsbury indefinitely, the evidence supports [St. Johnsbury’s] contention that [Ms. Demers] does not intend to stay in St. Johnsbury indefinitely.” The Agency’s ruling acknowledged that Ms. Demers intended to remain in St. Johnsbury for the next six years, until her younger child graduated from high school. The agency concluded that residing six years in St. Johnsbury was insufficient to establish residency for tuition purposes, because of the lack of evidence that the residency would be “indefinite.” By Judge Devine’s and Secretary Holcombe’s rulings, most college students would not be eligible to vote in their college towns because most of them would be unable to provide “compelling evidence” that they intend to remain there beyond their college years.
It is time for the secretary of state to provide accurate guidance on voter eligibility and ensure that each Vermont resident’s vote is not suppressed by the voting power of non-resident voters.