Federal judge denies halt to Vermont’s mail-in ballot expansion

BURLINGTON, Vt. — A federal judge on Wednesday dismissed a lawsuit against Vermont Secretary of State Jim Condos aimed at preventing mail-in ballots from being sent automatically to all active, registered voters beginning next week.

Judge Geoffrey Crawford, chief judge of the U.S. District Court for the District of Vermont, heard a case Tuesday over Zoom in which an attorney for five plaintiffs argued that legitimate votes would be diluted if the new universal vote-by-mail system in Vermont leads to mailing errors, mistaken votes or even voter fraud.

During the hearing, attorney David Warrington said one of the plaintiffs failed to receive a ballot for the primary election, and he added that an inaccurate checklist, lack of signature verification, voter errors and outright fraud have the potential to disenfranchise voters on a mass scale.

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Geoffrey Crawford, chief judge of the United States District Court in Vermont

Crawford, a former a Vermont Supreme Court justice from Burlington, dismissed the case on the grounds that individual plaintiffs had not yet been injured and therefore didn’t have standing to bring a lawsuit against Condos.

“The ‘injury in fact’ must have been ‘concrete and particularized’ and also ‘actual or imminent,’ not conjectural or hypothetical,'” he wrote in his order.

The judge said the plaintiffs lacked standing because if voter mistakes or fraud happen, those instances will not injure the plaintiffs directly, but would dilute the total number of votes cast by all voters in a fractional way.

“A vote cast by fraud or mailed in by the wrong person through mistake has a mathematical impact on the final tally and thus on the proportional effect of every vote, but no single voter is specifically disadvantaged,” Crawford wrote in the 11-page ruling.

According to the Secretary of State’s office, ballots for the Nov. 3 election will be sent out Monday, Sept. 21 and should arrive at voters’ addresses any time after that date through early October. Voters who do not receive a ballot by Oct. 1 are encouraged to contact their local town clerk to get one.

Attorney Deborah Bucknam, a former candidate for attorney general who is frequently at the center of constitutional fights in Vermont, was the lead lawyer for the plaintiffs. But on Tuesday it was Warrington, a Washington, D.C.-based attorney, who did most of the talking for the group.

Warrington said the complaint didn’t contest whether mail-in ballots are a good way to vote. Instead, he argued that automatically sending ballots to all registered voters lacks the necessary protocols to protect election integrity and voters’ rights.

“He’s changing the law on the fly,” Warrington said of Condos.

Warrington said if an individual voter alleges facts about the election system that place him or her at a disadvantage, that provides legal standing for this case. The question of standing was the primary subject of debate throughout the hearing Tuesday.

The five plaintiffs in the case were Tracey Martel, Robert Frenier, Brian Smith, Raoul Beaulieu and Mary Beausoleil. Smith is a current state representative, Frenier is a former representative, and Martel is the town clerk for Victory, a town that has been at the center of election controversies over the years regarding its checklist.

RELATED: Voter fraud in Victory, Vermont

Philip Back, the attorney representing the Secretary of State’s office, argued that mistakes will happen, but voter fraud should not.

“Inevitably, someone may not get a ballot if it’s lost in the mail or maybe there is an address change — we’re not going to say that there’s not going to be any mistakes,” he said. “What’s important is that nobody votes twice.”

In Georgia, Secretary of State Brad Raffensperger confirmed that at least 1,000 Georgians voted twice in the state’s primary. The individuals used absentee ballots to vote remotely and then voted again in person on election day.

Warrington said that the postcards sent out by Condos’ office in July to notify people about the mail-in voting policy raised red flags concerning the integrity of the voter checklist.

“It demonstrated without a doubt the voter rolls used by the Secretary of State are inaccurate,” he said to the court. “Some people are going to get ballots that shouldn’t get them; other people aren’t going to get ballots that should get them.”

The plaintiffs in the case provided multiple examples for the court to consider, according to Warrington.

In support of the plaintiffs, Scott Gessler, Colorado’s secretary of state from 2011 to 2015, submitted expert testimony to the court to warn against Vermont’s mail-in system. Gessler had overseen his state’s transition to a vote-by-mail system.

“Vermont is not ready for an all-mail ballot system,” he wrote. “It does not have a signature verification to ensure election integrity, nor does it have cure procedures that would prevent inadvertent disenfranchisement resulting from voter mistakes. And Vermont does not have accurate mailing addresses for many voters. … The state’s plan to send a mail ballot to every single active voter creates an unacceptable risk of vote dilution and disenfranchisement.”

Judge Crawford dismissed the case without prejudice, meaning plaintiffs are free to return to the court with a new complaint in the future.

Michael Bielawski is a reporter for True North. Send him news tips at bielawski82@yahoo.com and follow him on Twitter @TrueNorthMikeB.

Image courtesy of Peking University School of Transnational Law

7 thoughts on “Federal judge denies halt to Vermont’s mail-in ballot expansion

  1. This is a reasonable ruling and True North is to be applauded for its comprehensive report on the issue, unlike the one-sided article in VT Digger that simply emphasized the law suit as an attack on election law without describing the actual ruling.

    The reason the suit was thrown out was because it didn’t specify actual damages, because mail-in voting has yet to occur. We don’t prosecute people or institutions just because someone thinks they will be damaged by them. For example, every gun owner could be sued for their ability to harm others, whether or not any harm ever occurred, simply because they own a gun.

    This suit was dismissed “without prejudice, meaning plaintiffs are free to return to the court with a new complaint in the future.” This means Vermont Secretary of State Jim Condos can still be sued, if, in fact, certain specific damages can be proven to have resulted from mail-in voting. In other words, if voter fraud does occur because of mail-in voting, former Republican state representative Bob Frenier, Rep. Brian Smith, R-Derby, and Victory Town Clerk Tracey Martel, who, among others, brought the suit, have kept their powder dry.

    • The judge’s ruling is a big deal. Yes, ‘Dem/Prog/Libs’ will likely win. But if voter fraud can be shown to have resulted from mail-in voting, the judge, by dismissing the case without prejudice, has affirmed that Condos can be held accountable for that fraud.

      • I get what you mean Jay, but how much history do we have up here of cleaning up voter fraud to the degree we all know it goes on.

        I would certainly not put all my eggs in THAT Basket.

  2. I could go along with this ruling if we changed the penalty for voter fraud to
    DEATH by hanging. Knowingly fraudulent voting should be treated same as
    terrorism against our Representative Republic.

  3. We all know the mail-in ballots is a scam, just listen to the Democrats and there
    ploy to stall the results until ” all ” ballots are counted, no matter how long it takes
    and it’s, we already have a process and dates to follow, if you miss the deadline
    well, it sucks to be you !! It’s pretty pathetic that even a Judge can’t see it !!

    They say that ” VOTING ” is one of the most important privileges a citizen can
    have, but this year, it’s being treated like a ” Publisher Clearing House ” bulk
    mail why ??? ………….. we know why, and it’s by hook or by crook !!

    Vermonter’s, if you didn’t request an absentee ballot then get a mask, some hand
    sanitizer and a pen and go VOTE, make your’s count…………..

    Wake up people, they’ll steal it if you let them !!

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