Editor’s note: This commentary is by H. Brooke Paige, of Washington. He is a candidate for secretary of state and attorney general.
In March, the Vermont Legislature was concerned with the dangers of the evolving coronavirus that experts said could sweep the state infecting tens of thousands of Vermonters and killing hundreds.
As a result of their concerns, the Legislature took several emergency actions to mitigate the spread of the virus, including the passage of Act 92 on March 30 which stated “It is the intent of the general assembly that, if the coronavirus disease 2019 (COVID-19) pandemic continues its expected spread in the state of Vermont, the citizens of Vermont should be able to protect their health, safety, and welfare while also continuing to exercise their right to participate in elections in order to maintain our democratic institutions. Accordingly, this act sets forth temporary election provisions in response to COVID-19.”
Act 92 stated that Vermont’s Secretary of State Jim Condos, “is authorized, in consultation and agreement with the governor, to order or permit, as applicable, appropriate elections procedures for the purpose of protecting the health, safety, and welfare of voters, elections workers, and candidates in carrying out elections, including the following: 1) requiring mail balloting by requiring town clerks to send ballots by mail to all registered voters; 2) creating early or mail ballot collection stations; 3) permitting municipal clerks to process and begin counting ballots in a 30-day window preceding the day of an election; 4) permitting drive-up, car window collection of ballots by election officials; 5) extending the time for municipal clerks to process and count ballots, and 6) extending voting hours on the day of an election.”
The legislation further states: “For any temporary elections’ procedure, the Secretary of State orders or permits under this section, the Secretary shall adopt any necessary corresponding procedures that ensure the public can monitor polling places and the counting of votes.”
Vermont’s Legislature included two safeguards in Act 92 when they gave Secretary Condos virtually unfettered control over the 2020 election process; it requires the following: 1) “consultation and agreement with the governor” over changes made to the election process and 2) if the Coronavirus continued to spread, the secretary would implement “mail balloting by requiring town clerks to send ballots by mail to all registered voters” vote by mail (VBM) mass-mailing consistent with existing election law – 17 V.S.A. § 2479, § 2531 and § 2532. Existing Vermont election laws and Act 92 assigns the responsibility for distributing early and absentee ballots to the town (and city) clerks since they are the officials most competent to identify those who are qualified to vote in their town and protect the voting process from mistake and fraud.
By June, Secretary of State Condos had become impatient with the governor, who desired to learn whether the expanded promotion of Vermont’s current early and absentee voting, as well as in-person voting in the primary election using enhanced protections, including masks, use, social distancing and frequent disinfection of environmental surfaces – would be sufficient to protect the community without interfering with voting. The secretary complained to the Legislature and they revised Act 92 through the passage of Act 135 which changed the governor’s role from “being consulted with and agreeing” to the election changes proposed to merely be consulted before changes were implemented – eliminating the governor’s responsibility to agree (or disagree) with the changes. By eliminating the previously required approval by the governor’s approval, the Legislature removed one of their two safeguards intended to protect the election process.
An important concern connected with the VBM mass-mailing of ballots is the increased opportunity for fraud relating to “vote harvesting” by partisan canvassers employed by political and advocacy groups to go door-to-door attempting to collect the ballots that have been sent out to every registered voter – often these canvassers offering to assist reluctant and unenthusiastic voters in filling out their ballots and whereby influencing the voter’s decision, a violation of 17 V.S.A. § 2017.
During the debate over Act 135, there was a substantial discussion over concerns about “vote harvesting” activities, if a Vote by Mail mass-mailing scheme were to be implemented. Concerns over “Vote Harvesting” were debated and voted on in an attempt to include language that would limit or prevent such activity.
The Legislature, dominated by Democrats and Progressives who believe “vote harvesting” improves their political fortunes, considered and rejected three amendments that would have restricted the collection of ballots by third parties: S.J. 682—684 (Vt. June 3, 2020) with H.J. 1160-61 (Vt. June 10, 2020) and H.J. 1181-84 (Vt. June 12, 2020). The secretary of state has not made any meaningful effort to mitigate the problem of “vote harvesting” on his own.
For years, Vermont’s voter checklists have been the subject of concern since they do not provide local election officials with meaningful information to confirm the identity of individuals who vote in the state’s elections. Vermont’s checklists do not contain information such as signature samples, voter’s date of birth, birthplace, mother’s maiden name, partial social security or driver’s license numbers – that would assist election officials to authenticate a voter’s identity. This becomes especially important when early and absentee ballots are returned by mail or are brought in to the town clerk by others such as vote harvesters.
Ideally, an effective voter ID system would eliminate this problem, however, Secretary of State Condos has vehemently opposed any attempt to create a voter ID plan for Vermont on the speculative and specious grounds that voter ID plans promote “voter suppression” with the implementation of the VBM mass-mailing scheme, the lack of voter ID becomes more problematic.
In recent weeks, Secretary Condos has announced that his office has hired an out-of-state mailing contractor to assemble, process, and send out the vote by mail mass-mail ballots to every voter whose name appears on the town checklists, except those who have had their registration challenged. This decision by Secretary Condos violates the explicit instructions from the Legislature in both Act 92 and 135 “requiring town clerks to send ballots by mail to all registered voters.” His unauthorized unilateral decision removes the second protection against mistake, error, and fraud contemplated by the Legislature.
The use of an outside contractor for mailing the early and absentee ballots from an out-of-state location increases the likelihood of ballots being lost or misdirected, having the incorrect ballots sent the voter (Vermont has over 275 different ballots unique to each district and town) as well as ballots being sent to deceased voters, forwarded to voters who have moved away or sending duplicate ballots to voters who have changed their names, through marriage or for other reasons, and both names remain on the voter checklist.
The current VBM mass-mailing scheme creates the “perfect storm” where the lack of security in the mass-mailing of ballots by other than the authorized local town clerks, the reliance on the troubled U.S. Postal System for delivery of ballots in both directions, the lack of a reliable way to authenticate the returned ballots and permitting “vote harvesters” to collect and return ballots all combine to create the worst possible conditions for errors, omission, and fraud that will overshadow the operation and results of the Election process.
Scott E. Gessler, the former the Colorado secretary of state who oversaw Colorado’s transition from in-person voting to a statewide vote-by-mail system testified in Vermont Federal District Court that “Vermont is not ready for an all-mail ballot system. It does not have signature verification to ensure election integrity, nor does it have curative procedures that would prevent inadvertent disenfranchisement resulting from voter mistakes. And Vermont does not have accurate mailing addresses for many voters.
Because of these problems, the state should not implement an all-mail voting system for the 2020 general election.