How A Recount In The Vermont House Turned Into A 'Comedy Of Errors'

Feb 22, 2017

There was some drama in Montpelier Wednesday morning as lawmakers prepared to launch a two-day recount process for the results of the November vote on the representatives for the Orange -1 district.

A ballot bag had been previously unsealed, which meant the recount —which would have actually been the second recount for this particular race — was called off. This meant that Republican Bob Frenier prevailed.

It's been a complicated and politically charged process. Here's what happened:

The Election

In November, voters in the towns of Orange, Williamstown, Washington, Corinth, Chelsea and Vershire had to choose two of four candidates to represent them in the Vermont House of Representatives. The candidates were:

  • Rodney Graham, a Republican who took first place in the election with over 2,000 votes and won the first of the two available legislative seats
  • Bob Frenier, a Republican who received 1,853 votes after the first tally
  • Susan Hatch Davis, an incumbent Progressive, who received 1,845 votes in the first count
  • Adam DesLauriers, a Progressive who received just over 1,000 votes

The First Recount

Graham clearly won one of the seats, and DesLauriers clearly didn't win the other, but officials conducted a recount to double-check the vote counts for Frenier and Hatch Davis, because only eight votes separated the two.

That recount, which happened in December, found that the original tally was off by one vote, but still confirmed Frenier as the winner of the second House seat by a margin of seven votes.

The Second Recount, Which Never Happened

After the first recount, Hatch Davis asked a judge in Washington County to force another recount. But the judge refused to grant one, saying there was not enough evidence that another recount would lead to a different result.

Then, Hatch Davis asked the Legislature to use an obscure provision in the Vermont Constitution that allows the House of Representatives to launch a recount for elections of state representatives.

Lawmakers were convinced by Hatch Davis' argument that another recount is worthwhile in large part so that they could visually inspect the ballots before feeding them into voting machines. That way they could confirm that the voting machines weren't mistakenly awarding or withholding votes from a certain candidate because of errant markings on ballots.

Proponents of the recount pointed to other examples of recounts in which ballots that were clearly intended to give a vote to one candidate were misread by machines tabulating the results, causing some of those votes to be assigned to a different candidate.

Two dozen lawmakers convened in a Statehouse meeting room Wednesday morning to conduct a recount that ended up being called off.
Credit Peter Hirschfeld / VPR

In setting up the recount, the Legislature developed strict rules to protect the integrity of the process. The rules were designed for this specific recount, but they had a fatal flaw related to the way election results have been sealed and maintained since the election.

One of the bags containing ballots from the Town of Chelsea was unsealed in December after a town official discovered the town's voter list had been accidentally sealed into the bag. With permission and input from the Secretary of State's office – which manages elections in Vermont – the town official unsealed the bag, removed the voter checklist and resealed it.

There's no allegation that anything improper happened with the ballots in that bag, but the simple act of unsealing and resealing the bag is something the Legislature's newly designed rules do not allow. When lawmakers found out that the bag had been unsealed, they called off the recount and declared Frenier the winner based on previous vote counts.

In effect, the rules in place for the recount were already broken before they'd been created. Lawmakers simply didn't know about the ballot bag having been opened in December when they made the rules.

'A Comedy Of Errors'

Not even Frenier, whose victory was confirmed by the recount, was happy with the way things unfolded.

"It was a comedy of errors from start to finish. The allegations that the judge threw out in court, they were all bullfeathers," Frenier said.

Frenier added that he wishes there had been a recount because it would answer any remaining doubts about the results of the election, but he said the overall process has exposed flaws in the Legislature’s procedure for recounts that might need to be addressed with legislation.

Republican Rep. Robert Frenier said the process used to conduct the recount in his Orange County House race was a 'three-ring circus.'
Credit Peter Hirschfeld / VPR

Lawmakers who supported the recount efforts blamed the Secretary of State's office for not informing them about the unsealed ballot bag.

Maida Townsend, the Democratic chairwoman of the House Committee on Government Operations, had this reaction:

"That we don't know this until the day before we're supposed to start a recount, it raises all kinds of questions, not the least of which … is what else might be out there that we don't know about," she said.

Elections officials said that such things happen regularly and that it simply didn't seem worth mentioning in testimony before lawmakers earlier this year, and it's worth mentioning again that there are no allegations or evidence that anyone intentionally or knowingly jeopardized election results.

Lawmakers, who are by and large dissatisfied with how this process unfolded, are considering legislative changes to address problems they found in the process of planning Wednesday's recount-that-wasn't.