Inconclusive Recounts Have Two Vermont House Races In Question

Dec 9, 2016

It’s been over a month since the General Election, but there are still two Vermont House seats yet to be determined. And election officials in the affected districts are struggling to comply with relatively new language in the state law regarding recounts.

On Election Day, most Vermont voters insert their ballots into a vote tabulator machine. The machine scans each ballot. Then, at the end of the day, the tabulator prints out a report stating how many votes each candidate received.

If the election is very close, a candidate can ask for a recount. For the past couple years, Vermont law has dictated that recount must be done using a tabulator.

Jim Pelkey has been Franklin County Clerk for 17 years. He’s presided over several recounts, both counting by hand and using vote tabulators. He says he thinks the tabulators are an improvement over hand counts.

"I think you're eliminating the potential for human error that you would have by hand counting and hand recording the totals," says Pelkey. "I think it's faster and more accurate, in my opinion."

Pelkey can recall contested statewide races where it took days to recount all the Franklin County ballots by hand. And he thinks the vote tabulators significantly speed up the process.

Ballot tabulators like this one are used in all Vermont towns with at least 1,000 voters.
Credit Amy Kolb Noyes / VPR

"I think it's a good system," he says. "I think the hand count is good too, but hand counting ballots, it would have taken us probably twice as long to count the ballots as it did through the tabulator."

Last month Pelkey oversaw one of three recounts in races for the Vermont House. In Franklin County, the results were conclusive and Progressive-Democrat Cindy Weed was elected over incumbent Republican Larry Fiske.

The two other recounts happened in Windsor and Orange counties. And those two races have yet to be determined. With just weeks to go before the start of the legislative session, inconsistencies in recounting procedures are being examined in both races.

This week, a judge in Windsor County ordered a second recount in the race between Democratic incumbent Sarah Buxton and Republican challenger David Ainsworth. Election Day results had Buxton on top by three votes, but a tabulator recount resulted in a tie with exactly 1,000 votes apiece.

After several hours of testimony on Wednesday, the parties agreed the status of two ballots because couldn’t be determined. The ballots in question were not clearly marked and it was not clear if the machines had actually counted them.

Windsor County Clerk Pepper Tepperman, who presided over that recount, declined to comment. But Valley News reporter Matt Hongoltz-Hetling was in the courtroom.

"It still appears that some decisions were made in the moment in a way that was not standardized and, in this case at least, led to a recount that people didn't feel great about," he explains.

After an election, ballots are sealed in special bags and are only unsealed in the case of a recount or audit.
Credit Amy Kolb Noyes / VPR

Meanwhile, in Orange County's two-seat Orange-1 district, Republican Rep. Rodney Graham won one seat. And County Clerk Lisa Eastman says the race for the second seat is being disputed because of a few questionable ballots. Republican Bob Frenier's eight-vote margin over Progessive-Democrat Rep. Susan Hatch Davis shrunk to six votes in a tabulator recount.

"And there are three ballots, which are six votes, that are not added to that because they're in dispute," says Eastman.

Hatch Davis has petitioned the court for a second recount. And she's asking that the next count be done by hand.

"My understanding is that, by statute, recounts are done by tabulator, and that's pretty clear." - Orange County Clerk Lisa Eastman

Vermont's election laws were updated in 2014, and for the first time the law spelled out that recounts should be conducted using vote tabulators. But towns with under 1,000 voters are not required to use tabulators. And because of that, Eastman says, when it came time to do a recount there were only a few local election officials with experience using the tabulators.

"My understanding is that, by statute, recounts are done by tabulator and that's pretty clear," she says. "But in this race, five of the six towns were counted by hand in the original election because they don’t use tabulators."

The tabulator prints out a report listing votes cast for each candidate, as well as the number of write-ins, over-voted and under-voted ballots.
Credit Amy Kolb Noyes / VPR

Towns that don't use tabulators still use ballots that can be scanned provided by the Secretary of State's office. So those original ballots were read by tabulators in the recount.

Eastman says a judge will hear Hatch Davis' request next Friday.

“The 16th, I believe the judge hopefully will determine whether or not we will have another recount," she says, "and if there was any conduct that would rise to the level of not having this first recount count."

The 2017 legislative session officially gets underway January 4. Election officials hope, by then, they’ll be finished counting ballots.