MEMORANDUM

State of Vermont
Office of the Secretary of State

MEMORANDUM
TO: Senate Government Operations / House Local Government Committees

FROM: Secretary of State Deborah L. Markowitz

RE: Review of Vermont's Election Administration and Proposals for Improvement

DATE: January 12, 2001

This past year in Florida we saw a dramatic demonstration of what can happen when our election laws and procedures are not kept up to date. Before we begin a discussion of our suggestions for reforming Vermont's election law it might be useful to review for your information why the problems we saw in Florida could never happen here.

Over ten years ago Vermont discontinued use of the Vote-a-matic machines that were the source of many of the problems in Florida. (They were only used in four Vermont communities.) Although 186 of our 246 towns still hand count ballots, the majority of our voters now cast their ballots using optical scan machines. The failure rates of these machines are less than one percent, and every rejected ballot is hand counted.

In addition to having better hardware than we saw in Florida, we administer recounts in a way that does not permit the political gamesmanship we saw during the presidential election. All of our recounts are hand counts conducted at the Superior Court by politically balanced teams. The judge is available to make a determination about any ballot that the team cannot agree on. We count every ballot where we can determine the intent of the voter - even if they do not follow the directions on the ballot and, for example circle the names rather than fill in the arrow. In addition, there is never a question of whether absentee ballots should be counted. Our absentee ballots must arrive by the close of Election Day to be counted, no matter what their postmark, and so long as they were properly requested and returned, with the proper endorsement by the voter they are counted.

Even though we have reason to feel good about our system of election administration, there are still opportunities for improvement. First, we need to provide more time between the primary and general election so that our ballots can be printed and delivered to towns on time, enabling our absentee ballots to be mailed overseas with enough time for their return by election day. We can clean up our election law repealing out of date provisions and updating others to comply with modern election procedures. And finally, we can increase penalties and put in place a statewide voter file so that we can ensure against voter fraud. Right now there is no way to determine whether voters are voting in more than one jurisdiction.

This upcoming year there will be opportunities to make some of these proposals into reality - with a new legislature in Vermont and a national mandate coming with matching funds to implement improvement in state elections administrations. I look forward to working with all of you on this important mission.

The following are some of our specific proposals for your consideration:

1. Allow More Time for Printing the Ballots. There is currently 8 days between the day that the Secretary of State's office has final information for the ballots and the day the ballots are required by law to be in the town clerk's office. This is insufficient time for the data processing, proofing, printing and shipping required. In addition, for the 2000 General Election Cycle, we had difficulty getting even one bid for each type of machine ballots in the state because many printers will not even consider bidding for work that does not allow adequate time. If we can increase the time to prepare and print ballots we should be able to obtain competitive bids for the ballot production for each style of ballot and be able to deliver the ballots to the town clerks in a timely fashion.

The best way to allow for additional time to print the ballots is by moving the Primary. Most states hold their primary in the spring. At the very least, moving the primary to the Tuesday or Thursday after Labor Day would add some extra days, which, in combination with some other changes to the law would provide an extra week to twelve days to prepare the ballots.17 V.S.A. §2351.

In the event that the legislature does not want to change the date of the primary the following changes would provide our office with an additional week to prepare and print the ballots. The following changes would at least improve our ability to obtain timely printing services.

Change the date for filing of Statements of Nomination by Minor parties and Independent candidates to 5:00 p.m., one week after the day of the primary. (17 V.S.A. §2386). Independent candidates currently have until the forty-seventh day before the election to file their petitions to appear on the ballot, this change would move the deadline back two days. Party caucuses also have until this day to file their caucus nomination in the event that no one was elected in the primary to run for a particular office. This change would move that deadline 2 days earlier. This would still give a candidate who lost in the primary a week to do an independent petition and have it certified by the town clerks. This would provide an additional two days for ballot preparation.

To change the dates for primary tie breaking procedures, the date that nominees may withdraw, and the date that nominees may correct ballot information. (17 V.S.A. § §, 2369, 2371, 2474.) Change the notice from five days to three days that the state committee must give for a meeting to choose the nominee for a state or congressional office and move the runoff elections to break ties for other offices to the third Thursday of September instead of the fourth Tuesday.) Change the last date that nominees can correct or change ballot information to the 47^th day before the general election.
Change the date that primary and general election ballots must be received by Town and City Clerks from 35 days to 30 days before the election by amending 17 V.S.A. § 2479. This will give the elections division and printers 5 more days to complete preparation, proofreading, printing and delivery of ballots. This change would leave Vermont in compliance with Federal law that requires ballots be sent to overseas enlisted men and women thirty days before the election.

Other changes in the law required to support these changes and to give additional time to prepare the Primary Ballots include:

To change the petition filing deadline for the Primary election from the 3^rd Monday in July to the second Monday of July by amending 17 V.S.A. §2356. This would give us one additional week to prepare, proof, and print the primary election ballots. We should also be able to attract more bidders for ballot printing if the time deadlines are not so short.

To amend the filing deadlines for consent forms to coincide with the filing deadline for petitions or statements of nomination by amending 17 V.S.A. §2361, 2356. This change would require that the candidate's consent form be filed on the same day as the primary petitions are due and it would require amending 17 V.S.A. §2385 (d) so that consent forms must be filed with statements of nomination. This will give more time to complete preparation, proofreading, printing and delivery of ballots. This will also be less confusing to parties and candidates because all the paperwork required for a candidate to be on the ballot will be due on the same date.

To amend the requirement that a candidate who is nominated by two or more parties file a statement designating how he or she wishes the party designation to appear on the ballot. 17 V.S.A. '2474(b). Right now a candidate for state or congressional office who is the nominee of two or more political parties must file with the secretary of state, at least 36 days before the day of the election (the day before the ballots are currently due at the town clerk's office), a statement designating for which party the votes cast for the candidate be counted for the purposes of determining whether the candidate's designated party shall be a major political party. The party so designated is to be the first party to be printed immediately after the candidate's name on the ballot. This deadline should be moved to 54 days before the day of the election.

2. To prevent voter fraud. To prevent voter fraud in Vermont we must increase the penalties for interfering with a vote and for voting more than one time. We believe it also makes sense to create a statewide voter file so that we can check to see whether a voter has voted in more than one jurisdiction. Specifically, we propose:

To increase penalties for voting in more than one town, for interfering with a voter and for attempting to cast more than one ballot for the same officer from $50 or $100 to $1000, making it a felony. (17 V.S.A. ' ' 1971, 1972, 2019.)

To allow the Secretary of State's Office to create a statewide voter file. Each town currently maintains its own checklist as provided by statute. There is no central or statewide list or file. This means that there is no way to monitor or check for voters who have been added to a checklist but not removed from all prior checklists in the state.

In order to create a state-wide voter file, the statute would need to require each Town Clerk to transmit the town's checklist to the Secretary of State within five days of some starting date and then to transmit all changes to the checklist within five days of the changes to the Secretary of State either electronically or in a form designated by the Secretary of State. In addition the Secretary of State should be given authority to request from town clerks information about names which are found on more than one checklist. For example, when duplicate names are found the Secretary of State can require each town clerk to send copies of the duplicate applications to the Secretary of State. The Secretary of State could then forward a copy of the newer voter registration application to the prior town(s) to make sure that the person is removed from the prior checklists. This should improve purging of the checklists.

Authority should also be given for a town clerk that suspect a person has voted in more than one jurisdiction in Vermont to request the Secretary of State to request other town clerks to check the suspect election entrance checklists and then if it appears that a person has voted in more than one place, to forward the information to the Attorney General for prosecution.

3. Update our absentee ballot laws. In the 2000 election nearly 20% of Vermont's voters chose to vote using an absentee ballot. This is a 50% increase from previous years. Because more people than ever are using this voting method it is important to update our procedures so that there will be consistency in every town about how to treat absentee ballots. We suggest the following changes:

Make it clear that once a ballot has been voted and returned to the clerk in the sealed envelope, it cannot be changed. Amend 17 V.S.A. §2543 to add a sentence before the last sentence to read, " Once an absentee ballot has been returned to the clerk in the sealed envelope with the signed certificate it shall be stored in a secure place and shall not be returned to the voter for any reason." Amend the last sentence to read: "All absentee ballots returned to the clerk before the close of the polls on Election Day shall be counted."

This will make it clear that an absent voter has the same opportunity as a voter at the polls to replace a spoiled ballot. To clarify that an absentee voter can return a spoiled ballot to the clerk and receive another ballot by amending 17 V.S.A. §2541 to add a section (c) to read as follows: "If an absent voter spoils the ballot, the voter can return the spoiled ballot by mail or in person to the Clerk and receive another ballot."

Make it clear that the certificate must at least be signed and the voted ballot in the sealed certificate envelope for the absentee ballot to be counted. To clarify that the absentee voted ballot must be returned in the envelope with the certificate on the envelope signed by the voter by amending 17 V.S.A. §2547 to read: "or that the certificate is not signed, that the voted ballot is not in the voted ballot envelope, or"

Make it clear that an individual can pick up an absentee ballot for himself or herself from the town clerk's office. Amend 17 V.S.A. § 2539 (a) to read that "Unless the absent voter votes in the town clerk's office, or unless the justices are to deliver the absentee ballots to the absent voter, the town clerk shall provide to the absent voter who comes to the town clerk's office a complete set of absentee ballots or the town clerk shall mail a complete set of absentee ballots to each absent voter for whom a valid application has been filed . . .." Also amend the last sentence of 17 V.S.A. §2537 to provide: "The voter may mark his or her ballots, seal them in the envelope, sign the certificate and return the ballots in the sealed envelope to the town clerk or his or her assistant, or the voter may take the ballots and return the ballots to the town clerk in the same manner as if the ballots had been received by mail. No person, except Justices of the Peace as provided in §2538, may take any ballot from the town clerk on behalf on any other person.

Protect absentee voters by not posting the list of the names and addresses of absent voters (which could make them vulnerable to robberies, etc,) but to continue to make this information available from the town clerk. Amend 17 V.S.A. '2534 as follows: "upon receipt of the valid applications the town clerk shall make a list of the absent voters. The list shall include each absent voter's name and address. A copy of the list shall be available upon request ~~posted at~~ the town clerk's office and, on Election Day, in each polling place in the town. ~~the opening of the polls and shall remain posted until all votes are counted.~~

To change the definition of "Civilian Absentee Voter." Because our law permits a person to vote absentee for any reason, the definition section of the law defining civilian absentee voter should be updated. (17 V.S.A. ' § 2531, 2103 (8)) A Civilian absentee voter@ at any Australian ballot election means a voter of the state who chooses to vote by absentee ballot, by reason of illness, injury, physical disability, religious principle, or necessary will be absent from his town of residence during the hours the polls are open, expects to be unable to attend in person at the polling place.

To change the terminology from "absentee voting" to "early or absentee voting." This would require a general change throughout the statute. This proposal was made in the last biennium and received very positive response from election officials and the public. The goal would be to encourage people to think of absentee ballot voting as simply another way to vote - rather than as a method of voting used only by those who are sick or out of town on election day.

4. To improve the voter registration process. The Federal Motor Voter Law has resulted in a lot of confusion during the voter registration process so that every election people come to the polls expecting to be able to vote, but come to find that their name is not on the checklist. To help remedy this problem we suggest the following :

To direct voters to keep a copy of their application to the checklist. Amend 17 V.S.A. § 2145 to add a provision in bold on all application forms as follows: "(6). A statement informing the applicant to: "Keep a copy of this application form. Contact your town clerk to make sure that your application has been received. Bring the copy to the polls when you go to vote. This is your proof that you have submitted an application to the checklist before the deadline for registration." Note that this change would require DMV to add an additional page to their registration by mail forms, possibly increasing their costs.

To permit the BCA to add the names of individuals to the checklist on Election Day in some circumstances. Amend 17 V.S.A. §2147 to enable individuals who show proof of registration or sign a sworn affidavit that they filled out an application to the checklist prior to the deadline to be added to the checklist on Election Day. Section 2147 can be amended by adding the following: "The list so corrected shall not be altered except by (1) adding the names of persons as directed by any superior or district judge on appeal, (2) adding the names of persons who are legal voters at the election but whose names are further discovered to be omitted from the completed checklist solely through inadvertence or error, (3) adding the names of persons who present a copy of a valid application for addition to the checklist that was submitted before the deadline for applications and who otherwise are qualified to be added to the checklist, (4) adding the names of persons who sign a sworn affidavit that they completed a valid application for addition to the checklist of that town before the deadline for applications and who are otherwise qualified to be added to the checklist; or (5) by subdividing the checklist as provided in section 2501 of this title, including the transfer of names of voters who have moved within a town in which they are already registered from one voting district within that town to another.

To permit the clerk to add names to the voter checklist with an appeal to the BCA. Amend 17 V.S.A. § 2146 or to add a new §2144b using the same language as S. 246 which was passed by the Senate last year: "(a) A town may vote at a special or annual town meeting to authorize its town clerk to approve additions to the checklist. (b) Except as provided in this section, if the town votes to authorize the town clerk to approve additions to the checklist, applications shall not be reviewed by the board of civil authority, and the applicable provisions of sections 2144, 2145 and2146 of this title shall apply to the clerk. (c) If the town clerk does not believe that an applicant meets the requirements of section 2121 of this title, the clerk shall forthwith forward the application to the board of civil authority, which shall, in a timely manner, proceed under section 2146 of this title to determine whether the applicant meets the requirements of section 2121."

To permit the BCA to remove from the checklist the name of any voter proven to be deceased by a public notice of death. Amend 17 V.S.A. '2150 as follows: "d)(2) . . . The board of civil authority may consider and rely upon official and unofficial public records and documents, including but not limited to, telephone directories, city directories, newspapers, death certificate [or other public notice of a death], tax records, any checklist or checklists showing persons who voted in any election within the last four years."

5. To give the presiding officer authority to control placement of signs outside the building on the property of the polling place on Election Day. Right now the owner of the building where the election is being conducted may control how the property is used by campaigns during the election. We suggest that 17 V.S.A. §2508 be amended to add: "(4) on Election Day, the presiding officer may control the placement of signs on the property of the polling place."

6. To simplify the process for nomination of Justices of the Peace by political parties. Amend 17 V.S.A. section 2413 generally. The election law allows an independent to become a candidate by submitting a petition signed by 30 voters or 1% of the checklist whichever is less. The parties must go through a much more involved process of caucusing and many local town committees were unable to complete the process this year. We suggest that the statute be amended to permit Justices of the Peace to be nominated by party rules and to require the town chair to certify the nomination by the statutory deadline. The parties could then decide for themselves how to nominate Justices of the Peace.

7. To clarify that the Secretary of State can reject a Certificate of Organization for a new minor political party if the "political or other name is not substantially different from the name of any organized political party." (17 V.S.A. §2313). Although this has always been the policy and is supported by language in section 2403,"Number of Candidates; Party Names", it is not clearly stated in the Chapter on Political Party organization. This will prevent voter confusion between parties.

8. To make it easier for parties to provide names of individuals to serve on the BCA. Amend 17 V.S.A. 2143(a) to take out the specific reference to the number of names a party must submit "If the board of civil authority of any political subdivision does not contain at least three members of each major political party, and the party committee or at least three voters request increased representation for an underrepresented major political party by filing a written request with the clerk of the political subdivision, the legislative body shall appoint from a list of ~~six~~ names submitted to it by the underrepresented party a sufficient number of voters to the board of civil authority to bring the underrepresented major party's membership on the board to three."

9. Update various out of date provisions of the election law:

17 V.S.A. §2497 applied to old lever or punch type machines. Because all voting machines now use ballots that are prepared by the Secretary of State's office we suggest that 17 V.S.A. §2497 be repealed in its entirety. (There is no longer any reason to provide the names of candidates to Clerks to order labels because there are no longer any voting machines in use that require labels or pages.)

To clarify the requirements for voting machines by amending 17 V. S.A. §2499 by striking paragraphs (a) and (b) which applied to machines no longer used in Vermont and by adding a new (a) to read: "a) The presiding officer with the assistance of at least two election officials can transfer voted ballots from the box attached to the voting machine to another secure ballot box or secured ballot bag whenever necessary during election day in order to allow the machine to continue to function properly."

To strike the ABrandon Training School@ from the definition of AState Institution@ since the Brandon Training School no longer exists. 17 V.S.A. '2103 (38) should be amended as follows: "'State institution' means the Vermont State Hospital, ~~Brandon Training School,~~ correctional facilities, and other similar public institutions, established or funded, or both, by public funds within the state of Vermont, not including educational institutions."

To change Aselectmen@ to selectboard, Aaldermen@ to alderboard and to add city council to the definition of Alegislative body.@ 17 V.S.A. '2103(17) should be amended as follows "'Legislative body' means the ~~selectmen~~ selectboard in the case of a town, the city council, mayor and ~~aldermen~~ alderboard in the case of a city, the trustees or bailiffs in the case of a village, the schoolboard in the case of a school district, and the prudential committee in the case of a fire district."

Change Aform@ to Aforms@ in the definition for AVoter registration application form@ to take into account that under Motor Voter there are more than one form used for voter registration. 17 V.S.A. '2103(42) should be amended as follows: "Voter registration application forms," "application forms," or "forms mean the voter registration application forms or the voter registration application portion of a motor vehicle driver's license application approved by the secretary of state under sections 2145 and 2145a of this title."

To amend 17 V.S.A. 2103(12) to make it consistent with the definition in the campaign finance laws: "'Expenditure' means a payment, disbursement, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid, for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates."

To amend 17 V.S.A. 2103(9) to make it consistent with the definition in the campaign finance laws: "'Contribution' means a payment, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid to a person for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates in any election, but shall not include services provided without compensation by individuals volunteering their time on behalf of a candidate, political committee or political party. For purposes of this chapter, "contribution" shall not include a personal loan from a lending institution."

To amend 17 V.S.A. 2103(7) to make it consistent with the definition in the campaign finance laws: "'Candidate'means an individual who has taken affirmative action to become a candidate for state, county, local or legislative office in a primary, special, general or local election. An affirmative action shall include one or more of the following:

(A) Accepting contributions or making expenditures totaling $500.00 or more; or

(B) Filing the requisite petition for nomination under this title or being nominated by primary or caucus; or

(C) Announcing that he seeks an elected position as a state, county or local officer or a position as representative or senator in the general assembly."

To amend 17 V.S.A. '2103(24) by adding Award@ in the definition of Apolitical subdivision@: "'Political subdivision' means any county, municipality (including cities, towns and villages), school district, fire district, water, sewer or utility district, ward and any consolidation of the foregoing entities authorized under the laws of this state."

To amend 17 V.S.A. '2122 as follows: "A person shall not gain or lose a residence solely by reason of presence or absence while in the service of the state or of the United States; nor while engaged in the navigation of the waters of the state or of the United States or on the high seas; nor while in a hospital, nursing home, or other health care facility; nor while confined in a prison or correctional institution; nor while a member of a veterans' home; nor while a student at any educational institution; nor while living outside the United States. ~~Members of the Vermont veterans' home in the town of Bennington may vote in the town of Bennington in all elections but this right shall not affect their residence for any other purpose~~."

To amend 17 V.S.A. '2141 to reduce the number of places checklists are to be posted from two to one in addition to the list posted in the clerk=s office: "At least 30 days before any election the town clerk shall cause a copy ~~copies~~ of the most recent checklist of the persons qualified to vote to be posted in one ~~two~~ or more public places in the town in addition to being posted at the town clerk's office . . .."

To repeal 17 V.S.A. '2498 since this law is relevant only to lever machines which are no longer used in Vermont.

To amend 17 V.S.A. '2493 by deleting subsection (b) as it was only relevant to machines no longer used in Vermont and by adding a new subsection (b) to read:" . . (b) . Each voting machine shall be tested using official ballots that are clearly marked as "test ballots" at least ten days prior to election."

To amend 17 V.S.A. '2571 as follows: "In towns that have exit checklists, before a voter's ballots are deposited, he or she shall again announce his or her name to the election officials attending the second certified copy of the checklist. A mark shall then be placed next to his or her name upon the checklist, ballots shall be deposited and he or she shall proceed immediately outside the guardrail by the exit and shall not again enter within the guardrail unless he or she is an election official."

To amend 17 V.S.A. '2456 as follows: "Notwithstanding the preceding sections of this subchapter, no person shall serve as an election official in any election in which his name appears on a ballot of the Australian ballot system as a candidate for any office unless he is the only candidate for that office, or unless the office for which he is a candidate is that of moderator, justice of the peace, ~~constable~~, town clerk, clerk-treasurer, ward clerk, or inspector of elections. . . ."