The Brattleboro Board of Civil Authority will meet on Wednesday, March 16 at 2:00 p.m. in the Selectboard Meeting Room for the purpose of conducting a hearing and accepting testimony relating to the conduct of the March 10 recount for select board race. If the board determines that any violations of the recount procedures occurred and that they may have affected the outcome of the recount, a new recount shall be ordered.
Please feel free to contact me if you have any questions. Annette
Annette L. Cappy
Brattleboro Town Clerk
230 Main Street, Suite 108
Brattleboro. VT 05301
acappy@brattleboro.org
ph 802-251-8129
fax 802-257-2312
Good
Nice to know there’s overseeing going on.
recount
I spoke to Town Clerk Cappy yesterday, Monday afternoon. At that time she seemed to have no doubt that she hadn’t followed procedure delineated in state law. Consequently she felt that if following the letter of the law was a criterium for determining the legitimacy, which she believed it was, it was her obligation to direct a recount. Normally a second recount may only occur under the order of a Superior Court judge. Apparently, from what I see in this warning, in the interim the Town Clerk has received advice which has resulted in a change in the way she is proceeding. As I read it she is now asking the Board of Civil Authority to determine if she proceeded properly. It also appears that the BCA may determine that even if procedure was not fully in accord with state election law the deviations would not likely change the results of the Selectboard election and a recount may not be ordered by the Town Clerk. Presumably it then returns to standard procedure which is that the recount must be ordered by a judge.
Last Thursday I spoke briefly with the state Director of Elections, Will Sennig. He rather adamantly and forcefully asserted that the voting machines do not make mistakes. If that is true at least two things are possible. The Board of Civil Authority, whose members did the recount, made all nine mistakes. Or, the machine could simply not read an incorrectly marked ballot. An example: someone underlines the name of the candidate they want rather than darkens the appropriate circle. The machine will see the blank circle but not the underlined name and read it as a non-vote. An actual person looking at the paper ballot will see the underlined name, or whatever marks may have been made, and be able to reasonably determine the voters intent.
This is tricky business. To what extent should the letter of the law be the final word if the results of the questioned action taken achieves the purpose of the law? The Town has become almost insanely fearful of violating the strictest interpretation of the open meeting law even when the chance of harm coming from most violations is about equal to the chance of Mt Wantastiquet blowing away in the next windstorm. Now the Town wishes to relax that approach in the matter of an election recount.
Another consequence of all this is that the threshold for recounts might need to be expanded. The number of our mistakes was about .25%. On a local level we can see that only amount to 6 to 10 errors even in a heavy local turnout. On the state level it becomes significant. 120,000 votes cast might have an error of 300. Actually it isn’t even known what the average number of misreads may be. Perhaps the nine errors in our election was actually low. We only know when we recount which is rather seldom.
Also
I asked today… : )
Avery Schwenck requested the recount. At issue are whether there should be teams of 3 or 4 people counting, and whether they should count once or twice.
State statute says one thing, and recent advice from the state, she said, was to the contrary. By having this new meeting they can be certain to avoid discrepancies.
If all goes well, a new recount will be held Thursday.
I really find this whole
I really find this whole process pretty fascinating. This was the first time I’ve had the chance to vote for the Selectboard since moving to Brattleboro, and it’s damn near riveting to watch everything unfold.
I do hope there is a recount, since it has been admitted that the letter of the law was not followed. Every letter counts, just like every vote, as Mister DeGray knows, or he never would have had reason to ask for a recount. Rock on, system.
Recount Statute
The Vermont Law which governs the recount procedure for a local election is Title 17 § 2685a This Statute is quite detailed and precise. It includes provisions for double checking. It provides for there to be a consensus of representatives of opposing candidates in tallying the votes.
Below I am pasting a link to Title 17 Section 2685a. Procedure for recount.
From what I have read it appears to me that the procedure that the town clerk described was incorrect. According to the town clerk, the procedure used in last week’s recount was as follows:
“JPs and possibly a few others will be doing the counting. We will have teams of 3. One team member will examine the ballot and read the vote to the second team member who will record the vote on a tally sheet form. The 3rd member will observe and monitor that what was read from the ballot is correct and that what was recorded was correct.”
While the procedure that was used does provide for a double check of the tally person and the recorder, the 3rd member of the team (the observer) is doing double-duty, having to verify both that the vote called out by the tally person is correct, and also that the vote recorded is correct. I was not there, but it sounds to me like the cartoon image of someone’s head going back and forth while they watch a tennis match. The Statute provides for separation of these two functions so that one person observes that the calling out of the tally is correct, and a different individual watches that the vote is recorded correctly.
In addition, the person examining and calling out each vote is a representative of one candidate, while the person recording the vote is a representative of the opposing candidate. And then, as a double-check, the teams switch roles, and there is a second count.
My Comment:
I have known Town Clerk Annette Cappy for 20 or 30 years, and totally trust her fairness. I have no doubt that she acted in good faith, unaware that the legislature has updated the recount procedure.
While the single count by a 3 person team may have resulted in an accurate count, the legislature clearly believed that a consensus of two, 2 person teams, each from an opposing camp would be more trustworthy. Clearly the legislature did not believe that a single count by a 3 person team (with one of them doing double-duty, trying to verify both the called-out tally, as well as the written recording of the tally) would be impeccably accurate.
Regardless of who likes or dislikes the outcome, I feel certain that a process whose integrity is beyond question will put to rest any doubts, and be more unifying to the town, and therefore I hope that the Board of Civil Authority will order a correct recount. I see no valid reason why either candidate would oppose a new recount, done correctly.
SK-B
_________________
Here are the parts of the Statute which are most relevant to the process, followed by the entire text of Title 17 Section 2685a.
Subsection (a) (4) requires at least 2 teams, each with two people: One team consists of a caller and observer; the other team consists of a tally person and double-check person. Each team is composed on the representatives of a candidate. In the recent recount, one team should have consisted of two representatives of Richard DeGray, and one team should have consisted of two representatives of Avery Schenk.
Subsection (e) describes a first count. The caller, examines each ballot, and calls out the vote. The tally person makes a written record as these votes are being called out. Thus the person calling out each vote represents one of the candidates, while the person making the written record represents the other candidate.
Subsection (f) describes a second count. This second count is done the same way as the first count, except that the teams switch roles.
There are other parts of this lengthy statute which discuss how to handle differences of opinion among these 4 people, but what I have describe above is the heart of the procedure.
Subsection (c) describes how the checklist should be counted, which is also important.
http://legislature.vermont.gov/statutes/chapter/17/055
Title 17 § 2685a. Procedure for recount
(a) Storage of ballots; assignment of duties.
(1) The town clerk shall store all ballots, still in their sealed containers, in his or her vault until the day of the recount.
(2) The presiding officer shall supervise the recount.
(3) The board of civil authority shall appoint a sufficient number of impartial assistant election officers to perform appropriate tasks that are not practicable for the board of civil authority to perform. Each assistant election officer shall be appointed and sworn as set forth in section 2454 of this title.
(4) The presiding officer shall assign members of the board of civil authority to teams of at least four persons, consisting of one caller and one observer, representing different candidates, and one tally person and one double-check person, representing different candidates. Any additional team members shall be additional observers and double-check persons who shall be assigned to ensure that each candidate has one person assigned as either a caller or an observer and one person assigned as either a tally person or a double-check person. One team shall be designated as the presiding officer observer team, which shall perform only the functions established under this section for that team.
(5) The board of civil authority shall use fresh seals, manila tags, tally sheets, double-check sheets, summary sheets for each polling place, master lists for the entire election to be recounted, and other appropriate material provided by the Secretary of State.
(b) Preparation for recount.
(1) Before the recount begins, the presiding officer shall explain the recount procedures which are to be followed and shall answer questions relating to such procedures.
(2) The recount teams established shall recount the contents of one container before another container is opened and shall recount the contents of all the containers relating to one polling place before moving to those of another polling place.
(3) For each polling place, the number of containers shall be counted and recorded on the master list.
(4) Before opening, each container shall be inspected, and if no tag is present, replacement manila tags shall be affixed, specifying the date of election and the name of town and polling place. Likewise, each seal shall be examined to see if it is intact, and the presiding officer shall attach to any bag with a defective seal a tag stating that the seal was defective and containing the information which was contained on the defective seal.
(5) Uncounted containers shall be kept in one part of the room and moved to the other side as they are counted. Each team shall have a separate table and the presiding officer shall have a separate table, all of which tables shall be spaced apart.
(6) If there is more than one container from a polling place, the presiding officer shall open first the container which is identified as containing the checklist. Upon opening the first container in the presence of the presiding officer observer team, the presiding officer shall empty the contents onto the presiding officer’s table. The presiding officer shall ensure that teams are not given unused ballots, early or absentee ballots which arrived after the close of polls, or ballots spoiled by voters and turned in by voters requesting fresh ballots.
(c) Examination of checklists.
(1) The checklist from the first bag shall be assigned to a team. The caller and observer, each acting independently, shall examine the checklist and determine how many voters voted at the polling place, repeating the process until they agree on a number or until they agree to disagree on a number.
(2) Then the checklist shall be examined by the tally person and the double-check person, repeating the process until they agree on a number or they agree to disagree on the number.
(3) The results obtained from the two subgroups will be compared and if they do not match, the process shall be repeated until there is agreement among all the members of the team or until team members agree to disagree.
(4) The number finally determined by a majority of team members shall be submitted to the presiding officer in the presence of the presiding officer observer team, together with an indication of the nature and extent of the disagreement. If one or more team members do not agree with the number submitted, the presiding officer shall note on the master list the fact that the number of people appearing as having voted on a specified checklist was subject to dispute.
(d) Sorting of ballots.
(1) Ballots from the first container shall be counted by one team and placed into piles containing 50 ballots each, except where there is a final pile which contains fewer than 50, in which case, the counting team shall affix to the top of the pile a note indicating how many ballots are contained in the pile. All of these ballots then shall be transferred to another team which shall verify that they are in piles of 50 ballots each and that any remaining pile contains the designated number of ballots.
(2) The teams, except the presiding officer observer team and possibly the team which is processing the checklists, shall proceed to their tables and each team shall get from the presiding officer one pile of ballots, one tally sheet, and one double-check sheet per 50 ballots, unless there are more persons per team who serve as double-check persons, in which case, each such person shall be assigned a double-check sheet. If a team spoils a tally sheet or needs to retally, it must turn in the tally sheet in order to get another one.
(e) First tally.
(1) The caller shall call the name of the person voted for and any blank or spoiled ballots. The tally person and the double-check person or persons each shall make a suitable mark for that candidate and any blank or spoiled ballots.
(2) If the caller and the observer or observers do not agree on how a ballot should be counted, the entire team shall review the ballot and if all members agree, it shall be counted that way.
(3) If one member of the entire team does not agree, that ballot shall be set aside as a questioned ballot and a copy shall be made, which copy shall be clearly marked on its face identifying it as a copy. Such copies shall be placed on the top of the other ballots and shall remain together with the other ballots. Each original ballot deemed questionable shall be attached to a note which identifies it by town, polling place, and bag seal number. The originals of these questionable ballots shall be clipped to the summary sheet for that polling place and returned to the board of civil authority for a final decision by majority vote.
(4) After the board of civil authority has rendered a final decision on a given questionable ballot, it shall be returned to the town clerk who shall keep it in a sealed container for a period of two years.
(5) Write-in votes for preprinted candidates shall be counted as votes for that candidate.
(6) If the tally persons do not agree on the number of votes for a candidate, the ballots shall be retallied until they do agree. Then the team shall notify the presiding officer that it has completed the first recount.
(f) Second tally.
(1) The presiding officer shall attach to the tally and double-check sheets a note which indicates which team members performed which functions in the first recount, and shall provide the team with a new tally sheet and an appropriate number of double-check sheets to match the number of people serving as double-check persons.
(2) The members of the team then shall switch roles, with callers and observers becoming tally persons and double-check persons, as designated by the presiding officer, and the team shall complete a second recount, following the procedures established for the first recount.
(3) When the results of the second recount match those of the first, a note shall be attached to the tally and double-check sheets, indicating which persons provided what functions during the second recount.
(4) Then the team shall take its tally sheets, double-check sheets, and ballots, plus a separate pile of questionable ballots, if any, to the presiding officer.
(5) Team members, in the presence of the presiding officer observer team, shall read the totals to the presiding officer who, in the view of these observers, shall record the totals on the summary sheet for that polling place.
(6) After a team has presented its pile of ballots to the presiding officer, it shall be assigned another pile of ballots, until all of the piles from a particular polling place have been recounted two times.
(g) Completing the tally.
(1) After the totals for a polling place have been listed, the presiding officer shall add them up in the presence of the presiding officer observer team, and shall compare the number with the number of voters who voted at that polling place, according to the number obtained from the team that examined the certified checklist. If these numbers differ, the presiding officer shall note the amount of the difference on the summary sheets for that polling place.
(2) The presiding officer shall return all ballots to the container, seal it, record the seal number on the summary sheet, write “recounted” and specify the date of the recount on the tag, and move it to the other side of the room, making sure that there is never more than one bag open at any one time.
(3) This procedure shall be repeated for each container, until the results from a polling place have been recounted, and then it shall be repeated until the results from all polling places in a town have been recounted.
(4) The presiding officer shall add the totals on each summary sheet, affix the presiding officer’s seal, and send the summary sheets for all polling places together with the master list and any questionable ballots to the board of civil authority.
(h) Other rules for conducting the recount.
(1) The presiding officer shall preserve order. If a person, after notice, is persistently disorderly and refuses to withdraw from the premises, the presiding officer may cause the person to be removed from the premises.
(2) The presiding officer shall designate an area within which the recount shall take place. Persons who are not board of civil authority members or appointed impartial election officers shall be permitted to view a recount in progress, but persons not authorized by the presiding officer shall not be permitted within the area designated by the presiding officer.
(3) Candidates and their attorneys shall be given the opportunity to present evidence to the board of civil authority relating to the conduct of the recount. If the board determines that any violations of recount procedures have occurred and that they may have affected the outcome of the recount, a new recount shall be ordered. After such hearings or arguments as may be indicated under the circumstances, the board, within five working days, shall issue a judgment, which shall supersede any certificate of election previously issued and shall return to the town clerk questionable ballots which had been forwarded to the board.
(i) After the recount.
(1)(A) If the recount results in a tie, the board of civil authority shall order a recessed election to be held, within three weeks of the recount, on a date set by the board. The only candidates who shall appear on the ballot at the recessed election shall be those who tied in the previous election. The recessed election shall be considered a separate election for the purpose of voter registration under chapter 43 of this title.
(B) If the recount confirms a tie, as to any public question, no recessed election shall be held, and the question shall be certified not to have passed.
(C) Warnings for a recessed election shall be posted as required by this chapter, except that the warnings shall be posted not less than 10 days before the recessed election. The conduct of a recessed election shall be as provided in this chapter for local elections.
(2) The town clerk shall send a certified copy of the judgment to the Secretary of State. (Added 2013, No. 161 (Adj. Sess.), § 58.)
Right
I was told she got conflicting advice from the Sec of State and, as you say, this is to be certain things are done as accurately and up to par as possible. The Sec of State said the new sections about recounts were only for state-wide results. Other beg to differ. : )
It will be interesting to see what the third vote count tells us.
Secretary of State made a mistake
“Others beg to differ,” implies that there is ambiguity in the law, subject to interpretation. In fact, the law is quite clear that it applies to local elections. The heading for the recount statute (Title 17, Section 2685a) says:
Title 17 : Elections
Chapter 055 : Local Elections
Subchapter 003 : Local Elections Using The Australian Ballot System
§ 2685a. Procedure for recount
I just came from the meeting of the Board of Civil Authority. At that meeting, Annette explained that she had followed erroneous advice from the Secretary’s office, graciously she took full responsibility, the Board agreed that the law is clear and that it does apply to local elections, and they scheduled a recount for tomorrow (Thursday, March 17th) morning at 10:30 a.m.
I am lucky, as I will not have to attend what will no doubt be a tedious if not grueling session for all concerned: I will be enjoying the relative ease of sitting in the dentist chair, getting my teeth worked on 🙂