Federal Lawsuit Challenges Constitutionality Of Vermont's Vote-By-Mail Plan For 2020

Sep 9, 2020

Updated 1:04 p.m. 9/10/20

A lawsuit filed in federal court last week by four Vermont residents is seeking to block Secretary of State Jim Condos from administering a universal vote-by-mail system for the 2020 election.


The plaintiffs argue that Vermont’s voter checklist hasn’t been sufficiently purged of people who have died, moved or are otherwise ineligible to vote in Vermont. And they say plans to send general election ballots to every registered voter in the state later this month threaten the integrity of election results.

More from VPR: Vermont's Universal Mail-In Voting Has Campaigns Rethinking Outreach

“… (M)any castable ballots will inevitably fall into the hands of persons other than the voter to whom the mail-in ballot was directed,” lawyers for the plaintiffs wrote. “Some or many of these misdirected or misreceived ballots can and will be cast by a person other than the voter to which the ballots were addressed or by an otherwise ineligible voter. Each such miscast ballot will directly impact and dilute the individual vote of each legitimate plaintiff voter, for which each plaintiff will have no remedy once such miscast ballots are received and counted.”

Lawmakers earlier this year approved legislation that authorized Condos to institute a universal vote-by-mail system in 2020. Supporters of the law, called Act 135, say it will maximize voter participation during a coronavirus pandemic that will rightly dissuade people from heading to physical polling stations on Election Day.

Condos said in a written statement Wednesday that voting by mail “is safe, secure and legal.” And he dismissed the lawsuit as “D.C.-style political attacks by partisan political operatives.”

A growing body of research into the six states that already have universal voting by mail has consistently found that instances of fraud are exceedingly rare.

More from Vermont Edition: Voting In A Pandemic: Vermonters Share Their Primary Experiences

An analysis of three vote-by-mail states, published in June by The Washington Post, found 372 possible instances of fraudulent voting in 2016 and 2018, out of nearly 15 million votes cast.

"And that breeds a level of disregard for the law, because the end will justify the means, and so this election in particular is a bad time to be fooling around with loose ballots." - Robert Frenier, plaintiff

That analysis is consistent with previous studies that also found low rates of voter fraud.

Robert Frenier, who served in the Vermont House of Representatives from 2017 to 2019, is one of the named plaintiffs in the case. He said those studies do little to ameliorate his concerns.

“I do not trust the media reporting of that,” Frenier said Wednesday.

In the 2016 general election, Frenier defeated his Democratic opponent by fewer than 10 votes.

More from Vermont Edition: Secretary Of State Condos Answers Questions On Voting In Primary, General Elections

“So I am more aware than most of how few votes are needed to win or lose,” Frenier said Wednesday. “While I have great respect for Jim Condos, I don’t believe it’s possible to keep track of hundreds of thousands of voters and send ballots to them without significant error.”

Frenier said the polarized political environment has brought an unprecedented intensity to this year’s election cycle. And he said he worries that nefarious actors will exploit vulnerabilities in the vote-by-mail framework to advance their electoral cause.

For VPR's coverage of the 2020 Vermont Primary, head here.

“And that breeds a level of disregard for the law, because the end will justify the means, and so this election in particular is a bad time to be fooling around with loose ballots,” Frenier said.

Frenier said there’s no reason to proceed with a universal vote-by-mail system, since existing law already enables people to request an absentee ballot if they don’t want to go to a polling station.

Condos, however, said turnout in general elections is usually double what it is in the primary. And he said local town clerks don’t have the time or resources to manually send such a large volume of ballots.

“This could overwhelm the Clerks, especially during this pandemic where reduced office hours, limited staff capacity, and room occupancy limits would make their job of assembling mailings of that size incredibly difficult,” Condos said.

Condos said many voters also may forget to request an absentee ballot in time, “and then are put in the position of choosing whether or not to risk potential exposure to vote at the polls.”

Preparations for the universal vote-by-mail program are already well underway.

L. Brown & Sons in Barre is one of two printing companies hired to produce the more than 450,000 ballots needed to conduct the election.

Jeff, left, and Keith Blow, owners of L. Brown & Sons in Barre, stand in front of the printer that's producing ballots for Vermont's first-ever universal vote-by-mail election.
Credit Peter Hirschfeld / VPR

On a recent afternoon, Keith Blow, the younger half of the father-son team that owns the operation, watched ballots fly through a Heidelberg six-color Speedmaster press that runs nearly the entire length of the warehouse floor.

“It will do up to 19,000 sheets an hour,” Blow said. “Once it gets set up and cranking, this baby will sing all day long. Which is what we need.”

Speed is key, because L. Brown has only 15 days to print 275 unique ballots for 251 towns in Vermont. And Keith’s dad, Jeff Blow, said every single one of them needs to be perfect.

“Our reputation is frankly on the line, because this is the first time that it’s election by mail, and it is critical that every step be correct,” he said. “It’s an enormous responsibility, and we take it very seriously. First time around for vote by mail, everybody has eyes on the entire process.”

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