Woodstock — A ballot recount that was supposed to clarify the race for the Windsor-Orange 1 Vermont House seat instead left matters more confused, with both Republicans and Democrats voicing criticism of a recently implemented machine-driven recount process that ended on Monday afternoon with the outcome still in doubt.
The recounted vote total seemed to show that the three-vote lead of state Rep. Sarah Buxton, D-Tunbridge, had evaporated, leaving her tied with challenger David Ainsworth, a Royalton Republican. The new vote totals also left questions about whether the new tally was any better than the first one.
Vermont Superior Court Judge Robert Gerety had ordered the recount in response to a petition by Ainsworth, who cited Vermont law that allows for recounts when the margin of victory is less than 5 percent.
On election night, initial vote tallies in Tunbridge and Royalton showed that Buxton had narrowly won, 1,003–1,000.
After a six-hour recount, held in a small, warm room in the Windsor County Courthouse in Woodstock, local election officials from both parties found that the count was tied, with each candidate receiving 1,000 votes.
If the tie vote is upheld by Gerety, Vermont law requires that “the court shall order a recessed election to be held, within three weeks of the recount, on a date set by the court.”
But the recounting process left just as many, if not more, questions about who had actually won. Running the same ballots — more than 2,000 in this case — through the same vote tabulation machine had given a different result from Election Day.
“We’re just counting,” County Clerk Pepper Tepperman said. “Everything goes to the judge after.”
During the recount, a tabulation machine deducted one vote from each candidate’s Tunbridge tally. When the paper ballots from Royalton were run through, it showed that Buxton had lost two, and Ainsworth had gained one, which led to the tie tally.
The local election officials then processed each ballot by hand, but they didn’t count the ballots. Under Vermont recount laws, which were amended in 2015, officials are instructed to examine each ballot looking for cases in which the machine would have missed the clear intention of a voter.
For example, the machine might report that no vote had been cast, because there was no ink inside the bubble next to either candidate’s name. But processing the ballots by hand allowed officials to look for those few cases in which the voter circled the name of a candidate, or made some other clear indication of preference other than filling in the bubble.
However, the process does not tell the officials how the tabulator counted a particular ballot — in two cases, they found votes in which the voter intent was clearly to vote for Ainsworth, but the ink of their mark barely grazed the edge of the bubble next to Ainsworth’s name.
If the officials counted the votes, they would have been added to Ainsworth’s tally, but if the machine had already counted them, then they would have been double-counting the votes.
The officials decided to refer those two ballots to Judge Gerety as “questionable ballots.”
But the officials seemed unclear as to whether the term questionable ballot was rightly applied to those two votes; under the election law, that term refers to ballots in which the intent of the voter is unclear, not ballots which may or may not have been counted by the machine.
“We at the Secretary of State’s Office will not know the results until the relevant judge issues an order,” Secretary of State Jim Condos wrote in response to an email from the Valley News. “The recount is being overseen by the court.”
Ainsworth said that Gerety would hear arguments sometime this week, and was required to make a ruling within five business days.
Buxton, who watched the recount seated next to her attorney, Rep. Willem Jewett, D-Ripton, said she was seeking legal advice on how to respond to the recount, but that she would likely request a hearing.
Lori Bjorlund from the office of the Secretary of State said that this is one of four recounts happening on Monday and today.
In one of the other recounts taking place on Monday, Chelsea Republican Bob Frenier was hoping his 8-vote lead over longtime state Rep. Susan Hatch Davis, P-Washington, would be upheld, allowing him to join Rep. Rodney Graham, R-Williamstown, in representing the two-seat, six-town Orange 1 district, which includes Vershire, Chelsea and Corinth.
Counters at the Orange County courthouse completed three towns with little change in the tally on Monday, Frenier said, and will return next Monday to resume. He said the count was slowed considerably by the necessity of feeding paper ballots into the one tabulating machine, rather than counting them by hand.
Ainsworth, a dairy farmer who was not at the Woodstock courthouse himself, said late Monday afternoon that, though the machine-count had improved his chance to take the seat, he felt a hand-count is needed to ensure accuracy.
“It sounds like maybe the Legislature erred in their judgment,” he said. “I don’t think, sometimes, that a march forward in progress is necessarily progress.”
He said he would be ready for another election if the judge rules that the outcome was a tie.
Throughout the day, there were several questions about procedures; after each question, all the officials seemed satisfied that they had come to a correct answer, but it was clear that there was room for interpretation and judgment.
Jewett used strong language to describe the recount process in a way that indicated he felt it was highly ineffective.
“The statute needs to be more clear,” Buxton said.
Jeff Bartley, executive director of the Vermont Republican Party, was equally critical of the process.
“We definitely have some questions,” Bartley said. “The process is unclear. There are three (House) recounts across the state (today). They’re all being done differently.”
For example, he said, “the recount in Windsor (County) did not count the total ballots by hand and compare to the checklist to verify the correct number of ballots are being counted,” a procedure which he said was being handled differently in the other recounts of the day.
“The clerks are doing as well as they can,” Bartley said. “It’s a failure of the Secretary of State’s Office.”
But Bjorlund said the process is not meant to be completely uniform, because they’re being overseen by local authorities. The recounts are happening to comply with different orders, which might have slightly different instructions, she said.
“The county clerks are in charge,” she said.
Buxton said her initial reaction was focused on the number of blank ballots that the machine had counted. On Election Day, the machine showed 51 blank ballots, but on Monday, the machine showed 56 blank ballots.
“Maybe those two questionable ballots were for him. Maybe there’s three more, and they’re for me,” she said. “I think there’s enough uncertainty about the machines and the five blank votes.”
This is the fourth election during which voters chose between Buxton and Ainsworth.
Buxton won her seat from Ainsworth, then the incumbent, in 2010 by a one-vote margin that was eventually upheld by the courts.