Court upholds Vergennes election recount
MIDDLEBURY — Addison County Superior Court Judge Helen Toor on Thursday ruled against incumbent Vergennes Union Elementary School board director Cheryl Brinkman’s appeal of her 239-238 Town Meeting Day election loss to challenger Susan Ferland.
That tally had been confirmed by a March 12 Board of Civil Authority recount, but city officials also acknowledged a transcription error that day resulted in confusion over the total amount of votes cast.
Brinkman then filed what Toor called “a relatively rare” appeal of an election result, and Brinkman, Ferland, City Clerk Joan Devine, and assistant clerk Melissa Wright — who helped Devine run the March 12 recount — came to the courthouse for the hearing.
“We don’t do it very often,” Toor told them. “The statute doesn’t set out a very specific process for how we do this.”
Toor said for an election to be overturned or a recount ordered it had to be shown “errors were committed in the conduct of the election … sufficient to change the ultimate result,” “there was fraud,” or “for any other reason, the result of the election is not valid.”
After Brinkman, Ferland and Devine testified, Toor ruled that despite an initial five-vote discrepancy on the number of votes cast on the March 12 summary sheet none of those criteria were met.
“There is no allegation here of fraud, so I’m not considering that one. And in terms of the changing the tally, there was some irregularity in that … The question is, is that irregularity something that would be likely to change the outcome,” Toor said. “My conclusion is I find the clerk’s testimony credible about what happened to that number.”
The issue centered on a stack of 20 ballots that contained no votes for either Ferland or Brinkman, who had served six years on the VUES board.
Devine testified that of those 20 ballots, 16 were blank, three were spoiled, and one contained a write-in vote for a third candidate. Those ballots were separated out from groups of 25 ballots, and all the stacks were counted twice during the recount by two-person BCA teams.
When the stacks were double-counted, the results were entered onto tally sheets, and the ballots and the corresponding tally sheets were brought to Wright, who entered the result on a summary sheet.
The ballots with votes for Ferland and Brinkman produced the 239-238 margin. (Earlier editions of the Independent reported mistakenly it was 329-328 based on a communication error on the night of March 6.)
But Devine testified on Thursday an error on the number of blank ballots found its way onto the summary sheet: Wright mistook the 16 for an 11.
“The 16 blanks, the six looked like a one, the little loop on the bottom looked so small,” she said.
As a result, the number of ballots on the final summary sheet came out five short. After confusion that evening and a long night, Devine said Wright figured out the problem.
“The tally came up to 543 and it should have been 548, and it kind of turned into a little busy-ness, and we were all nervous,” Devine said. “Melissa and I were up all night running numbers through our head. And she called me at 6 o’clock the next morning and she goes, ‘Oh, I know what it is. It was that last stack of 20. I wrote down 11, Joan, and when you add them up they do not equal 20.’ … I had clearly made it into a six, but she had already misread it as a one.”
Devine, who carried the bag with the 548 ballots into the courtroom, said she then contacted an elections official at the Secretary of State’s office.
“She said if it’s only an error of transposing a number, you can change it … So I feel the only thing that should be in question now is that stack of 20,” Devine said. “So yank it out and count them.”
But Toor said that would not be necessary.
“I don’t think that there is anything to suggest even if we counted those 20 ballots there is any reason to think it would alter the result,” she said.
Brinkman also argued for a recount based on general principles.
“I feel with one vote difference there isn’t a real clear outcome for our community,” Brinkman said, citing possibilities that included “one person who wasn’t let in a few seconds after it closed, or one spoiled ballot, one absentee ballot not getting to the right place.”
More specifically, she believed residents treated the vote as a referendum on Addison Northwest Supervisory Union unification, a subject of several contradictory votes in recent years, rather than on a choice between two candidates.
“People were told … if you were against unification you should vote for Susan Ferland because unification will happen if I was in office, and then your taxes will go up,” Brinkman said. “There was a lot of misinformation out there that I did not realize.”
In court Brinkman said she based her opinion of Ferland’s stance on unification on remarks she made in a February candidates’ forum, and said a member of the city council, unknown to her, campaigned against Brinkman based on Brinkman’s pro-unification position.
“What I was personally told by a couple different people was there was a discussion held in a couple different public sessions basically directed from one city council person that actually told people that if you didn’t want unification to happen and you did not want your property taxes to go up, then you need to vote for Susan Ferland,” Brinkman said. “Because of that I truly feel there was a misunderstanding … of what people were voting for.”
In a later email, Brinkman identified the council member as Clara “Ziggy” Comeau.
But Ferland said she had not come out against unification in the forum, which was held at American Legion Post 14, and did not take a position on unification during her campaign.
“At the Legion when I was asked about unification, I stated that the way unification was presented the first time I did not support. In order for unification to come back again, I would need to have it reframed, redone,” Ferland said. “So I didn’t say never do unification, I said let’s look at it with some other eyes, let’s look at some other alternatives. I want to make that clear.”
The following, reprinted from an Independent article on the candidates’ forum, summarizes Ferland’s response to the unification question: “I can’t answer whether it’s going to come forward again. I haven’t heard it talked about in the community or in the newspaper. I would say, however, if unification were to be looked at again, it needs to be reframed, and that we need to look at more avenues than we focused on before.”
Toor said those issues were outside of the court’s consideration, however.
“Just like the in the national presidential elections that are playing out now, we see lots of things said, and they may be true or false. What leads someone to vote is not something the court appropriately delves into,” Toor said.
Ultimately, Toor said she hoped that no one involved would have “hard feelings” about the process.
“I get the sense that you are all very dedicated folks in your town … And from my perspective the fact that you cared a lot to come to court and raise these issues says a lot about you and about our political system,” Toor said. “It’s one of the great things about Vermont that, like you, people care about things like the school board … It’s a positive thing that people use this process in the way it’s designed to be used.”
Andy Kirkaldy may be reached at [email protected]
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