In re: Rodney Graham, No. 247-11-10 Oecv (Eaton, J., Nov. 22, 2010)

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                                                  STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Orange County                                                                              Docket No. 247-11-10 Oecv


In re: Rodney Graham
        Petition for Recount, Orange #1 Representative District
        General Election held November 2, 2010


                    Decision re: Letters from Stephen W. Webster and Erik Mason

        A recount was held on Friday, November 19, 2010 for the office of State
Representative for the District of Orange #1. During the recount, the counting teams did
not set aside any “questionable” ballots for review by the court. All ballots were counted,
returned to their bags, and sealed.

           After the recount, the court received three letters from two recount participants.

        The first and second letters are from Stephen Webster, who was a member of one
of the counting groups. In his first letter, he states that his team reviewed “three ballots
that had once been marked for Rodney Graham, but thereafter had the mark for him
erased.” During the recount, Mr. Webster agreed with his team members that the ballots
should be approved without counting a vote for Mr. Graham, and each of those ballots
were returned to the bags along with the other ballots and sealed. After the recount,
however, Mr. Webster decided that he should have asked for the ballots to be reviewed
by the court. He asks the court to “revoke” his count of the three ballots, and to reopen
the ballot bags from Williamstown, Orange, and Chelsea in order to find the ballots.

        In his second letter, Mr. Webster states that he reviewed a sample ballot from the
Randolph Town Hall after the recount. The sample ballot contains a notice instructing
voters not to make erasures on their ballot, but rather to ask for a new ballot instead.

        The third letter is from Erik Mason, who was a member of a separate counting
group. He states that his team reviewed one ballot where “[b]oth ovals next to Phil
Winters and Rodney Graham were filled in but the one next to Rodney Graham was
much lighter than the one next to Phil Winters.” Mr. Mason initially wanted to count this
ballot as containing a vote for Mr. Graham, but his team members did not agree, feeling
that the voter had “erased the vote” for Mr. Graham. Mr. Mason eventually agreed with
his team members, and approved the ballot without counting a vote for Mr. Graham; the
ballot was returned to the bag along with the other ballots and sealed. Mr. Mason asks
the court to count all four votes for Mr. Graham and to inspect all ballots to “make sure
there are not more votes like this.”
        The election statutes do not permit recount participants to challenge particular
ballots after the recount is over. Instead, the statutes make clear that it is the
responsibility of each counting team to determine during the recount whether a ballot
should be approved, or whether the ballot should instead be set aside as “questionable”
and submitted to the court for further inspection. Each counting team is to count the
votes as follows:

                (a) The caller shall call the name of the person voted for
               and/or blank ballots, and/or spoiled ballots. The tally
               person and the double-check person or persons each shall
               make a suitable mark for that candidate and/or blank
               ballots, and/or spoiled ballots.

                (b) 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.

                (c) If one person 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, county,
               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 court for a final
               decision.

                (d) After the court has rendered a final decision on a given
               questionable ballot it shall be returned to the county clerk
               who shall keep it in a sealed container for a period of two
               years.

17 V.S.A. § 2602f. After the ballots are counted, the counting team performs a second
tally, “following the procedures established for the first recount.” The team therefore has
another opportunity to set aside “questionable” ballots for review by the court. Id. §
2602g(b). At the end of the recount, if there are no “questionable” ballots, then all ballots
are returned to their containers and sealed, and the recount is complete. Id. § 2602h.

        Here, there were no ballots identified as “questionable” and set aside for court
review during the recount. Instead, Mr. Webster’s team discussed three ballots, and they
all agreed that the ballots should be approved without counting a vote for Mr. Graham.
Mr. Mason initially disagreed with his team members about how ballot should have been
counted, but he eventually agreed with the rest of his team that the ballot should be



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approved without counting a vote for Mr. Graham. As a result, neither Mr. Webster nor
Mr. Mason set aside any ballots as “questionable” during the recount, even though they
had an opportunity to do so.

         It is now too late to challenge particular ballots that were not set aside during the
recount. It would not be fair to allow counters to agree with their team members as to
how particular ballots should be counted during the recount, but then to raise questions
after the recount is over, and after the results of the recount are known. Nor would it be
fair to reopen the sealed ballot bags, after the recount is complete, to search for particular
ballots. Such a search would amount, in effect, to another recount of the ballots, and the
election statutes do not permit ballot bags to be unsealed for this purpose.

        For these reasons, the court denies the requests of Mr. Webster and Mr. Mason to
reopen the ballot bags for the purpose of finding four specific ballots and reviewing the
intent of the voters.

        Since no other questionable ballots were presented to the court for review, the
clerk shall certify the results of the recount to the court pursuant to 17 V.S.A. § 2602h(d).
Any candidate or their attorney seeking to present evidence relating to the conduct of the
recount pursuant to 17 V.S.A. § 2602j(c) shall do so by motion filed no later than 4:00
p.m. on Monday, November 29, 2010 in the Vermont Superior Court, Orange Unit.

       Dated at Chelsea, Vermont this 22nd day of November, 2010.


                                                       ___________________________
                                                       Hon. Harold E. Eaton, Jr.
                                                       Superior Court Judge




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