In Re: Anthony Pollina, No. 699-11-02 (Teachout, J., Nov. 5, 2002)


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from
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STATE OF VERMONT
WASHINGTON COUNTY, SS.

                                             )
In Re: Petition of                           )   Docket No. 699-11-02 Wncv
ANTHONY POLLINA                              )
                                             )



                     FINDINGS, CONCLUSIONS, AND ORDER


  This matter came before the court on a Petition of Anthony Pollina to cast a vote in the
general election on November 5, 2002, consisting of affidavits of Anthony Pollina and
June Lakin, Town Clerk of the Town of Middlesex, Vermont.

Prior to election day, Mr. Pollina had requested, and had received, an early voter absentee
ballot pursuant to Subchapter 6 of Chapter 51 of Title 17 of the Vermont Statutes
Annotated. He mislaid or misplaced the ballot and the special envelope required under 17
V.S.A. '2535(c), and could not locate it after a thorough search of his house and car. He
sought to vote in person in Middlesex, where he resides. The Town Clerk confirms that
he requested an absentee ballot on October 22, 2002, that he came to the polls to vote in
person on November 5th as he had lost his absentee ballot, and that she would not permit
him to vote in person as he did not return his absentee ballot. 17 V.S.A. '2548(b)
provides that a Aperson who in good faith has received early voter absentee ballots for his
use but has not yet marked them, if he finds that he is able to vote in person, may cast the
early voter absentee ballots as provided above, or may vote in person after returning the
complete set of unmarked ballots, together with the envelope intended for their return, to
the presiding officer at the time the voter appears to vote in person.@

Mr. Pollina has filed a petition asking the court to fashion a remedy pursuant to 17 V.S.A.
'2617: AIn all cases for which no other provision has been made, the superior court shall
have general jurisdiction to hear and determine matters relating to elections and to fashion
appropriate relief.@



  Subchapter 6 on AEarly or Absentee Voters@ contains no provisions for procedure in the
event of an early voter absentee ballot that is lost between the time of receipt of it and the
time for voting. It does, however, contain provisions for procedures in the event of an
early voter absentee ballot that is lost in the mail (17 V.S.A. '2532(f)), spoiled (17 V.S.A.
'2541(c)), or unused (17 V.S.A. '2548(5)). In all those instances, a voter is still entitled
to cast a ballot. Spoiled or unused early voter absentee ballots are required to be returned
to the Town Clerk; a ballot that is received in the mail later than Aa reasonable period of
time after mailing@ is not required to be returned to the Town Clerk.

     The fact that a voter has voted, whether in person or by a replacement early voter
absentee ballot, is recorded on the entrance and exit checklists pursuant to procedures set
forth in the statute to prevent the possibility of double voting by the voter. 17 V.S.A.
'2546(a), 2548(a). A special provision allows a voter who is in possession of an early
voter absentee ballot to choose to vote in person instead. 17 V.S.A. '2548(b). In the
event of a person who submits two early voter absentee ballots, only the ballot with the
earlier postmark is counted. 17 V.S.A. '2532(f). These statutes demonstrate a policy of
flexibility in the manner of voting, while providing for strict protections to prevent the
possibility of duplicate votes being counted for a single voter. In addition, the underlying
purpose of the procedure is to provide procedures that expand the opportunities of voters
to participate in the electoral process, while maintaining protections against duplicate
voting.

  Within this context, the fact that there is no specific statutory provision for procedure in
the event of a lost early voter absentee ballot should not operate to deny a properly
registered voter the opportunity to vote. Maximum participation in the electoral process
is achieved by fashioning a remedy that provides for the voter to vote, as long as the
protections against duplicate voting are in place, which they are. Mr. Pollina will only be
able to vote once, even if he is allowed to vote without turning in his previously issued
early voter absentee ballot and envelope. Once his ballot has been cast in whatever form,
his name will be checked off on the entrance and exist checklists, and he will not be able
to vote a second time. Another person who may find his lost ballot will not be able to use
his missing ballot and envelope to cast an extra or illegal vote, as statutorily required
procedures provide for the checking of names on the entrance and exist checklists.



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 For the foregoing reasons, the Court finds just cause to fashion the remedy of permitting
Mr. Pollina to vote in person without returning his unused early voter absentee ballot and
envelope, as long as the entrance and exist checklists do not show that he has already
voted. In addition, pursuant to the provisions of 17 V.S.A. '2548(5), in the event that Mr.
Pollina subsequently finds the missing early voter absentee ballot and envelope, he shall
deliver them to the Middlesex Town Clerk so that they can be properly stored with
election materials.


                                         ORDER

                   Based on the foregoing, relief is provided as follows:

  1. The Middlesex Town Clerk shall permit Anthony Pollina to vote in person without
returning his lost early voter absentee ballot and envelope if the voting checklists do not
show that he has already cast a ballot in the election of November 5, 2002, and

2. In the event that Mr. Pollina subsequently finds the missing early voter absentee ballot
and envelope, he shall deliver them to the Middlesex Town Clerk.


                   Dated at Montpelier this 5th day of November, 2002.



                            ____________________________
                                                                              Hon. Mary
Miles Teachout
                                                                              Superior
Judge, presiding




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