Miscellaneous Elections Bill (H.97) - Feb 22-23, 2023

On Wednesday the House Government Operations Committee heard significant testimony on their draft bill that would, among other things, ban fusion candidates. John Rodgers (Former State Senator) testified first.

Rodgers stated that he believes in “One Person, One Vote, One Candidate, One Party” and mentioned he and Senator Alice White had meant to address these issues in the past. He believes this is a serious issue for primaries and he sees low turnout (27% in the 2022 primary) as being exacerbated by “hybrid candidates.”

He gave the examples of Lt. Governor Zuckerman being a D/P, Rodgers asserted there is no such thing. Even a Democrat sees the race would have been much different in a truly reflective three-way race, he argued. He says he doesn’t know all the solutions but hopes they can address primaries because they maybe cause the extreme partisanship is amplified.

“Moderates cannot make it through… moderates who would beat the candidate that beat them if it went to a General Election can’t make it through,” he stated. He went on to claim that Kitty Toll would have won in a three-way race and that Molly Gray would have won in a general election.

However, when it came to independent candidate filing deadlines, which the Committee is considering moving up to avoid “sore loser” candidates, he had a different opinion. He believes that candidates should be able to run after losing in a primary, and gave the example that in the 2020 election Kitty Toll perhaps could have run as an independent candidate and beat both Benning and Zuckerman.

Representative Hooper asked if it would make more sense to get rid of the primary process than to allow candidates who lose in the primary to run as independents in the general. Rodgers agreed with the “second bite of the apple” argument but questioned if legislators are “in the business of restricting candidates or do we want people to have a choice.” His perspective is that “a Progressive won our Democratic primary race for Lieutenant Governor.”

Rodgers is concerned that with the low turnout of primary voters, they do not give Vermonters a slate of candidates in the General election that voters really want. He often feels this way himself.

Representative Higley voiced agreement with Rodgers about Independents not being blocked from running following the Primary outcomes. He wondered what Rodgers though about parties being able to disavow “invasive candidates.” Rodgers admitted he once also received the Republican nomination and accepted to protect himself in the general election. He now disavows that move and feels badly about it. He believes that local parties should have the ability to confirm a “true candidate.”

 

Will Senning (Director, Elections and Campaign Finance, Secretary of State's Office) was up next, offering comments on a section of the bill that would allow for electronic voting. Senning clarified that the “electronic means of returning a Ballot” described in the draft bill was separate and distinct from any web-connected system between voter and machines (which is generally not advised). This section was just meant to allow for electronic means for voters who are overseas or disabled by either sending a PDF document, fax, or other similar file format to get their ballot to the town clerk. The ballot then would be counted as others, with verification being under a separate system than the tally or collating systems.

The main reason they anticipate this as a need is to avoid lawsuits demanding such a system for disabled voters to return their ballots during the early voter period. Nearby states have adopted some form of this in response to lawsuits or threats of lawsuits.

 

Harlan Smith (a citizen from Montpelier) shared a story about assisting someone to deliver a ballot for his sons in the military. There were also major issues with getting timely mail, both receiving the ballot from Vermont and getting it back in the allotted timeframe. Printing and mailing ballots created a large obstacle for forward deployed personnel, he argued.

Senning added the upcoming local elections (town meeting day) presented the most restricted timeframe and likewise the most pressing need for electronic ballot returns. These elections have a tighter 20-day turnaround versus the 45 days in a General Election printing.

Hooper asked about how many of these ballots they should expect. Senning believed that statewide maybe 2,000 ballots might be returned in this manner.

Legislative Counsel did a quick walkthrough of the bill, the Committee seems to be sticking with the language to ban fusion candidates but might play with the sore loser candidate provision.

One measure to limit write-in fusion candidates is that these candidates would need to file their consent forms the 2nd Friday before an election and also have a minimum threshold of 10% of votes cast in order to actually win a party nomination.

Chairman McCarthy took the opportunity here to state his “desire to see that my party has a brand and that it has some integrity with the voters.” He has spoken with voters and feels “the label has less meaning than it used to.”

Representative Mrowicki agreed that he wants the parties to be useful.

Hooper asked for an Independent to come speak and he suggested Representative Sibilia. McCarthy indicated that she offered but he is hesitant about members as witnesses because he wants other citizens to participate. After some discussion, he committed to hearing from an independent before final votes on the bill.

 

Thursday

The Committee came back to the draft bill on Thursday with Chairman McCarthy announcing a strike all to H.97. They will insert all the language from their committee bill into that one as a vehicle.

One major change in the newest draft of the bill is that statewide fusion candidates who receive 10% of the vote in a primary will be able to count those votes towards major party status in Vermont. Current law requires that for political parties to obtain “major” status they need to have a statewide candidate win 5% or more of the vote in the most recent election.

Carol Dawes (Legislative Committee Chair, Vermont Municipal Clerks and Treasurers) again voiced concern about the current write-in process, saying that the tabulating and documenting of every single write in vote has no value or meaningful impact on election outcomes.

Representative Nugent noted that she speaks with folks who feel their voice doesn’t matter it. It shouldn’t be up to her to decide whose voice counts. She considers write ins an act of bravery if the person steps up.

 

The Committee and witnesses were generally supported of the consent of candidate system in the bill, which requires consent forms to be filed before the election for statewide or national offices.

Representative Hooper stated that what they are doing is effectively blocking the will of the people in a certain scenario, unlikely as it may be. Specifically, when voters elect someone via write-in but that “candidate” fails to file a consent form before an election. Will Senning (Director of Elections and Campaign Finance, Secretary of State's Office) and McCarthy agreed they may be creating that possibility.

 

Legislative Counsel shared that in the latest draft they had moved the electronic return of ballots to the end of the bill and condensed some of the language for clarity.

Representative Higley stated that he is supportive of the electronic return sections of H.97 but has reservations about a lot of the rest. He argued that many “candidates” named in write-in campaigns are not aware of the support group who may have organized the effort.

McCarthy says he is correct that requirement would preclude the effort having any effect. Regardless, he is seeking a Committee vote on the bill by Friday.

Hooper said outright he is opposed to the fusion restrictions and would not support this version of the bill because of that. He called it “meddling with a Vermont tradition.” Electoral history here has shown cross-party support for persons so popular that voters are willing to vote for them even if they are the opposite party. He also felt that the consent of candidate option was a fair attempt at compromise but not enough.

Representative Mrowicki says he is concerned about the 2022 Republican Primary for Congress and wants to avoid that from happening again (a self-described independent winning the nomination). He stated that anyone can vote how they want in the general election.

McCarthy shut down discussion saying they should think about this over lunch, saying he hears “deep feelings about democracy” from members of the Committee. 

 

After lunch, McCarthy opened up discussion by announcing two major changes in the bill. After hearing the Committee’s concerns, the write-in sections of the bill and the requirement for a candidate consent form prior to the primary were removed.

One other change is that the donation limit for a candidate to the party was raised to $100,000 to avoid de-facto donations from candidates through their campaign accounts.

Former Representative Barbara Murphy joined the Committee, saying that the first two sections of the bill impede voter choice. She argued that “if an individual meets the filing requirements to be an Independent candidate on the general election ballot, their eligibility should not be determined by whether they lost a party nomination.”

McCarthy laughed at her.

Murphy suggested folks mischaracterize Bernie Sanders’ Independent status as another party. She continued to say that party affiliation also has responsibility along with benefits. Independent candidates give up both the support and network along with the responsibility to the organization. In her first election she won the Democratic primary and tied the Republican one. She relinquished both so she could keep the independent label on her name.

McCarthy stated nothing in the bill would change that scenario.

She also did not like the sore loser provisions, calling it “inappropriate” to move the filling deadline because the date is currently “set to meet the necessary warning periods for the general election.” Her view is that voters should be able to support a candidate who the party did not elect, even if they don’t care to vote in that party’s primary.

She says she is very pleased that Representative Sibilia is in the room because she is “not an expert” on some of these things. The last section of the bill, dealing with electronic ballot returns, she called “terrifying.” She believes that the system needs to be up and running with town clerks before we make this move.

 

Friday

The Committee resumed the walk through of the bill with Legislative Counsel.

Higley requested that the section regarding voluntary candidate demographics should have language guaranteeing that all forms state clearly which information is required and which is not.

McCarthy is still vexed about why people are so hesitant to force candidates to “pick a lane in the beginning” (referring to sore loser candidates).

Higley voiced opposition to the sore loser provision. Hooper is also uncomfortable with this provision. Waters Evans also indicated that Murphy’s testimony cleared her thinking around this and that requirements for independents should not be tied to party primaries.

Representative Chase offered that he sees the filing deadline as less of a service to the parties and more a service to voters to give them time to look into folks.

NOTE: It’s not clear this is true for write-in candidates.

The Committee took a straw poll and it was clear the majority opposed the language, so it was struck. After more review and discussion, the Committee voted the bill out 9-3 on Friday.


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