A federal judge has struck down a Republican attempt to block Secretary of State Jim Condos from sending a ballot to every registered Vermont voter later this month, ruling that the plaintiffs did not have the necessary legal standing.
In an 11-page ruling issued on Wednesday afternoon, Judge Geoffrey Crawford wrote that he dismissed the complaint brought by five Vermont voters because they failed to demonstrate how Condos' plan would negatively impact them — a necessary prerequisite for any civil lawsuit.
In particular, Crawford rejected arguments that the universal vote-by-mail plan could deprive the plaintiffs of their individual rights to vote because they may potentially fail to receive a ballot in the mail and not recognize the need to follow up with their town clerk or go vote in person on Election Day.
"These are sophisticated voters who have gone to considerable lengths to obtain counsel skilled in election law and to file a lawsuit in federal court," Crawford wrote of the plaintiffs, who include Victory Town Clerk Tracey Martel, former state representative Robert Frenier and Rep. Brian Smith (R-Derby). "Of all people likely to be confused about how to vote, these plaintiffs may be last on the list."
Crawford was equally unmoved by a claim that mailing ballots to every voter would inevitably lead to an increase in voter fraud, whether by people willfully breaking the law or by those who mistakenly fill out a ballot sent to them unintentionally. Either instance, the plaintiffs' attorneys argued, would dilute the weight of the plaintiffs' individual votes.
There is a growing body of research that suggests mail-in voting fraud is very rare. But Crawford took no position on whether Condos' plan would lead to a spike in fraudulent voting. In fact, the judge made sure to note that the plaintiffs' lack of standing meant he had no reason to wade into questions of election security, such as whether a system of checking signatures as suggested by the plaintiffs was a worthwhile proposition.
Instead, Crawford addressed fraud through the lens of whether it would specifically harm the plaintiffs more than the rest of the electorate, a bar civil litigants must clear in order to have legal standing.
"A vote cast by fraud or mailed in by the wrong person through mistake has a mathematical impact on the final tally and thus on the proportional effect of every vote," Crawford wrote. "But no single voter is specifically disadvantaged."
Crawford dismissed the lawsuit without prejudice, giving the plaintiffs the ability to refile their case if they so choose.
The complaint was filed earlier this month by three Republican attorneys: David A. Warrington, a Virginia-based lawyer who worked with the 2016 Trump campaign; Harmeet K. Dhillon, a Republican National Committee member from California; and Deborah Bucknam, a Walden-based attorney and former GOP candidate for Vermont attorney general who served as local counsel.
The suit is one of at least 170 filed nationwide that are challenging election procedures amid the coronavirus pandemic. The plaintiffs in the Vermont case had asked for an expedited process given that Condos plans to begin sending out ballots on Friday. The two sides argued their case during a virtual hearing Tuesday afternoon. Crawford's decision came 24 hours later.
Warrington and Bucknam did not immediately respond to a request for comment Wednesday afternoon.
In a statement to Seven Days, Condos said the dismissal was a "win for safe, secure and fair elections in Vermont."
"We remain on the right course of action: planning for the worst by sending a ballot to all VT voters, so that no voter needs to choose between protecting their health and exercising their Constitutional right to vote," Condos wrote. "We are glad to have this lawsuit behind us, so that we can get back to work ensuring that every eligible Vermonter has the opportunity to vote safely."