Burlington City Council candidate Aleczander Stith is taking the Ward 7 election results to court, contending that the city may have violated election law by failing to contact voters who cast defective ballots.

Stith, a Democrat, asked for a recount after losing the Town Meeting Day election to incumbent Councilor Ali Dieng, an independent, by just two votes. The recount, held at city hall on Monday, confirmed Dieng’s 795 to 793 victory. Stith filed his appeal in Chittenden Superior Court on Friday.

At issue are seven ballots that local officials marked as “spoiled” and were not opened or counted on Town Meeting Day. City officials also didn’t consider them in the recount, despite a request from Stith’s attorney, Ed Adrian.

All seven ballots were mailed in and were deemed defective because the voters didn’t sign the certification envelope; placed the ballot in the wrong envelope; or didn't include a ballot at all.
Vermont law says the city must mail voters notices to fix incorrect ballots that were received more than five business days before an election. City officials did this for three of the ballots, according to Stith’s filing.

But the city didn’t “make reasonable efforts” to contact the four remaining voters, whose ballots were received within five days of the election, the filing says. City officials said they didn’t have contact information for two of those voters, but did for the two others.

“Efforts should have been made to contact them via phone,” associate city clerk Sarah Montgomery wrote in an email to Adrian, which was included in the court filing.

On the ballot envelopes, officials wrote the steps they took to contact each voter, but the documents are in a sealed bag and can’t be inspected, according to Stith’s filing. The envelopes weren’t copied or photographed beforehand.

“Therefore, there is no way to determine what — if anything — was done to comply with the requirement that the City Clerk’s Office make reasonable efforts to contact the voters who cast the allegedly deficient ballots,” the filing says.
Stith is asking a judge to determine whether the city complied with election law and to consider if the ballots were actually spoiled. If the city did violate the law, Stith is requesting that the voters in question be allowed to correct their errors and to include their votes in a final tabulation.

Stith's team is hoping to resolve the issue before newly elected members of the council are sworn-in on April 4.

"Obviously if the law prevents something from being counted, we're going to follow the law," Adrian said, "but [Stith] wants to be sure that in an election this close ... that if it can legally be counted, then it should be."

John Franco, Dieng's attorney, said city clerks aren't required to babysit voters up until Election Day, and that voters are ultimately responsible for submitting ballots correctly. He said asking a court to count spoiled ballots would be unlawful.

"That’s going to be our position," he said. "There’ s statute, and it says when the polls close, that’s it."

City Attorney Dan Richardson agreed with Franco's analysis, saying municipalities aren't obligated to track down voters with defective ballots.

"In that respect, [Stith's] notice of appeal goes beyond what I think the city's responsibility is under the law," he said. "We don't want elections to hinge upon whether the municipality has checked or double-checked. We want it to hinge on individual voters."