A state judge on Monday affirmed Ali Dieng as winner of the Ward 7 Burlington City Council race, rejecting a claim by Democratic challenger Aleczander Stith that city election officials didn’t properly handle several invalid ballots.
The ruling appears to settle the contest, which incumbent Dieng, a political independent, won by two votes. Stith said he does not intend to pursue any further appeals.
The decision followed a lengthy hearing Monday afternoon in which four potentially pivotal mail-in ballots were scrutinized in open court. The ballots were not counted in the Town Meeting Day election, nor in a recount that followed, because the voters who sent them either did not place their ballot inside a security envelope or did not sign the envelope.
A recently enacted state law requires elections officials to notify voters that their ballot was defective. If the defective ballot is received more than five business days before the election, officials must notify the voter by letter. For ballots that were received closer to Election Day, as was the case for the four contested ones, officials must make "a reasonable effort” to notify the voter.
Stith contended that the steps taken by the city — looking for the voter’s email or phone number in the state voter checklist, and contacting them if the information was available — weren’t enough. His attorney, Ed Adrian, suggested the city should have Googled the voters to find their phone numbers or traveled to their addresses to try to notify them directly.
Judge Samuel Hoar Jr. ruled that even if Burlington election officials didn’t do everything they could to track down the would-be voters, their steps were reasonable under the circumstances.
“The legislature did not say, ‘Use all reasonable effort,’” Hoar said as he issued his decision from the bench. “Importantly, they did not in any way suggest that a reasonable effort would actually require someone to physically go to a physical address in order to deliver a notice.”
For two of the contested ballots, the voters’ registration did not contain contact information. For the two others, an election official called the phone number on file but couldn’t leave a voicemail for one of them.
The city and Dieng said that more extensive efforts would be burdensome to carry out on the eve of Election Day.
“The responsibility ultimately lies with the voter, not with the clerk,” City Attorney Dan Richardson said.
Following the hearing, which was paused at one point so the judge could tend to a barking puppy in his chambers, Stith said he accepted the ruling as final. He called on the legislature to clarify the 2021 law for future elections.
“I think the process has been followed, and I think it’s incumbent on the legislature to fine-tune that,” Stith said.
The council's organization day, when newly elected members are sworn in, is on Monday, April 4.