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Vermont Supreme Court: Ballots are Public Records

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Score a victory for public records.

The Vermont Supreme Court ruled today that election ballots are not exempt from public inspection under the state's public records act.

The 4-1 ruling ends a more than three-year legal battle between a lone voter in Fairlee and town officials, the secretary of state and the attorney general. Justice John Dooley dissented.

Timothy Price, who served on the town's Board of Civil Authority in the fall of 2006, ended up suing the town in 2008 to get access to ballots and tally sheets from the November 2006 election.

Price served as his own lawyer. In doing so, he went up against not only lawyers for the town, but also Attorney General Bill Sorrell, who sided with Fairlee.

When contacted by Seven Days about his victory, Price was stunned. He hadn't yet been informed of the ruling.

"That's really wonderful news," said Price. "It's been a very long process."

What prompted Price to sue for access was the 2006 state auditor's race. The election night results were so close between incumbent Republican Randy Brock and Democrat Tom Salmon that a statewide recount was held.

According to the 2006 recount results certified by the judge, Salmon received 111,770 votes and incumbent Republican Randy Brock received 111,668 votes, giving Salmon the slimmest of victories by 102 votes. On election night, Brock led Salmon unofficially by nearly 900 votes, but that margin narrowed to 137 votes a week later when the secretary of state’s office released the official tally.

Why such a wide swing? During the recount it was discovered that some towns — particularly towns that hand counted their ballots — had errors in some of their tabulations.

Fairlee was one of those towns. After the recount, Salmon gained 11 votes and Brock gained four. Those 15 votes had previously been logged to other candidates on the ballot. Only about 350 votes were cast in that election, Price said. The error, Price learned, came from the tally sheets, which are collected and then added together for a final count.

"We were very naive at the time," said Price. "We wanted to know, how could this many errors have occurred in this one race? We were willing to have whomever wanted to watch over us, but we just wanted to put the bag back on the table and open it up and look over the tally sheets. It only seemed prudent for [us] to be able to go back as the Board of Civil Authority and see how well we were doing our job."

It wasn't so easy, Price later learned. The town was reluctant to re-open the bags and by the time he made a request to see them, the town had destroyed the ballots — as allowed by state law. Price argued, however, that the town shouldn't have destroyed the ballots because he had made requests to view them prior to their destruction.

Writing for the majority, Justice Brian Burgess said the town was wrong to destroy the ballots — even though it was allowed by Vermont's election statutes — because Price had made a request to view the ballots and tally sheets in order to determine how the BCA had incorrectly tallied the 2006 election votes.

"As noted, the trial court here denied plaintiff’s request for a preliminary injunction to preserve the ballots from destruction, reasoning that any right to public access was subject to the Town’s discretionary authority to destroy them after ninety days. Not surprisingly, that is precisely what occurred," Burgess writes.

Referring to the public records act, or PRA, Burgess adds: "Under circumstances where a PRA request is pending, however, this destruction must be treated as unauthorized. The PRA establishes a clear and orderly process for the handling of PRA requests, and we discern no basis to exempt this or any similar request from its provisions."

The court observed that the records statute provides for an "orderly process" to file a request, have it denied and then have that denial appealed.

"This orderly process would be circumvented, and the citizen’s right to access defeated ... if the election statutes were applied to allow the custodian to unilaterally destroy the requested ballots and tally sheets even when an access request remains pending," the majority ruled.

In his dissent, Dooley said the majority was essentially making up new law rather than ascribing to the governing statute. By law, the town clerk is allowed to destroy ballots. Saying otherwise has now turned the Fairlee town clerk into a criminal, the justice reasoned.

"This is an example of creating a right where the governing statute does not provide for it," writes Dooley. "The right the majority has created is logical for the reasons it states. I agree that it would be good public policy. I cannot agree that we can make it up."

The majority disagreed.

"Contrary to the opinion of our dissenting colleague, this result is not 'made up,' but is necessarily compelled upon reconciling the two competing legislative schemes: one establishing the goal of open government with an express requirement that its provisions be 'liberally' construed to that end, 1 V.S.A. § 315, and the other seeming to authorize a purposeless destruction of public records in frustration of that goal," wrote Burgess on behalf of the majority.

Dooley wasn't buying the logic, though, and said it could set a dangerous precedent and urged lawmakers — who are in the final stages of a major overhaul of public records laws this session — to better define the relationship between conflicting state laws governing elections and public records.

"This opinion comes out during a legislative session in which the Legislature is considering amendments to the PRA," wrote Dooley. "Whatever the outcome of this case, I hope the Legislature will consider the issues confronting us and specifically amend the language of the statutes to more clearly define the interrelationship between the right of public access and the authorization to destroy public records, where it exists."

For his part, Price is glad his long legal battle is over.

"It was a terribly lonely fight. I had a very steep learning curve," said Price. "How do you expect the voter to be represented when an individual has to go through this?"

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