Ainsworth not likely to get new election: Gov Ops hears arguments in race decided by one vote

by Rob Roper

David Ainsworth (R-Royalton) lost his bid for reelection last November to the Vermont House by just one vote to Sarah Buxton (D-

Dave and Peggy Ainsworth

Royalton). Due to some questions surrounding the vote count, Ainsworth brought his case to the legislature in hopes that they would authorize a new election.

At the heart of Ainsworth’s complaint are two main issues.

The first is that there was a two ballot discrepancy between the number of ballots counted on the evening of the election and the number of ballots counted in the recount. What happened to those ballots?

The secretary of state’s office, after interviewing the town clerk involved and investigating the procedures followed, chalked it up to human error in counting. It’s impossible to know which count is correct, the first or the recount. But, there is no evidence that the votes were tampered with.

The second issue is that two Vermont Law School students showed up on election day, and they were not on the town voter checklist. The students claimed to have registered to vote through a program at the school, but there was no record that they had. The town clerk had them sign an affidavit under penalty of perjury that they had indeed registered to vote in the district, and they were allowed cast their ballots.

Ainsworth said of this, “So, we essentially have same day registration here, but that’s not  the law.” There is no way to prove or disprove that these individuals had actually registered to vote. There are no teeth to the perjury threat. As such, these two votes should be invalid.

Rep. Ron Hubert (R-Milton) raised a case in a Winooski regarding a school board election. The precedent set in that incident stated that if the margin of questionable ballots is greater than the margin of outcome, a new election is the only remedy.

However, testimony from the Secretary of State’s office and Legislative Counsel did not see it that way. Kathy DeWolfe said that unlike school board races which are under the jurisdiction of the courts empowered to call for a new election, House races are under the jurisdiction of the legislature. Constitutionally, she argued, the legislature can vote to find a candidate “unqualified” for office, but this would only create a “vacancy.” Tt would then fall upon the governor to fill this empty seat.

If the legislature were so inclined, it could pass a law authorizing itself to call for a new election under the circumstances, but given that the Government Operations Committee and the legislature is controlled by Democrats, and David Ainsworth is a Republican, that’s not likely to happen.

As for who actually won the election given the vote discrepancies, Kathy DeWolfe said, “When your talking about one and two vote margins, we’ll never know. That’s just humans.”

Other notes from Gov Ops

Voters who can’t be challenged. Dennis Deveraux (R-Mt. Holly) raised an interesting conundrum during testimony over the Ainsworth case. Vermont law is clear that a voter’s residency cannot be challenged on election day. If someone does want to challenge a voter’s eligibility based on residency, it has to happen before election day, which can be done by referring to the voter check list. However, voters like the ones Ainsworth challenged, who are not on the voter checklist, show up on election day, and are allowed to vote after signing an affidavit, can never be subject to a residency challenge. This is a glitch in the law that must be fixed.

iPads for everyone? All the members of the Government Operations committee were sporting snazzy new iPads as part of an experiment to see if the legislature can save money by going paperless. The committee’s chair, Donna Sweaney (D-Windsor), said that each legislator is responsible for generating an estimated $450 per year in paper costs. The iPads cost $600.