VICTORY — A ruling by a Vermont Superior Court judge has led to the removal of 13 percent of a small Northeast Kingdom town’s electorate from the voter checklist, a win for plaintiffs who argued that part-time residents are not allowed to vote in Vermont elections.
The decision handed down Tuesday by Judge Thomas J. Devine clears the way for a legal vote in Victory, Vt., on Town Meeting Day next month. It also helps clarify the legal definition of a Vermont resident for voting purposes.
St. Johnsbury-based Attorney Deborah Bucknam, and her client Tracey Martel, alleged in a March 21, 2017, complaint and mandamus petition that Victory’s voter checklist contained unqualified voters and non-residents, 11 of whom cast absentee ballots in last year’s Town Meeting Day. The complaint further stated that multiple non-residents were illegally added to the voter checklist, in violation of a constitutional mandate that elections be “free and without corruption.”
Selectboard member Tracey Martel ran unsuccessfully for the Victory town clerk and treasurer positions on Town Meeting Day last year, losing both races to Town Clerk Carol Easter by less than four votes.
As of last March, Victory had 84 registered voters on the town voter checklist. Of that number, 76 votes were cast on Town Meeting Day 2017 — 41 by absentee ballot and 35 in person. However, Victory has only 63 residents, according to the 2010 Census, meaning the numbers simply didn’t add up.
The judge gave the OK for the town to move ahead with election preparations, provided the checklist is cleaned up.
“The Town of Victory may proceed with having the ballot prepared and the sending out of absentee ballots, provided that, Laury Saligman, John McGill, Andrea Poginy, Isaiah Preston, Robert Flanigan, Jr., Toni Flanigan and Brendan Flanigan are removed from the voter checklist due to lack of residency,” Judge Devine wrote.
The Flanagans, the Connecticut family listed among the defendants in the yearlong voter-fraud case, admitted voting in Vermont elections, according to public court documents. Family members said they got approval to do so from the Vermont Secretary of State’s office.
Vermont Secretary of State Jim Condos told True North Reports in August he was “not aware of any statements made by any of the defendants,” and added that his staff is careful “not to make any conclusions or determinations about particular circumstances” when new voters contact his office to inquire about voter eligibility.
Following Tuesday’s ruling, Condos told True North he was “pleased that the court has reached a decision in the case.”
“We are hopeful that, with these questions behind them, the town can move forward in a more constructive and cooperative manner,” Condos said in a written statement.
“This case shows that the process works as intended. Following a review of the specific facts, the Victory Board of Civil Authority (BCA) concluded that certain individuals were qualified to be on the checklist based on the facts they asserted. On appeal, the Superior Court again reviewed the facts and came to its own conclusion, in this case disagreeing with the BCA regarding certain individuals and ordering they be removed from the checklist,” he added.
Condos praised the court for acknowledging “the subjective, fact-based, case-by-case nature of these evaluations of residency for the purpose of registering to vote,” and said it has been his office’s position that a person’s intent to establish residency and thus be eligible to vote “must be accompanied by sufficient ‘act or acts consistent with that intent,’ as the statute reads.”
Among the outcomes of the judge’s decision is that just because a person owns property in a Vermont town, it does not mean that the person has established residency in the state.
“(State) Title 17 defines ‘resident’ to mean ‘a natural person who is domiciled in this State as evidenced by an intent to maintain a principal dwelling place in the State indefinitely and to return there if temporarily absent, coupled with an act or acts consistent with that intent,'” Devine wrote in his decision. “Defendants rest on Ms. Saligman and Mr. McGill’s statement that they intend to move to Victory in ten or 12 years. This statement is an admission that they do not currently reside in Victory. Rather, Victory is where they would like to someday reside.”
Bucknam, in a post-decision interview with True North, said the Superior Court ruling will have a powerful effect on towns and voter rolls across the state.
“Just think about it: There were 84 registered voters on the Victory voter checklist when Tracey Martel and I filed this suit a year ago. Today 11 were taken off the checklist, so that’s 13 percent of the electorate. That’s got to be a record here in Vermont. All of the voters that we complained against are off the checklist,” she said.
Bucknam said she was pleased that all of the court-issued decisions went in the favor of her client. “The court was very clear about what factors need to be looked at regarding who was (and wasn’t) a resident. As a result, this ruling will provide good guidance to other towns.”
Of the various defendants named in the lawsuit, Robert and Toni Flanigan, Brendan Flanigan, John McGill, and Laury Saligman were taken off by granting summary judgment. Robert Flanigan III and Angelo Spera voluntarily removed their own names from the town voter roll. Krystal Gray and Wayne Moodie failed to respond to the Victory Board of Civil Authority and subsequently were removed by board officials. And Andrea Poginy and Isaiah Preston had their names removed by default.
Bucknam noted that Judge Devine stated that since Robert and Toni Flanigan list their address on their federal income tax returns as Granby, Conn., and pay residential property taxes in Connecticut, and have yet to declare their Vermont homestead, they are not legal Vermont residents.
She added that the Flanigans attempted to file a counterclaim to have the judge review other Victory voters not named in the Martel lawsuit last year — principally Ruth Neborsky, former town clerk/treasurer, and her two sons. That motion for a counterclaim was denied by the court.
Martel said she’s elated and relieved with the court ruling this week. “I feel now that we can move forward; we’re not in limbo anymore,” she told True North.
The upcoming Town Meeting vote will include both the 2017 budget (unresolved) and the 2018 budget. Martel said she has no current plans to run for town clerk, considering the fact that she likely would have won her bid last year had those 11 unqualified Victory voters not been on the voter checklist in the first place.
“It was just the town clerk’s seat for me,” she said. “Anyway, my lawsuit was really about the illegal voting. Now it’s time to move on.”
Martel stressed that voter suppression can happen in many ways, including the way it happened in little Victory.
“I’m not the least bit bitter about this,” she added, “I’ve received a lot of positive feedback from other town (officials).
“We’re not the only town with these kinds of problems. The lesson here is that having non-residents vote in an election is really just another kind of voter suppression; it negatively affects the legal residents living here. So this is the year for cleaning up.”
Lou Varricchio is a freelance reporter for True North Reports. Send him news tips at firstname.lastname@example.org.