Vermont Legislature SmartTranscripts:

[Matthew Birong (Chair)]: We are live. Everyone. Thank you, and welcome back to, House of Government Operations. Is 11:10, on January 29, and we are doing a flyby on h five four one, an act relating to interference with voters and election officials. You may may remember that this bill was actually assigned to us when it was first, released, but we, recommitted it to our colleagues in judiciary, and they've been working on it in this, interim period of time. So we're joined by, representative Good Now and counsel to go over the work that judiciary has done on this, for us to consider and possibly take a position on because I believe you intend on voting it out this afternoon.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: That is correct, mister chair. Thank you. My name is Ian Goodnow, rep from Brattleboro, a humbled member of the past judiciary. Thank you for having me. So before the committee is h four five forty one, would you like me to just walk through from our end what we did?

[Matthew Birong (Chair)]: I would love that because it did lead to strike all, correct?

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Yep. So very briefly, the bill is really at the heart of it is trying to establish a criminal penalty for interference with voters and election officials around the time of an election and at the polls. There is a federal criminal statute that exists that this mirrors in many ways. It's been modified some. We're not totally reinventing the wheel. But that federal law cannot apply to state elections. It can only be used in a federal election in Vermont. So there's a gap. And they came from the secretary of state's office, the Vermont secretary of state's office as a potential thing for judiciary to look at to try to close that gap and ensure that we have a criminal penalty that is available for prosecutors for specific acts that could impact voters during elections. So that's kind of the where where this starts. And the bill is really, the the experience of judiciary moving through this bill was the intersection of a vested government interest in protecting voters, in protecting voter rights while also trying to protect First Amendment rights and ensure that we aren't creating a law that violates someone's First Amendment right to free speech. So that's kind of like where it started. So judiciary heard from a number of witnesses. We heard from the Secretary of State's office. We heard from the ACLU, heard from the Defender General's office. We've heard from DSAS, the Department of State Attorneys and Sheriffs. First round, this bill had a lot of other stuff in it, civil investigation things that we realized it was expanding the scope beyond where we wanted to go. We came back with a second draft that removed that civil investigation material and also was really getting at what is the big concern, which is if you're looking at the bill on page two, section two, subsection A, basically what is the criminal charge? So the current language is no person shall intentionally or recklessly intimidate, threaten, or force, or attempt to intimidate, threaten, or force. And then we have a bunch of subsections as to, like, what we're talking about there. So that first language is what a lot of what judiciary worked on. The the first round that we had of the the language was probably facially unconstitutional. It was going to basically, it was too broad. So we had professor Smola in from the Vermont Law and Graduate School. He was the president. He's now just a professor there, but he is basically a first amendment constitutional expert. So he argued in front of the US Supreme Court on these issues. So he provided for judiciary, kind of the guiding light post, which is counterman v Colorado 2023. It's a US Supreme Court decision that states that really when you're working in this realm of first amendment considerations on criminal charges intentionally or recklessly is where we want the language to land. We wanna make sure that that's the that's the the the the bar that we're looking for for the actions taken by an individual. If they're intentionally or recklessly intimidated, threatened, or coarse or attempt to intimidate, threatened, or coarse, then we are we are well within the realm of a constitutional criminal charge. And small Smoll felt that if we included that language, then this would facially be constitutional and would be well within the the realm of something that the the state could have it on the books. So we implemented that. We put that in here on the second round. I there was also a little bit added in if you look at subsection a one a little a one big a big b, causing the other person to vote for, not vote for, any candidate for public office or public question at any election. That's added language that's not in the federal version of this kind of criminal charge. And the the public question is a term of art for basically, like, you know, you're at a town meeting day election, and there's a, there's a vote on the budget.

[Matthew Birong (Chair)]: Ballot initiative. A ballot speaking.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: A ballot initiative of any kind. And so we wanted to ensure that the language here, especially given that we're trying to capture state level, elections, that, if there was some attempt to of coercion or intimidation on a ballot initiative that this criminal charge could capture that kind of activity. So I've probably gone on for way too long, but I clearly like talking about this kind of stuff.

[Matthew Birong (Chair)]: So We we afforded plenty of time for this. Yeah. Like, this is this is a really important two pages.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Yes. Just want to if you were looking at the bill as introduced, it's way longer. The reason why it's way longer is because there was this civil stuff in there around all lives in chapter 17, which is not a title that we a title 17 that we don't really live in that much because we're on 13, which is, like, the criminal charges. 17 is for voting and elections and all that, which is so it should live here. But in 17 are other civil investigation tools that the state's attorneys and attorney general office has. And what we were trying to kind of figure out was whether that civil investigation stuff should also be a part of this type of criminal charge. What we landed was it's being considered in a different bill that the senate has. It's too much for us to be looking at here, and that's why it's removed. So I just I think sometimes when you're looking at bill as introduced versus bill that you're now looking at, and it was 17 pages counts too, you might be like, what happened? So that's what happened.

[Tim Devlin (Legislative Counsel)]: When I first saw this, I thought

[Matthew Birong (Chair)]: it was just an amendment to inserting the larger firm. Yes. Yeah.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: And I think, finally, before I'm happy to take questions on it, where we landed, we had people back in. So Defender General's office had real concerns initially. We had him come back in and he looked at it and he feels much better about it. ACLU looked at it. We made sure that we touched base with everybody after the intentionally or recklessly language was added. And just those three words really helps to make this, make our our witnesses feel more comfortable with moving forward with it. So, with that, happy to take questions.

[Matthew Birong (Chair)]: Yes. Rev Oregon. Yes. Hey, Ian. So, maybe I'm naive and don't know what's going on here in the state, but did I'm just curious. Is are we just doing this to try to get some parity with, like you said, the federal level of things, or have we had some cases where there's been some of that here? Just some context or what you may know and I don't know. Absolutely. Didn't realize. Absolutely. I was curious.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Yes. I really appreciate that question. We heard from the secretary of state's office, including members of their election team. They have, like, a six member election team who talked about threatening behavior that they had experienced in their role that they play in election times in Vermont. And then we also heard from one town clerk who has had, unfortunately, a number of experiences which were It's interesting. I don't know if they actually would have necessarily been captured under this new law.

[Matthew Birong (Chair)]: They might have been teetering on Yeah.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Yeah. Yeah. And and, you know and so I think, generally speaking, the and I think, we we can take politics out of it. The rhetoric around elections and election time has gotten more heated, and I think we can just all we can acknowledge that. And so ensuring that we have a criminal law on the books that can at least protect not protect, but at least punish someone if that unfortunately weren't to get that point. So I think to answer your question, we did hear, from a number of individuals who were experiencing stuff that may or may not have arisen to a criminal charge here, but, it may be the the the trend. The

[Matthew Birong (Chair)]: the trigger for you. I don't know. Maybe we ought to.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Yeah. And I think that also came from the secretary of states. They, like, they, because the town clerks report to them when they've got, and I would defer, but that was my understanding from when does they go to the secretary of state when they've got issues. So secretary of state was hearing stuff, and then that's part of what prompted this. And you expect it

[Matthew Birong (Chair)]: to be very favorable out of your committee? Oh, well,

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: I'm also an attorney, so I never like to speak in hypotheticals. I would I would say, based on where the committee discussion has been, I haven't heard, like except for, oh, this is unconstitutional, but we should probably fix that. But besides that, it's been fairly positive.

[Matthew Birong (Chair)]: Fairly. Yeah. Well, Racie. Yeah. Yeah. No. No. I'm trying to put you on the spot.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: No. No. I appreciate that.

[Matthew Birong (Chair)]: Protect yourself as an I do appreciate that. Well, you're making laws. The worst. Didn't wanna say that. Representative Hooper of Burlington.

[Rep. Robert Hooper (Member, Burlington)]: No consideration or any consideration of escalation, use of a weapon, things like that. The black. Nation be made by somebody?

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Yeah, trying to think of how I would answer that. So, no. Not in this, bill and not in this proposed criminal charge. But I will say that discussion around this new criminal charge was done in consideration of criminal threatening in 13 VSA, that there are other things that you're gonna be able to charge somebody with if they had a weapon and they were bringing it to a polling station or something like that. So we're just trying to give prosecutors enough tools. I think we there's actually there's language in the criminal threatening statute around election officials or or candidates. And so they kind of overlap in some ways, but this is a lot more clearly about election officials and elections and voters, which we don't really have. Know that doesn't fully answer your question, but now the question sort

[Rep. Robert Hooper (Member, Burlington)]: of came from the situation where you'd have I mean, God forbid you put a campaign sign for us, the little line on the

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Oh, the 100 yard? Yeah.

[Rep. Robert Hooper (Member, Burlington)]: Somebody's standing on the other side of the line with a weapon as an indifferentiation discovers.

[Matthew Birong (Chair)]: Oh I see,

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: yeah. So it's going to be it is going to have it's these cases. Okay. Yeah. So these cases are gonna be very fact dependent. And probably, no matter how perfectly we shape this, it's probably going to get a constitutional challenge. There's probably going to be an instance where because I think the the the question would be, is it reckless to have a firearm across the street from a from a polling station and be brandishing it in a way that maybe someone could feel intimidated by them. And there will probably be an argument there about whether it is or isn't. And there's also the prosecutorial discretion that always lives in the background here, where the case comes to them and they're like, I don't know if this actually satisfies it. So they may not even press the charge. So that conversation did come up somewhat not as much about firearms, more just like, well, what if someone's just screaming on the side of the road near the polling station, screaming about whatever? Is that actually going to and so just that and then a lot of what we heard was it's gonna really be depend depend on the case, and it could be challenged.

[Matthew Birong (Chair)]: Anything else for the member from the judiciary? No hands. Hands from our guests online. Alright. Remember, if you're relieved. Okay.

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: Thank you very much.

[Chea Waters Evans (Ranking Member)]: Thank you.

[Rep. Robert Hooper (Member, Burlington)]: You

[Chea Waters Evans (Ranking Member)]: know, it's good that that language is in there about the public question because then it mirrors what is in s 23. All coming together.

[VL Coffin IV (Member)]: I cut that when I did

[Matthew Birong (Chair)]: the sidebar with counseling. It's not a type of age. I think we've got another that we're looking at later, but it just sits in between these factors.

[Sandra "Sandy" Pinsonault (Member)]: Really? Yeah.

[Matthew Birong (Chair)]: No. And that's more about is it? Thank you. Devlin, how are you?

[Tim Devlin (Legislative Counsel)]: Doing well. Thank you. For the record, my name is Tim Devlin, legislative counsel. Just an initial note about S 23. Representative Good note was referring to that civil investigatory authority that was being expanded. That is indeed in s 23. That was the Okay. Was referring to, Robert. So Criminal incident

[Matthew Birong (Chair)]: Criminal behavior, in other words.

[Tim Devlin (Legislative Counsel)]: I think we got if there's criminal speeches, simple on that one. I I'd have to ask a mixer. But so, community members, you should have, access to draft 2.1 of a committee event coming from house judiciary committee to h four sorry, five forty one. That is an act relating to interference with voters and election officials. Just gonna orient, the committee as to where we are in the law. I thought it'd be it's kinda useful to briefly describe, what is already in statute, elsewhere, kind of somewhat related stuff and how this differs from us. So starting from the very top, US constitution gives primary authority over election administration to the states. That can be found in article one, section four, clause one called the elections clause. Federal government is involved in legislation, sorry, in election legislation though. It's pretty much limited to federal elections and instances of citizen rights. So everything else was left to the state's realm to determine. So this is where we are. We do have some current laws already in the books. Representative Goodenow was great in speaking to some of the provisions existing in criminal titles that is 13 specifically we have 13 BSA seventeen oh two which is the criminal threatening law and there's two subdivisions D and F in case anybody's curious and those are essentially enhancements for the regular based criminal threatening and those have to do with, particularly candidates, election officials, those criminal threats are post doors, individuals, or voters in certain circumstances, I believe, in proximity to the polling place. We do have, an entire chapter in title seventeen thirty five, titled, Offenses Against the Purity of Elections. And that's where we're gonna be amending right now. And this is where you'll find statutes having to do with voter fraud, misconduct by election officials. But really nothing yet, in particular aside from maybe some oblique references here and there in one or two of those statutes, about third party conduct, or interference or obstruction by somebody who's not a voter or a election official. So just third person. So, and if anybody's curious for that, really, we actually have 17 VSA twenty seventeen, which is what we'll be amending here and then adding a new section afterwards. But the interference with voter language in 17 BSA nineteen seventy two in section one, you can see by what struck out is a little vague and different enough to arguably merit the addition of a new section, but somewhat similar enough to confuse the new section, therefore justifying its removal, for clarity's sake. So turning now to the bill itself, the amendment, it is indeed very short, just the two sections really three accounting for the effective date. But the first section amends that to be made redundant language in 17 VSA 1972, and really just, takes out, the subsection b having to do with the appearance of voters. If anybody is curious, the remaining language having to do with showing ballots is actually anti bribery, anti corruption provision. The idea historically being that, showing one's ballot, after voting is proof can be proof of selling one's vote. So that's been prohibited there. Although there's kind of more modern questions about the advisability of that session, but that's really not what we're here to talk about today. So section two on page two is really get to the meat of substance here. So it will add a new section 17 VSA nineteen seventy five to be titled interference with voters and election officials. And subsection a is, what is prohibited conduct. Subsection b is the penalty. We'll start off with a, no person shall intentionally or recklessly intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce. Then we have one, really anybody trying to exercise their right to vote. And then two, so really the voter. And then two is the public servant, election official or public employee. I'll just stop there and drill into this a little bit further.

[Matthew Birong (Chair)]: Water Zevents.

[Chea Waters Evans (Ranking Member)]: Thank you. Can you tell me what specifically recklessly needs?

[Tim Devlin (Legislative Counsel)]: Yes, I can.

[Chea Waters Evans (Ranking Member)]: I knew you could.

[Tim Devlin (Legislative Counsel)]: I have to question. So under Supreme Court jurisprudence, that is the US Supreme Court, specifically a case, countermen v Colorado from 2023. The court looked at this in the context of what constituted a true threat when we come when the matter comes to, on the matter of, protected free speech in the first amendment versus what's not protected, there is a body of law discussing the idea of true threat. True threat is incensed speech which is not blanket protected. Not all speech is protected from government infringement. You can think of defamation, fraud, let's see, not profanity, but geez, what is the term I'm reaching for here? Incitement and obscenity, sorry. But true threat is one of those historically unprotected categories. And in order for it to be a true threat, really, there needs to be some sort of mindset of the person uttering the threat and so what we call a mens rea in the judicial context. And so there are essentially four different, probably speaking, levels of kind of thought or kind of mental responsibility, you can kind of call it another way, which laws can kind of hinge on to see whether they've satisfied this perpetrator or alleged perpetrator, and to what degree of intent really is involved. So the highest we have is purposeful or intentionally. We have that there. So but there's an or there so we get to a lower rank one. So we have purposeful, knowledgeable, purposeful. I'll just define all of them for context, consciously desires a result knowledgeable or knowingly that is, is aware that result, is particularly certain to follow. Recklessness third, we have, consciously just somebody who consciously disregards a substantial and unjustifiable risk that the conduct will cause harm to another. The threats context, this means that a speaker is aware that others could regard his statements as threatening violence and delivers them anyways, kind of just doesn't care. And then below that is, negligence, which is you're not aware of the risk, but you probably should have been. It's a common sense kind of thing. So this is the core, essentially in a balancing test as Encantormen was looking at the rights of the individual versus to what degree would law enforcement efforts be hampered by this. And so they, chose in the middle of actually, I won't get into it here, but there was broader debate about what is objective versus subjective frame of thought. They just kind of went in the middle for recklessly. Essentially, somebody who just doesn't care about the result here. So plugging this in here, we have somebody who is acting without that care or intentionally to, to intimidate, threaten, per course, or attempt to do so, of any other person, either obstructing someone's right to vote or obstructing the administration of an election. We'll get back to that.

[Rep. Robert Hooper (Member, Burlington)]: Does that answer your question at all? Or

[Chea Waters Evans (Ranking Member)]: It does perfectly. Thank you. So interesting.

[Tim Devlin (Legislative Counsel)]: So and actually, was gonna be what was gonna go next anyway. So that mens rea is in the first few words of subsection A there that no person shall intentionally or recklessly. So let's take a look at that first category of section one here. So they can't intentionally and recklessly intimidate, threaten, of course, or attempt to do so any other person for the purpose of A, obstructing the right of the other person to vote or to vote as the other person may choose, or b, causing the other person to vote for or to not vote for any candidate for public office or public question in an election. So those seem very similar, but we kind of extrapolate from what the opinions like, a, could be generally described as a broader, conduct than just actually, you know, marking your ballot, but something like, your voter registration would be protected under this being part of your right to vote. Something not necessarily bound to election day. B would be indeed when filling out that ballot, you know, but not necessarily limited to, actually election data. Think about it because it would be something along the lines of the threat to vote this way or something harmful or coercive or threatening, you know, be the consequence of that. So that all of A, one and B have to do with, obstructing the voter, exercise the right to vote some way or another. Turning to two, So again, no person shall intentionally recklessly intimidate, threaten, or course, or attempt to, see, intimidate, threaten, or course, a public servant, an election official, or a public employee for the purpose of obstructing the administration election. So one thing you'll just notice off the bat is this does not include candidates. It's just really about the administration of election. And so this could it's broad and can cover things like tampering with forcing somebody to obstructing through drop boxes for balance or something like that. Or something with tabulators or something with calling it a bomb threat to a site or something like that. Those could all fall under the context contemplated here, essentially. So long as they're in the context of somebody intimidating, threatening, course, and another individual to do so. Then b, we move on to the actual enforcement mechanism or the consequence really for the teeth. So a person who violates subsection a, we just spoke about, shall be imprisoned not more than two years or fined not more than $2,000 or both. So and so just overlooking, looking back to my notes here. Should just mention that section two in Represent Good Now already references, but was roughly based on a federal, equivalent, and that citation is 18 USC section five nine four, titled intimidation of voters for those who are curious, but has significantly morphed since the original inception. Any questions?

[Matthew Birong (Chair)]: Questions from the table?

[Sandra "Sandy" Pinsonault (Member)]: I think I do, but I think I might have just re read it. Now I don't, but just to be clear.

[Matthew Birong (Chair)]: Ask the clarifying question, members. That's why we have all these bodies

[Sandra "Sandy" Pinsonault (Member)]: Yes, at the I'm elected official, as the town clerk. And for the purpose of obstructing the administration of an election. Does that mean preventing somebody from voting?

[Tim Devlin (Legislative Counsel)]: Yes. That'd be in the section above that.

[Sandra "Sandy" Pinsonault (Member)]: So if I, I'm not 10:30, have

[Matthew Birong (Chair)]: to worry about it, but

[Sandra "Sandy" Pinsonault (Member)]: in the past, if I had somebody that would come in to vote, and I knew they didn't live in my town, and they wanted to vote here anyways, because this is where they used to live, and they wanted to vote in my town, I'm away at college or whatever, they were I no longer on my vote would tell them that they couldn't vote. Would I be obstructing them the right to vote?

[Tim Devlin (Legislative Counsel)]: I would say it depends on whether they do have the right to vote there. Did they move back? Are they reestablishing residents?

[Rep. Ian Goodnow (House Judiciary, Brattleboro)]: They're just Visual ballots.

[Tim Devlin (Legislative Counsel)]: Mean, that would be they told them the possible voter fraud statues there.

[Sandra "Sandy" Pinsonault (Member)]: I just want make sure this has put the town clerk in a wrong situation. Okay. You do have those, that, oh, you moved away five years ago, we put it on my checklist, and we've purged you because you hadn't voted in the last two general elections, now you're appearing. Although then you get your same day voter registration, so we tend to not deny anybody. There are always those that try to sneak in, that's right.

[Tim Devlin (Legislative Counsel)]: And there's other sections in this chapter here, those are the offenses against the purity of elections, speak to administrative conduct, particularly. So, I'm not sure that'd be probably more apt to look at versus this.

[Rep. Robert Hooper (Member, Burlington)]: Yeah.

[Sandra "Sandy" Pinsonault (Member)]: I always get on the side of not denying anybody. I mean, I've had some very angry, crazy situations where it got pretty scary and not sure if I was being protected. Know, with the gun and the whole bed pack, yeah, it's not a story. Okay.

[Matthew Birong (Chair)]: Okay. Just giving you some space to walk through that thought. Yep. Rev Coffin.

[VL Coffin IV (Member)]: And I just for my own clarification that for a for a where it says obstructing the right of the other person to vote or to vote as the other person may choose, that one would apply more toward, like, if you're voting on the school budget, trying to Yes. Change it, force you to vote Yeah. Or if you don't want it or Right. If you vote for it if you

[Tim Devlin (Legislative Counsel)]: kinda persuade or induce you into voting a certain way that's against your will. I would say that's probably more a or a of one b. Okay. I was trying to

[VL Coffin IV (Member)]: make sure I was reading that right where that covers more of that than,

[Tim Devlin (Legislative Counsel)]: you could probably fall under both.

[Matthew Birong (Chair)]: Yes. Rutland is probably

[Sandra "Sandy" Pinsonault (Member)]: And then that goes right back to the voters oath. When you take the voters oath, you know, your oath states that you won't take a bribe or be influenced by another person when it comes to casting a vote. Those are kind of all ties in.

[VL Coffin IV (Member)]: All right.

[Matthew Birong (Chair)]: Any other questions?

[Sandra "Sandy" Pinsonault (Member)]: I would get the bell driver. Sorry to miss your

[Matthew Birong (Chair)]: No, no, no, Yeah, no, no. I know you were attending another matter. So, I just wanted to give you the chance to ask any questions or weigh in, but soon. Okay. Judiciary does have this up for a vote this afternoon. So, us taking a position, I know it would be preferable to them, so it is an informal straw poll. I'd like to just ask briefly, we have two members joining us via Zoom. Do you have any questions or commentary for this before?

[Unidentified Member (Zoom)]: No, it sounds like judiciary covered all the bases to make sure that this is as sound as possible, and I definitely understand the rationale behind it.

[Lisa Hango (Vice Chair)]: You, ma'am. No, thank you.

[Matthew Birong (Chair)]: Thank you, madam vice chair. Okay. So, straw poll, motion to find it favorable thumbs. Yep, I got one thumb on the digital screen. I'm raising

[Unidentified Member (Zoom)]: my thumb up.

[Chea Waters Evans (Ranking Member)]: I'm raising my thumb up.

[Matthew Birong (Chair)]: Okay, cool. Alright, so that provides us with a ten-zero-one. Yes. 100. Press. Right here. So Alright. Alright. Thank you, everyone. Thank you, judiciary. This is an important piece. So Thank you. Appreciate it. Thank you, counsel. Much. Alright. So we will be back here at 1PM, to talk about flood prone municipalities and a series of other topics. We're offline for lunch. See y'all in an hour and fifteen minutes.