Vermont Legislature SmartTranscripts:

[Rep. Matthew Birong (Chair)]: Sony. It's alright if you are live.

[Lauren Hibbert (Deputy Secretary of State)]: Yes, please.

[Rep. Matthew Birong (Chair)]: Good morning, everyone. We are starting up our first order of business, on Wednesday, April 1. The we're taking up ads two ninety eight, an act relating to creating the Vermont Voting Rights Act. We're doing an introduction walk through and witness testimony, and we have with us senator Ron

[Tim Devlin (Legislative Counsel)]: the sponsor of the bill.

[Sen. Kesha Ram Hinsdale (Senate Majority Leader, Chittenden Southeast)]: Thank you for having me. I'm Keisha Ramhansdale, Senate Majority Leader, Chittenden Southeast, and the lead sponsor of H298. I think I'll be relatively quick. I mean, this, you know, we set out to protect and enshrine voting rights for all Vermonters in light of federal overtures of potentially trying to intimidate people out of voting or confuse people out of voting or a potential Supreme Court decision that could par the sixty plus years. Yeah, we're at sixty plus years of not only enshrining the Voting Rights Act in 1964, but then litigating and trying to further deepen what it means and how it's implemented. So I think what you may have seen or heard is that the bill went through multiple iterations or had a lot of offerings to it in the Senate that I think were introduced in good faith to try and underscore the best of what other states have come to through either litigation or just seeing situations on the ground that maybe we haven't seen yet in Vermont. That all said, we should be doing something. It got narrowed down considerably to what would really give the Secretary of State's office what they need to do what they can to protect voting rights across the state should they fall under attack in November 2026, without violating some of our principles that, you know, are I think, been held more strongly maybe for the last decade, as politics have creeped into the building a little bit more, that we not try and do anything that would influence elections, general elections in an election year. That said, I was talking to you here this morning because I just simply worry about our ability to protect Vermonter's right to vote this year and into the future. Mail is getting slower and harder to use as legitimate resource for getting your ballot on time. There are many people who would be afraid to see someone with a weapon at their polling place, and I know you all have been working on that with House Judiciary, and we now have a bill to that effect. I go back to my experience in South Burlington a few weeks ago, where I was several feet away from an ICE agent who was identified very poorly, wearing plain clothes in a rental car from New Hampshire, holding a fully automatic weapon with a face covering. I think we saw that. In South Burlington, we've seen it probably in other parts of our communities that are in the shadows right now. I do not want to see that at our polling places. And I think we have to take all of these threats very seriously at this point, based on what we're starting to see. So it won't necessarily be a single law or a single underpinning of our existing laws that gets us to the place where we feel we still have free to share elections. But I hope we take this initial step at this point to ensure that we have a state voting rights act that we can build on for the future.

[Tim Devlin (Legislative Counsel)]: Sure, thank you.

[Rep. Lisa Hango (Vice Chair)]: Did this come in response to any particular elections related incidents that you know of?

[Sen. Kesha Ram Hinsdale (Senate Majority Leader, Chittenden Southeast)]: This originally, I would say, came in response to threats to the Voting Rights Act at the Supreme Court level. So cases making their way through the circuit that could impact what we consider harassment, intimidation, or particular groups being denied their right to vote. I will say, we have unique situations in Vermont that the Secretary of State's office has been trying to address. We pat ourselves on the back and do very well by most metrics for accessible elections. We do not do well for people with disabilities. As we've seen, we rank very low in the country for access for people with disabilities. When I worked for the city of Burlington, we didn't get some sustainability ratings that other states received, or big cities like Northampton, Massachusetts, because we weren't doing our utmost in places like Burlington and Winooski to enfranchise voters who speak other languages or don't have as much experience with voting. We have a lot of seniors, obviously, who can't participate as easily in nighttime meetings or wait for a ballot at the curbside for long amounts of time. So there is just a lot more we can be doing. We even have, we've worked on ensuring that we take advantage of what is very powerful example of voting rights we have, which is ensuring that our imprisoned population can vote. But we have seen from national groups that that means if somebody doesn't know their rights to vote in their home community, and they end up all voting in the place where the prison address is, that concentrates their vote in one county and is considered kind of not a best practice. And the Secretary of State's office has been working on that. So we can and should always pay attention to where people are either experiencing disenfranchisement or group feels.

[Rep. Matthew Birong (Chair)]: Thank you. Registered.

[Rep. Sandra "Sandy" Pinsonault (Member)]: Has there been any reports of anybody being disenfranchised to the Secretary of State's office?

[Sen. Kesha Ram Hinsdale (Senate Majority Leader, Chittenden Southeast)]: I'm sure they can speak to how recently that may have happened. I mean, I started in my election experience in 2008, where there were what I saw as some of the early efforts to require identification or tell people in line, you're not supposed to be voting here, you're a student, etcetera. We are high in the rankings of who is allowed to vote in the country because we have same day voter registration. And because, as I like to say, when I registered voters as a student for my first house run, if you breathe oxygen and you have an address in Vermont, you have the right to vote. And I watched as people tried to dissuade young people from being able to exercise that right to vote in Vermont. Well,

[Rep. Sandra "Sandy" Pinsonault (Member)]: I think we've done a lot in state of Vermont since my time as a town clerk, and I started in 2005, to not disenfranchise any voter. We have same day voter registration, we have mail in ballots, we're one of few states that require an excuse to have a mail in ballot. For the Presidentials, we mail ballots to everybody. I had incarcerated residents that I mailed ballots to in the state prison and some places in the South, I don't see where anything here is not what we're already doing. And we have the Havoc machines for the disabled, where they can vote by speech, by hearing, by blindness, by all those other gadgets. As far as the seniors go, most town clerks do drives at the local facilities. To me, it's like you're discrediting what town clerks are all about. And it's like an insult to the office of an election official. I just find this like a $5,000 fine or a $25,000 fine to a clerk. And I've never ever, in the time that I've been a clerk in Vermont, had I ever heard of the town clerk disenfranchising to be voter. And anytime you have a question, we always take the side of the caution, let them vote. We don't have provisional ballots in Vermont, we let

[Rep. Chea Waters Evans (Ranking Member)]: them vote.

[Rep. Sandra "Sandy" Pinsonault (Member)]: Have We same day voter registration, if we don't know who they are, they fill out the same day voter registration. And again, here we are in an election year, and you're pushing us through on an election year for town folks to have to worry about one more thing, we have a primary in August and a general election in November. And we were always told that we wouldn't have more election bills during an election year. I just, I think it should just be held off for another year. More stuff can be taken into effect. I don't like any of this. Sorry. Can I? That's confusing.

[Sen. Kesha Ram Hinsdale (Senate Majority Leader, Chittenden Southeast)]: Thank you. Well, first of all, thank you for your service as a town clerk, and and thank you for enumerating all of the ways we try to make, the ballot available to people, because I don't think we can say it enough. You know, we try to be as as free and fair in our elections as possible, and our clerks are undertake heroic efforts to do that. And there are still people who might see a social media post or something from out of state and worry that they don't have the right to vote in the ways that you've enumerated. So it's not something I think our clerks are necessarily doing. And I would never want to discredit them because they do an incredible amount of work. This is all federal law right now. So it shouldn't be really anything new for the clerks to be doing. I think that's the conversation that was had in Senate government operations that pared down the bill. So there weren't truly any new considerations for this year and we could take up the rest in a non election year as has become practiced. But this is truly all federal law and frankly, I think good for every Vermonter to be reminded of before going into these elections, particularly in a time when a lot of doubt has been cast on the value or sanctity of the vote.

[Rep. Matthew Birong (Chair)]: Any other questions for the Senator? Thank you kindly.

[Sen. Kesha Ram Hinsdale (Senate Majority Leader, Chittenden Southeast)]: Thank you for having me. Go back to Fair Housing Day.

[Tim Devlin (Legislative Counsel)]: Yes. Totally. Please. Housing, housing. And

[Rep. Matthew Birong (Chair)]: we'll do a jaunt through this with counsel. Good morning, sir. How are you? Good. Well, thank you. Thank you very much

[Tim Devlin (Legislative Counsel)]: for having me, committee members. For the record, my name is Tim Devlin, legislative counsel, who have a few different materials available to you on the committee web page. You have s two nine eight, the short handle being Vermont Voting Rights Act that has passed by the senate. You have, let's see, a brief overview of it, although the bill is only eight pages. You have an overview nonetheless. And and you also have kind of a side by side comparing the election interference provisions from this bill to, h five forty one, which there was a flyby in this committee, that was an actual link to the interference with voters and election officials. And I can just say briefly that that was really just one section. There are four different or particularized voter interference or election interference provisions in this bill that we can go through. So, chair Birong, would you like me to work from the overview or from the language of the bill itself?

[Rep. Matthew Birong (Chair)]: I think the overviews Sure. Suffices right now. I wanna be conscious of the witnesses as well. We are gonna do a lot of time on this. So

[Tim Devlin (Legislative Counsel)]: Not a problem. So, this can basically be broken down into three different parts of substance. So we have the first, which is a blanket prohibition on efforts, potential efforts to prohibit, vote or sorry, efforts that would entail vote denial or vote dilution. Then we have a series of criminal provisions having to do with sanctions for intimidation of voters and election interference, as I just said. And then we have a third part really having to do with making it explicit in campaign finance law that campaign expenditures can include the costs for providing security for candidates. So starting at the top of those kind of general prohibitions on vote denial and delusion. The section one of the bill is the short title of the bill, which will be the Supermont Voter Rights Act of 2026. Section two will create a new chapter in title 17. This is where we house our election specific statutes, and we'll, again, codify new prohibitions on votes nile and vote dilution to empower the attorney general's office. We'll see those violations through civil actions. So we have four different new statutory sections. First will be twenty eight zero one, which will define two terms, the municipality and protected class. And we'll have a new section twenty eight zero two, and this will prohibit vote denial and vote dilution stating, quote, no voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by the state or any municipality in manner that results in a denial or abridgment of the right of any citizen of The United States to vote based on race or color or membership in a language minority group. Violation is established if, quote, on the basis of totality of circumstances, it is shown that the political processes leading to a nomination or election in the state or municipality are not equally open to participation by members of a particular class in that its members have less opportunity than other members to elect or participate in the political processes or to elect representatives of their choice. The next statutory section will be twenty eight zero three, and let's see this. Sure. Sorry. There's a typo in the overview there. That the provisions of this new chapter shall not let's see. Be construed to deny, impair, or otherwise adversely affect the right to vote of any registered voter. And then, the last new statutory section here to be twenty eight zero four, showing power of the AG's office of enforcing any violations through civil actions. And let's see. Whenever the attorney general has reasonable cause to believe the violation has occurred and the the rights of any voter or group of voters has been affected by such violations, the AG may institute civil action for appropriate relief, and the court may provide a remedy through one, injunctive, relief or injunction stopping the conduct, Two, civil penalty against the violator of not more than $5,000 for a first violation and then not more than $25,000 for any subsequent violations. And three, an order requiring reimbursement in state, court's expenses and investigation, and prosecuting action. Essentially, the state gets its attorney's views. Representative Hango, as I have.

[Rep. Lisa Hango (Vice Chair)]: Thank you. So, the AG's office will enforce and impose violations on, but who does the actual investigation and where do the complaints go to first?

[Tim Devlin (Legislative Counsel)]: Sure. The AG's office is doing the investigation, and presumably they would be able to receive rights of alleged by elections. The next section of the bill, section three, will amend, let's see, 17 BSA chapter 35, and here we have this is the chapter on the offenses against the purity of election. So we turn now to those election interference provisions as the criminal sanctions. And just as a reminder, this chapter already exists and this is where we find provisions having to do with voter fraud, misconduct by election officials, those kind of things. But we don't really have as in our conversation, with age five forty one, real explicit voter intimidation or election interference provisions on the books right now. We do have, criminal threatening with kind of enhancement in election context, but that's arguably the closest thing. And then some some other language, in there which arguably could be applied, but it's not particularly clear in that chapter 35. So, the first of the four new offenses will be a new 17 VSA nineteen thirty four titled interference with voting, and this states that an election officer or a person acting under the color of law should not potentially, one, refuse to permit or fail to permit qualified voter to vote, or two, refuse or fail to tabulate, count, or report the vote of qualified voter. Violators face a civil penalty of not more than $1,000 for each affected voter, and election officer shall also not, let's see, change a ballot of a voter to prevent the voter from voting as the voter desires, and violators of that will face imprisonment of not more than six months or a fine not more than $1,000 in both of each affected voter. And I should just note right now, in the side by side that's posted online, I've broken down and color coded each of the elements in there or just kind of ease the digestion so that everybody can kind of get a quick understanding of the person committing the conduct, the person affected by the conduct, the conduct itself, the mental state, the penalties, and where there's a private of action, sir, that it entails.

[Rep. Lisa Hango (Vice Chair)]: So Sorry, Tim. Could repeat the last sentence you just said?

[Tim Devlin (Legislative Counsel)]: Yes. There will be a private right of action to these cases. And I'll get to that. We haven't

[Rep. Lisa Hango (Vice Chair)]: got to that just yet. Thanks.

[Tim Devlin (Legislative Counsel)]: Let's see. The second offense is will be a new section twenty twenty two titled intimidation of election officers and states that a person shall not intentionally by bribery, intimidation, threats, coercion, or other means in violation of the election laws hinder or prevent or attempt to hinder or prevent an election officer at any polling place from holding an election, and violators will face imprisonment of not more than two years or find out more than $2,000 for vote. The third offense would be twenty twenty three entitled intimidation of voters, civil cause of action. This states that a person shall not intentionally intimidate, threaten, or coerce or intentionally attempt to intimidate, threaten, or coerce, one, any other person in giving the person's vote or ballot, or two, a voter to deter or prevent the voter from voting. And this applies to all elections and caucuses. Violators face imprisonment of not more than two years or a fine of not more than $2,000 or both. In addition to the criminal penalties, there's also this will create a private cause of action wherein an affected voter may sue for injunctive relief and attorney's fees. I'll just point out that that's a limited private action. They can't go after, any other sort of remedies, whether those should be certainly not criminal, not civil, or punitive damages or anything like that. That's basically just a cessation of conduct during Doctor. Prolabe. And then we have a final, infraction here. It's going to be a new section twenty twenty four titled communication of information to eligible voters. And this states that a person should not intentionally communicate to a registered voter false information knowing the information to be false for the purpose of competing the voter and exercising the voter's right to vote. Provisions of this section shall apply to information only about the date, time, or place of election, how to register to vote, or voters registration status. So that very much narrows the category of information we're speaking to. Violators face imprisonment of not more than six months or find out more than $1,000 or both. And again, let's say in addition to the criminal penalties, there's also a private cause of action here where an infected voter may sue for injunctive relief for internal issues. And then we move on to the last part of the bill relate, substance and that has to do with a small adjustment to the campaign finance laws specifically to the definitions found in 17 ESH twenty nine zero one, seventeen seven, and let's see, so the definition of what is expenditure will now include those costs incurred for the provision of security candidates. And then the effective date for the bill, let's see, the Act will take effect on passage. Questions from counsel?

[Rep. Matthew Birong (Chair)]: Time for more questions. Can work on this for sure. Okay, thank you, sir. You're welcome.

[Lauren Hibbert (Deputy Secretary of State)]: Hi, good morning. For the record, Lauren Hooper, Deputy Secretary. Thank you so much for having me this morning. I really appreciate it. I will file written testimony. I was working on it last night, and then new development in the elections world happened, I got derailed. So I'm sure you all can understand, and I will get this filed, too. Thank you for taking up this bill, I guess two ninety eight, which is currently titled the Voter Rights Act. We strongly support this bill. And I just want to address Representative Pinsonault's concerns right at the outset. The reason why the Secretary of State supports this bill is this is really boots and suspenders taking what is current federal law and incorporating it into Vermont law. And as senator Ram Hinsdale said, the federal law, which is the backdrop to how we've been conducting elections in Vermont for sixty years, is under significant and serious threat before the Supreme Court. It is anticipated that particularly the vote dilution section of the VRA is going to be removed. We believe that this is foundational to democracy, that this is foundational to how we run elections. And we believe that it's important to put it into Vermont law now. The other sections of the law we also firmly support, some of which are in the VRA, some of which are not. And the reason really is the tenor and climate around elections right now. I don't think that I need to explain to this committee what that is like. You experience it yourself. You experience it in your communities. But it's not what it used to be. Elections used to be boring. And one of my favorite stickers on our elections team's laptops is make elections boring again. Wouldn't that be lovely? And so we would love a boring election. We are not getting a boring election. And it looks like the Supreme Court is going to change the rules mid election year, which is why we, and certainly the administration, is attempting to change the election rules mid year. The executive order that came out last night is literally changing the way we would do mail in ballots. And those are mail in ballots that Sean and his team are preparing right now. It may seem like it's really far away, November, but you remember the testimony around the deadlines from last year, the tight timeline. We are already preparing our ballot styles and our envelope styles. We're getting those pre approved by the post office and by our printer. That is work that we've been engaged in since mid January. So the work does not just start when we get the results of the primary or when we get the petitions. It starts far beyond that. And we're doing that in conjunction with our clerks. I want to really echo that the town clerks are our partners in elections and really strong partners. And there is nothing in this bill that will change how they do their job or how we will do our job. And that was the other really important thing for the Secretary of State to support this bill. And by supporting this bill, we are not changing our position that there should not be an election bill in an election year. We agree that should not happen. The thing that is helpful for our support of this bill is this doesn't change the process or procedures of any election that's going to occur in this year. It provides more protection to voters, to election officials. It takes the federal law that's under challenge and puts it into Vermont law. But there is not a single procedure or requirement for our office or town clerks that is being changed in this bill. And if there were, we would not support it. And there were some really great proposals on the Senate side, proposals that, quite frankly, are very exciting to me personally, to our office, that I think should be very exciting for Vermonters, that would have changed processes and or been significant policy shifts. And we said, no, thank you, as politely as we can. And we have a commitment to working on those issues throughout this year. And we do anticipate that we'll have a lot of those issues in another bill next year. The reason being that we need to do a lot of stakeholder engagement. We need to make sure that all of those ideas are right sized for Vermont, that we are creating law that is functional and operational and adds value. And I know that we can do that. I'm confident we can. And I think there's a lot of things that Vermont can be doing better. There was the question about, has

[Rep. Mary-Katherine Stone (Member)]: there been

[Lauren Hibbert (Deputy Secretary of State)]: a voter intimidation in Vermont? Yes, there has been. Is there things that we can do better as a state? Yes, particularly around disability access. And that includes a lot of our older population, which is why we have a higher rate of disability in our older population. And so there are a lot of things that we can do. We also have, obviously, disabled Vermonters who are not in the older population we need to do better with. We have work to do with incarcerated individuals, with people whose first language is not English, and with people who are unhoused. Those are things that we are all actively working on at the Secretary of State right now through some task forces, trying to gather what we can do better, how we can improve. And particularly for state and federal elections, which is what the Secretary of State has influence and control over, we do think it will have proposals for next session. So on that, I think a key ask of the Secretary of State's office is that the title of this bill be changed. Because as it was introduced and as it was modified in the Senate, it was more a Voter Rights Act. And I think we will have a true Voter Rights Act next year. And I don't want this bill to be called the Voter Rights Act, and then we have another Voter Rights Act next year, which is really the intention and hope of the Secretary of State's office. I would hope that maybe this committee would change this to the Voter Protection Act. It seems more in line with what this bill is actually doing at this moment, and I think is appropriate and would preserve that title, which I think is a very important title for next year's bill, where we are doing more comprehensive action. So with that, I'll go into each section unless there's specific questions from the committee at this moment.

[Rep. Matthew Birong (Chair)]: Anything right now?

[Rep. VL Coffin IV (Member)]: Waters Evans?

[Tim Devlin (Legislative Counsel)]: I have

[Rep. Chea Waters Evans (Ranking Member)]: a few, but if they don't apply at the moment, you can always not answer them. So can you explain to us a little bit what the intersection is between federal law and state law? So if there are some Supreme Court decisions or changes to federal law, and we decide we're gonna put this voter protection laws into place, How does that work with like, you know, state law versus the federal law and what supersedes the other?

[Lauren Hibbert (Deputy Secretary of State)]: I'm looking at Ledge Counsel because I am a lawyer, but he is obviously more actively practicing law than I am. So correct me if I'm wrong, but the federal government really sets the floor. And the floor with regard to the Voter Rights Act has had or since the, Voter Rights Act was passed, has had certain provisions, particularly around dilution of votes. If the Supreme Court takes away that floor, that no longer exists. And Vermont can add on top of the floor, is the most simple way to explain it. So if we put voter dilution into our law, there's nothing with the Supreme Court that would, I mean, it's possible we get challenged, but it would be us taking what has been the federal floor and making it the federal floor.

[Rep. Chea Waters Evans (Ranking Member)]: And then, would anything in here change the way that town clerks do their jobs right now? Nothing. Nothing. Okay. And then my last one for now what is happens if the federal if like you said last night, there was an executive order. What happens if something like that happens in August?

[Lauren Hibbert (Deputy Secretary of State)]: I think the same thing that happened last night. There was a scurry of calls and actions and discussions about what are the next steps. And without going into a ton of detail, the states are all talking to each other frequently across party lines, which is phenomenal. Our attorney generals are all talking to each other, probably more on party lines. And these will be challenged. And that will occur at any time that this occurs. I mean, anything elections related, there's a community that is poised and ready to act. There is not a question in my mind that this executive order will be challenged just like the last executive order was challenged. The last executive order, there was a stay on certain provisions of it. I anticipate that there will be a stay on this executive order because it has such an immediate harm and irreparable harm to states right now. And also, yeah, I expect that there will be immediate court action. I don't know, obviously, what the courts will do, but we'll respond to that when we get that. And then I do believe that there will be further executive orders around elections that come. And we'll have to respond to those quickly and with clarity as much as we can while navigating the court system. We stand pretty strong, and the Constitution has our back on this, that states control elections. And we have since we were a state, and we've done a very good job of it. Vermont should be really proud of our elections. We've done a lot of things to increase access and integrity to our elections. We've made very conscious determinations year after year to do that. As Representative Pinsonault said, we've done that in conjunction with our town clerks, partnership with them, in partnership with the legislature. And we should be very proud of where we are. Doesn't mean we don't have more work to do, but we should be proud.

[Tim Devlin (Legislative Counsel)]: Seeing your hands,

[Lauren Hibbert (Deputy Secretary of State)]: Provisions back to specific section two is vote dilution. This is the federal provision that we support being added, federal floor that's leaving. We think this is a really important statement for Vermont to make in light of the CALA case. But again, this is not going to change anything for this year and likely would not change anything in Vermont for quite a while. We just think this is a very important statement for us to make. We understand that VPERG, along with others, has some potential amendments to this particular section related to remedies and private cause of action. We don't have any concerns about those amendments. We thank the people for sending them to us last night. But we do think that this committee should hear about them and should probably consult with the attorney general's office on them, just flagging that they are a really important partner on this bill. And section three is offenses against the purity of elections. I feel fortunate that I've talked to this committee a lot about the purity of elections with specific reference to the AI in elections bill. We have seen voters intimidated and election officers intimidated. This section addresses both of those concerns. It's happened in a variety of ways, through mis and disinformation specifically targeted to a specific individual, to a mass of individuals. This just gives us another tool in the toolbox, of which we're trying to create as many tools as we can, that will help us with this effort. And then Section four is really responsive to the climate that we're in. It allows candidates to use campaign funds for security measures. Arguably, there could have been an argument that candidates already could do this. But we think it's better to be more expressed in the law so that candidates know that this is available without having to go through legal hoops. It makes it more clear for our office. And we think at this time, it's a really important thing for candidates to be able to apply some basic security measures or larger security measures, depending on what is needed to protect their personal safety. We have seen, both in our office and with people who are on the campaign trail, threats against people who are running for office, unfortunately. And with that, we really support this bill. We look forward to doing the work that we've committed to doing with a lot of folks over the summer and fall, and coming back with a more robust Voter Rights Act. That's our intention.

[Rep. Matthew Birong (Chair)]: Ants? No. Are definitely gonna be doing more work on this, so I'm sure we will see a presence here on this and other things. I'm not Please. Yes. Please. Alright. Mister Burns, you're next on the punch list.

[Tim Devlin (Legislative Counsel)]: Yeah. Everything okay? We have two chairs at the end here.

[Paul Burns (Executive Director, VPIRG)]: If you wanna

[Rep. Matthew Birong (Chair)]: do a duet, go for it. Thank you very much.

[Paul Burns (Executive Director, VPIRG)]: Mr. Chair and members of the committee, for the record, my name is Paul Burns. I'm the Executive Director of VPIRG of the Vermont Public Interest Research Group. I'm joined today by Quinn Houston, my colleague, who is a democracy associate with VPERG. We'll just split up in brief testimony a couple of areas that we'd like to cover for you today regarding this bill. I really appreciate the opportunity to speak with you today. And I'm going to turn it over to Quinn first to provide some background.

[Quinn Houston (Democracy Associate, VPIRG)]: Yeah. So, DIPERG has worked for decades to advance a more participatory and inclusive democracy, advocate for government transparency, integrity, for fair and freer elections in Vermont. It's no exaggeration saying that we're facing some of the greatest threats to democracy in our nation's history. As was mentioned just earlier, yesterday, in fact, Donald Trump, the president issued an executive order, attempting to take control of mail in, voting processes. Elections are, of course, controlled by states. And so this action is clearly unconstitutional, but it's another example of the threat that we're facing. Vermont rightly prides itself as a national leader in making voting easy and secure, but we're not immune to the effects of anti democratic behavior. Although the state has in recent years passed a number of measures to strengthen our democracy, it's also true that the protections of the federal voting rights act that we've enjoyed for decades are hanging by thread. Fortunately, S-two 98 protects every Vermonter's fundamental right to vote by prohibiting any practice that denies or deletes voting rights based on race, color, or language minority status. It empowers the attorney general to enforce these protections in court. It shields voters and election workers from intimidation and deception and ensures that people face real consequences. These are protections that Vermonters need to guarantee that every eligible voter can take part equally in our democracy. For some context, the Shelby County versus Holder case in 2013, the US Supreme Court struck down the preclearance requirement formula of the Voting Ranks Act in 1965. That provision required jurisdictions with a history of voting discrimination to obtain federal approval before changing any of their voting laws. Since that decision, the consequences have been really severe. 29 states have passed 94 restrictive voting laws. Most of them are still in effect today, disproportionately harming communities of color, the poor, the elderly, young voters, and new citizens. And so, with the upcoming, Louisiana versus, Cali decision, from the US Supreme Court, it's threatening to further weaken section two of the Federal Voting Rights Act. Vermont can't wait for federal protections that may never be restored. Since 2002, nine states have already stepped up and created their own voting rights acts. And with this legislation, Vermont can begin to provide protections of our own. It's our hope that protections offered under S. Two ninety eight will be augmented further in another legislative session next year. With that, we have two proposed amendments to S. Two ninety eight that would aim to make the legislation as effective as possible.

[Rep. Chea Waters Evans (Ranking Member)]: I'll pass that to Paul.

[Paul Burns (Executive Director, VPIRG)]: Thanks, Quinn. And as deputy secretary Hibbert noted, there are a couple of proposals of amendment that we are offering for your consideration. They are in written testimony that we've submitted to you as well. So it's really just a couple of paragraphs, but I'll briefly describe these suggestions. The first suggestion for an amendment is really an addition that would incorporate remedies into section twenty eight zero two related to vote denial or dilution. Vote dilution remedies are essential because they transform the right to equal political participation from a theoretical promise to a practical reality. Even when all eligible voters can cast ballots, electoral structures, for instance, at large voting or gerrymandered districts, could potentially systematically wash out minority communities' votes, preventing them from electing candidates of their choice or influencing policy outcomes. Remedies such as redrawn maps, single member districts, or change voting methods and correct these structural disadvantages. Remedies also fill gaps left by a weakened federal voting rights act and deter future dilutive schemes. Ensure that minority representation translates into real accountability and a guide for the courts. Vote dilution isn't about being physically blocked from a polling place. It's about electoral math that effectively cancels out the voting power of a specific group or a protected class. Under the proposed legislation, vote dilution generally falls into two categories, one being how lines are drawn through redistricting, for example, and how elections are structured, for instance, through at large voting systems. Regarding at large systems, this is one of the most common forms of vote dilution. In an at large system, the entire municipality, for instance, votes for all open seats. That's quite common, in Vermont except for our larger, cities. So for instance, if you can imagine a municipality where 75% of the population is white and 20% belongs to a protected class, that in that situation, if there are five open seats of city council and everybody votes at large, the 75% majority can effectively win all five seats by voting as a block. Even though minority group makes up about one fourth of the town and or or municipality in that case, they have zero representation because their votes are submerged by the majority in every single race. This is voter dilution, and it is effectively it can effectively disenfranchise a sizable percentage of the population. There are other forms of discrimination as well, including this is more on the redistricting side of things. Voter cracking, which occurs where redistricting, when a concentrated community is split up into multiple districts and voter packing, which you're familiar with, I'm sure, which involves cramming as many members of a protected class as possible into a single district to minimize influence elsewhere. Now look, I I grant you, as deputy secretary Hooper said, this is not a common these are not common practices in Vermont. Our challenge is in this area. We are a extraordinarily white state, and so we are not sitting here today to tell you that this is a dramatic problem that we are seeing strong evidence of in our municipalities or statewide. These are provisions that offer protections and remedies in this case. It would offer protections to the extent that any such thing could one day happen in the state. So it is a protection against things that are unlikely to happen, frankly, and I'm happy to say that. But protections that our voters would, I think, gain some comfort from, particularly those who are members of a protected class. So regarding the remedies, traditional remedies for voter dilution often default to drawing single member districts. However, proportional or semi proportional voting systems can often remedy dilution without the need for controversial or sometimes gerrymandered district lines, allowing minority groups to gain representation naturally through their voting strength. So there we have, for your consideration, the actual language that we are proposing there on remedies. The second provision that we are suggesting for your consideration involves a private right of action. Again, Deputy Secretary Hooper noted, and alleged counsel noted there are a couple of areas where the private right of action already exists in this bill before you, and this is quite common. This has always been part of the federal voting rights act as well. And, we support the addition of the voting right of the private right of action in section twenty eight zero two specifically so that this provision can essentially be self enforcing, self executing, and we don't have to rely on the attorney general, for all enforcement actions. Already, again, the bill contains these provisions for section twenty twenty three, intimidation of voters, and section twenty twenty four, communication of false information to voters. We believe that citizens should be empowered to the same, way should be empowered in the same way in cases of vote denial or dilution. Again, we have that language there, and I would just of the specific amendment that we are suggesting, it is quite similar to the other areas where the private right of action is included in this bill. This would empower citizens to act as private attorneys general in these specific cases. If a community feels that their voting rights are being violated, they don't have to wait for an official from the attorney general attorney general's office to notice and approve their cause. This language we have proposed specifically grants the right to any voter who is a, quote, member of a protected class and who resides in the municipality. This ensures that people with the most at stake, the residents whose votes are actually being diluted, have the legal standing to seek a remedy. It's just very important in this case. The provision allowing for a reasonable attorney's fee, again, alleged counsel addressed this before. We think that that is, again, consistent with the other provisions included here as well. And so there's nothing unusual about that, it's just kind of mirroring the other examples where the right is included. Mere existence of a private right of action can change how municipalities behave. For instance, if a municipality knows that a group of local residents can legally challenge an unfair system, and that municipality might have to pay for the residents' legal fees if they lose, that municipality is much more likely to fix the system voluntarily. Finally, the private right of action isolates the enforcement of the law from any kind of political cycle, ensuring that the protection of the protected class is a permanent legal reality, not a temporary, political preference. So, again, we're offering protections here. It's almost a consistency of protections that are currently offered in many respects at the federal level. Is to be carried through something that voters in Vermont, can count on. So we think it's important in that way. There are obviously other provisions of the bill that offer some new protections against voter intimidation or misleading information to voters. I have to believe we all agree that that would be important and useful, for Vermont voters and for Vermont election workers, as the deputy secretary mentioned. So I don't expect those provisions to be controversial, but they are of real value, particularly at this time. We agree with the provision that would allow for more explicitly campaign finance funds to be used for certain protective measures, and again, there's a greater need for that today than perhaps ever before. And that is sad to say, but I think it is true. Regarding the name of the legislation, we agree again with deputy secretary Hibbard that an appropriate title for this bill would be the Voter Protection Act. The bill is really about preserving and enhancing important protections for voters and election workers, and I think this is a great time to do it. With that, I thank you for your consideration and for the opportunity to testify before you today.

[Rep. Matthew Birong (Chair)]: So the proposals that you just went through, did you have a conversation with Seneca ops with this, or is this a new proposal being put for for the bill now?

[Paul Burns (Executive Director, VPIRG)]: The senate of ops had a much more expansive version of the legislation at different times. I think that, aspects, at least, of these proposals were included at one time. They were not included in the final bill. I don't believe, mister Johnson, that they were discussed and excluded for particular reasons. There's quite a it was it was cut down by more than half. I think these provisions may have been in that. So I cannot say. The short answer is these were not discussed and rejected, in in my memory by the senate committee. So in that respect, they are new additions to this proposal, but not new concepts. They they have appeared before.

[Rep. Matthew Birong (Chair)]: Okay. Any questions? Well, let me see. Let's go deeper.

[Tim Devlin (Legislative Counsel)]: All right. So thanks very much.

[Rep. Matthew Birong (Chair)]: This is the first. Toes in the water on this one for us. Any committee discussion anyone wants to engage with right now before what we got reasonable body mass and we just ran through the words. I heard some thoughts.

[Rep. Chea Waters Evans (Ranking Member)]: I'm just glad we're addressing this. It's, I'm looking forward to it.

[Rep. Matthew Birong (Chair)]: Yeah, no, no, I'm not saying to intent to put some notable tables on it. Was fun.

[Rep. Chea Waters Evans (Ranking Member)]: Yeah, good.

[Rep. Matthew Birong (Chair)]: Seeing no other hands or comment, yes, Rep Stone digitally hand up.

[Rep. Mary-Katherine Stone (Member)]: Yeah, it's kind of been mentioned, but I just wanted to bring up that some folks in the disability space have talked about how protected class is not really like Vermont statutes don't use a language protected class, although, yeah, it's referred to in the bill. I know that VPRK just said that was one of the areas that needs to be worked on, but I just wanted to bring that up that that's something that the disability rights community has said they'd like to see tweaked in the bill, if we kind of define that better.

[Rep. Matthew Birong (Chair)]: Okay. Thank you for that. Rebecca?

[Unidentified 'Rebecca' (likely committee member)]: Thanks, this is probably a question for Ledge Council, but this bill specifically calls out race, color, and language, so why not other protected classes?

[Tim Devlin (Legislative Counsel)]: The definition can be modified however the committee would like.

[Unidentified 'Rebecca' (likely committee member)]: So, thank you for that. I guess I'm not certain how this is protecting folks with disabilities. It is not. It is not, that's what I heard. So, I guess that's something Rapstone just brought up, something to think about. Because it seems very specific, just to race, color, and language. And not something that the disability community would necessarily benefit from.

[Rep. Mary-Katherine Stone (Member)]: Right, yeah, that's what they're saying. They said it was a glaring omission, so they wanted us Thank to look into

[Unidentified 'Rebecca' (likely committee member)]: you, I misunderstood your statement, I was just trying to clarify that for myself. One other question that I have, and I'm not sure who it's for, possibly ledge counsel. So it feels to me that with some of the language about the private cause of action, that town clerks and assistants and other elections workers would be specifically opened up to being targeted if they are not perceived to be doing their job in an equitable manner. And this concerns me that a portion of our municipal employee population and volunteer population would suddenly be opened up to a new private cause of action. And if that's correct, please correct me.

[Tim Devlin (Legislative Counsel)]: Happy to speak to that. Would you like to see that?

[Rep. Matthew Birong (Chair)]: Please, sir.

[Tim Devlin (Legislative Counsel)]: Yes. So of again, just to reintroduce myself, Tim Dublin, legislative council. Of the four proposed, criminal sanctions for election interference and voter intimidation, Two of those have private right of action. Two, in particular are twenty twenty three, which has to do with intimidation of voters, and the second one is twenty twenty four, communication of false information to eligible voters. So, the conduct we're talking about is two, subcategories of election interference, essentially. One is, is the individual intimidating a voter. The person, it's any person who is, intimidating a voter. It doesn't necessarily have to be an election officials. It could be, literally anybody. Could be another voter. It could be a third party, or I guess it certainly could include elections officials as well. During 2024, this is has to do with communication of false information, And, again, that information has to be particular to the date, time, or place of the election, unregistered vote, the voter's registration status. Again, this would be conduct committed by any person, so could include an elections official, could include another voter, include just anybody out there in the public. Other thing I want to note is that the private right of action here is limited to injunctive relief. So, basically going to a court, getting a temporary restraining order, against the conduct here, which would either be court saying you are no longer allowed to intimidate the voter or you are no longer allowed to essentially disseminate, disseminate this information about the election, administration administration of the election. And then there's the attorney's fees, as part of the private right of action there too. So, I would say the private right of action is more limited than we may typically think of what a private right of action is, it's only injunctive relief and it's only in the context of those two different types of misconduct. One, again, spreading false information about elections, and the other one intimidating in particular.

[Unidentified 'Rebecca' (likely committee member)]: So, I think my question was, is that, well, one of my questions now is this is a new or existing private right of action, and I believe I heard that this already exists in federal law.

[Tim Devlin (Legislative Counsel)]: This is new. I'm trying to think exactly if it exists in federal law. I'd have to take a look and see exactly it best aligns. These are based off of Virginia's state voting rights act, and which in turn are based somewhat on the federal voting rights act. Sure. We'll probably take a closer look to see exactly how well they perfectly align here, say accurately whether there is a federal vote. I'm just not too sure about the primary rate of action see, conjunctively, how to look that up.

[Unidentified 'Rebecca' (likely committee member)]: Thank you. Well, it is telling that it's a new private right of action for Vermont. It would be, yes. Yeah, I appreciate that clarification. I feel that we are reacting to something that has not concretely happened right now. And we're making a statement statute rather than just a statement. And that's a serious undertaking, make a statement in statute. So I think we're going to need to take a lot more testimony on it. Thanks. Heard.

[Rep. VL Coffin IV (Member)]: Grab Coffin. This might be off the wall here, but but I what is a clear definition of intimidation? Okay, let me put this in perspective for you. I have had people come up to me to have a conversation with me, and then tell me that I'm intimidating them, because I tend to speak in a tone of voice that ensures I will not be misquoted. Okay? I am and then tell me that I am because I'm six foot tall, two hundred and sixty pounds, I'm intimidating them. Exactly what is the definition of intimidation or is it

[Tim Devlin (Legislative Counsel)]: a perception? Fantastic question, and part and parcel of that implied is the idea of where do first protection first amendment protections ors come in, right? To what extent do we preserve our right to speak freely, especially in elections context, which is fundamental to governance in a democracy, without it being interfered with by the government, criminalized. The courts will basically apply what's called true threats doctrine. So they've taken a look at this, in various contexts to basically determine where is the line between, you know, something that is permissibly said and something that kind of transgresses that line and is truly threatening to somebody else. The language I've pulled here, I think I find most useful, Supreme Court of the United States looked at this case called Counterman v Colorado from 2023, and I have a definition right here. I'd be happy to read into this So true threats of violence, let's see, is another historically unprotected category of communications. I should just note that not all speech is protected. We think of defamation, incitement, yelling, fire in a theater, obscenity, fraud, things of that nature. True threats is another unprotected category. True threats are, quote, serious expressions conveying that a speaker means to commit an act of unlawful violence. The existence of a threat depends not on the mental state of the author, on what the statement conveys to the person on the other end. When the statement is understood as a true threat, all harms that have long made threats, unprotected naturally follow, and then if the court gets into exactly what is the mental state necessary of the person communicating there, and they found that laws have to, at the very least, have this will work, kind of, term of art legally, it's the mens rea, the mental state. So the by the, person proven, for the conviction to or from the law. So we have the court said that there needs to be a reckless mind state, the very least. And so that means conscious disregard to a substantial and unjustifiable risk that the conduct will cause harm to another. The threats context, it means that a speaker is aware that others could have regard his statement as threatening violence and delivers them anyway. So it's gonna be much more than just having to with somebody's physical stature or tone. It will or much more. And then I should note that this mens rea of recklessness is actually well, the lower ones, we go purpose or intent, knowledge, recklessness, and then negligence. These actually all require a much higher, than strength, highest in fact, which is intentional intentionality or purposeful risk. So it's the highest bar that can be set for the mental state of person communicating this information to the person, that they wanted to make sure that person felt intimidated and that there'd be no ambiguity as to whether they'd be threatened or not. So the hypothetical you described, not so hypothetical Actual hypothetical. I should say. That would not be a trickster. It would take something classic would be renditioning a weapon at somebody, learning I'm going to kill you with a singularity cut, conditional like, If you say that again, I'm not killing it. I won't even cut it. It has to be particularized and understood that it will have the receipt of that. Does that help at all?

[Rep. VL Coffin IV (Member)]: Does, it clears it up a little bit for me because there's too many people in this world that forget that my rights or anyone else's rights don't end where their feelings start. Sure. And there's too many people that will say I'm offended and then take that as, oh, well, they're intimidating me because I'm offended. When offended only makes you offended, it doesn't make you right. So that's why I'm worried about the language.

[Tim Devlin (Legislative Counsel)]: Anything else for counsel? Alright, so that was a good jump through this as

[Rep. Matthew Birong (Chair)]: a primer for continued work. Any other table discussion on this? Before we conclude? This is the only thing that we had on our lineup today. So, I will take us off. We have a floor at one. Members can just use this as legislative study hall constituent services bill tracking and such. So, that, Nick,