Vermont Legislature SmartTranscripts:

[Rep. Matthew Birong (Chair)]: We're live. Alright. Good morning, everyone. House government operations and military affairs. It is Wednesday, April 8, 09:30 ish, and we are picking work up today on s two nine eight, an act relating to creating the Vermont Voting Rights Act. We've got some witnesses joining us live and in person as well as via Zoom. So I am just gonna go in the order listed, and we're gonna open with representative Lamoille. How are you, representative?

[Rep. Kate Nugent (Member)]: Hi. Hey, buddy.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: For the record, Patty McCoy, Representative Patty McCoy representing Rutland, which is Pony Igra, and I share Wells with representative Pritchard. And I was asked to testify today on s February. Spoke a little bit with, senator Collinmore on the bill coming over here. Just had a few concerns, I guess, on the bill, beginning with the last infection on the campaign activity using campaign funds to provide security for the candidate. Not quite sure how much that would encompass. Can I go buy a gun? Can I buy a knife? Can I do that's like using other people's money? It's people are, you know, donating to your campaign. Pretty sure they think that you're going to be buying lawn signs and advertising in the paper and mailing. So, I have a difficult time with that one. And the other one is the intimidation of voters. As a former town clerk, that's why I assume I'm here sitting in this chair. If that's a subjective thing, I guess for a lot of people might consider me being into, you know, intimidating to you if I lean forward and I use a louder voice and and the other issue you have in this section is it's also going to create a private cause of action, which I am totally against that. You would have everyone suing every town clerk in the state because you looked at them the wrong way, or you didn't treat them the way they thought you should be treated. And once again, I'm female, so I don't have a loud voice, but if there is a male Tom Clerk who may be a bit more like representative Morgan's voice projects, and people might consider him being, you know, intimidating by He's standing on one side of the counter, you're on the other and like, woah. So that, I have an issue with that. My understanding from Senator Collimore is this is also this is already federal law, so I'm not quite sure why we would have to codify a federal law and state law because I think we have to follow federal law. If it's a federal law, we're following it. So once again, we're adding more to our green books when it's not necessary. Pretty much, that's what I have.

[Rep. Matthew Birong (Chair)]: Representative Hango?

[Rep. Lisa Hango (Vice Chair)]: Thank you. We also heard, in previous testimony about intimidation of voters with the loud voice and that type of subjective subjective conversation. But thank you for bringing up the first point, the using the campaign funds for security and what would that encompass. Because I wasn't really thinking about something like buying or purchasing a firearm. I was thinking more of personal protection, hiring somebody to come with you if you felt intimidated. So thank you for that.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Yeah, I think I want

[Rep. Matthew Birong (Chair)]: to echo on that. I was thinking security cameras for a home, things of that nature, but I had not actually thought about, like, a personal firearm or something of that nature.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: For your own personal security.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Totally valid. I know

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: how to shoot a gun, but there are many women who do and own. We

[Rep. Matthew Birong (Chair)]: had had some conversations about the little bit of overlap, potential overlap with h five forty one, the bill that we passed out of the house that's over in the senate right now, which is the EE Act relating to interference with voters and election officials who passed earlier this session. Do you think that that language or some of that language is leaner, more concise than this? We're going to try and address that last year? No, we I think it was a couple of no, it was like a month or two.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: I you know, as a former town clerk, I think you'll find that every town clerk tries to bend over backwards for voters, especially during election. Everybody's coming in your office regardless of whether they're getting the mailed ballot or not. They're still coming in your office either to drop it off or they have questions about the ballot. So I think for the most part, you're gonna find town courts are extremely helpful in that. They just have issues with intimidation factor of the clerk because I don't know any clerk who intimidates anybody when they come into their office. They're all they're there to help. And it's they're there to do their job. They're not you know, they're they'll try excuse me. They will call the secretary of state to try to get the answer right when the people are there. If the secretary of state, you know, the answering machine, you'll get the person's phone number so that you can call back when you do even serve. So I I just think, I don't particularly care for that language at all. I just think it's the connotation is is totally wrong.

[Rep. Matthew Birong (Chair)]: Hango the Nugent. For Nugent? No. It's been a podcast.

[Rep. Kate Nugent (Member)]: Paul. Nugent. I think this question is also probably for legislative council, but I just wondered if you thought my understanding of some of this bill is that right now, we protect federal elections in Vermont in this way, but we don't protect elections that are just state in the same way. So I guess I'm wondering, can we enforce that federal law now in states if those things happen in state only election? Do you have thoughts about that?

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: Don't think that town clerk's treat a federal election any different than they treat local elections, an election as an election. And personally for me, I really didn't care how you were voting or how you voted at the end of the day. I just wanted to know if there were 1,300 ballots cast, and 1,300 ballots had to be counted and the numbers match. I really didn't care any other way because after forty five days of living in election, that's all you care about is the integrity of the election itself. I'm not quite sure if has. Is there a lawsuit for anybody being intimidated by an election official? Has there been a lawsuit at a federal level? I don't know the answer to that.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Anything else for Rutland?

[Rep. Lisa Hango (Vice Chair)]: Actually, not a question. I think we will ask that question of Yeah. Ledge Council. But I'm looking at five forty one, and the text of it is really very clear. So I feel like if five forty one were to pass, a town clerk would be very clear on whether there was interference with voters and election or election officials. And if you recall Rev. McCoy, it says that no person shall intentionally or recklessly intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce. And it goes down through obstructing the right of the other person to vote, or to vote as the other person may choose, and a number of different scenarios. And there's a monetary penalty for violating that. So I guess my question to you is, if this were to pass, would you feel that that takes care of this situation of intimidating voters? That one and that's like what officials? Five forty one. Yeah.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: Take a look at the language again. Thank you.

[Rep. Matthew Birong (Chair)]: Anything else, Rev. McCoy? Seeing no hands. Thank you so much for this.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: Thank you. Thanks for your time. Okay, Have a great

[Rep. Matthew Birong (Chair)]: and we are going to shift next to Carol. Hi, Carol. See you.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Good morning. Thank you for having me. For the record, Carol Dawes. I'm the Berry City Treasurer, former Clerk and Treasurer. I'm the Chair of the Legislative Committee for the Municipal Clerk and Treasurer's Association. And thank you for inviting us in to speak on February. I did submit my testimony, and you probably have it in your files, so I don't want to read it verbatim. Essentially, just want to remind you, and as Rep McCoy said, who has years of experience with elections. Vermont clerks are the chief election officials for local, state, and national elections. We register voters, maintain voter checklists. We set up elections. We arrange for the printing of ballots and testing tabulators. We hold early and absentee voting in our offices, conduct elections on election days. And I think that the chief thing is that clerks uphold the fairness and integrity of elections for the benefit of all registered voters. And to that end, in theory, we support the bill. However, clerks are nothing if not detail oriented. And to that end, when we read the draft bill, we're struck by the language in section 2,802 that reads in part, and this I will read, no voting qualification standard practice or procedure shall be imposed by any municipality in a manner that results in a denial of the right of any citizen to vote based on membership in a language minority group. And where that concerns us is in application, how such language would be brought to light, how we would actually do the work in the field. It leaves us with a bunch of questions. Will voter applications, warnings, materials, absentee ballot envelopes, and ballots need to be available in different languages? Will interpreting services be needed in clerk's offices and at the polls? How will the covered languages be determined and by whom? Will there be funding available? Will there be training available? All of these things are possible and there are communities that are doing different levels of this right now. Williston is a perfect example of a community that is working to provide election materials and ballots in different languages to serve their community. But it's for implementing, it is there are a lot of steps that would need to be part of the process. The original version of the bill included a lot of language that talked about the services that the Secretary of State's office would provide to clerks to implement these particular this particular section of the bill. And by stripping that out of the bill, we're concerned that we're not thinking about what the implementation steps are that are needed and how to move forward with them. It's one thing to just put it out there in the bill, but without knowing how we're going to move forward, it makes it a little more challenging. Well, could be a lot more challenging. The only other thing I wanted to add as a sort of a housekeeping thing, if you look at page four, line seven, there is a reference to as far as the violations, there is a reference to a person who violates subdivision A3 or four. I could not find four anywhere in the bill. And so I'm thinking that perhaps in the process of the various and sundry revisions, may be something that got missed. And either there should be a four that's missing or the four should be gone. Or I just missed it altogether. So I did want to just bring that to your attention.

[Rep. Lisa Hango (Vice Chair)]: Thank you for that. I think there was another provision which was removed in the Senate. So, that probably is the four that that's referring to. We'll flag that for Ledge Council.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: So, I'm happy to answer any questions.

[Rep. Matthew Birong (Chair)]: Reporter Evans?

[Rep. Chea Waters Evans (Ranking Member)]: No, I'm gonna forget it.

[Rep. Matthew Birong (Chair)]: Rep Hango.

[Rep. Lisa Hango (Vice Chair)]: Thanks. So I'll ask you the same question we asked representative Floyd, if you're familiar with H five forty one that's moving in the Senate right now, which deals with the intimidation of voters and election officials?

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: I haven't read it in quite a while, and I will I wrote that down when you first mentioned it. I will go back and refer to it.

[Rep. Lisa Hango (Vice Chair)]: Great, thank you. If you have any additional comments in terms of the relationship of this bill to that one, it would be great if you could just write to us and let us know what your thoughts are on that.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Great, I will do so.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: Thank you. Hi, Carol.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Thank you.

[Rep. Sandra “Sandy” Pinsonault (Member)]: Have you shared this bill with the clerks and asked them, like done a survey on their feelings?

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Actually, timing was perfect. Yesterday was the spring training in West Rutland. And there were about 100 clerks in the room when I gave a legislative update and talked about what's in the bill and this concern about making sure that we knew how things would be implemented. And there was universal support for the bill overall, and then for making sure that we're not forgetting how to address the implementation steps.

[Rep. Sandra “Sandy” Pinsonault (Member)]: Were there any concerns? I'm sorry. Were there any concerns for the private right of action? Nothing was voiced.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Was voiced. Though I must admit listening to Rep. McCoy, thought her testimony resonated and I can see where that would be a concern because it is so subjective.

[Rep. Sandra “Sandy” Pinsonault (Member)]: That's my problem with the bill. Yeah. Yeah. I mean, think we all do our part to make sure we don't discriminate against anybody to vote. And to have that in there is a huge concern of mine.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Yeah, no, I agree.

[Rep. Matthew Birong (Chair)]: Anything else for Carol? Thank you so much for the time as always, Carol. It's appreciated.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Thank you. I'm going to stay on and just listen. Oh,

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: please. Yeah.

[Carol Dawes (Barre City Treasurer; Chair, VT Municipal Clerks & Treasurers Assn. Legislative Committee) – Witness]: Thank you.

[Rep. Matthew Birong (Chair)]: No, no, no. Stick around if anything else pops up that's relevant for you, you will swing back over.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: Perfect. Thank you.

[Rep. Matthew Birong (Chair)]: Hey, lastly, if you two would like to come up together, feel free. There's a chair at the end of the table you can swing over.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: Morning, everyone. I'm Leslie Wells. I'm an Assistant Attorney General. I'm here today because I'm the chair of the attorney general's office internal committee that looks at issues in elections, as you well know, because I've been here before. With me today is my colleague, Julio Thompson. He has more experience and knowledge of civil rights law and policy. So I think I would if unless you have any concerns, I would recommend that he testify first because he can speak to the substance, in the law. And then if I have anything else to add regarding how it would be to enforce this, then I can jump in then. Yeah,

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: please. Sounds

[Rep. Matthew Birong (Chair)]: great to me.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Hi. Good morning. Just, again, Julio Thompson for the record, co director of the civil rights unit. The civil rights unit and the attorney general's office doesn't enforce voting laws, but we do enforce the state, fair employment and hate crimes laws, which use, I think, some of the similar investigative tools that may be called upon to investigate a large voting rights violations. Also, just have we have decades of experience in our office, just in terms of doing investigations and establishing or working off of legislative criteria for how do we identify a violation. What defenses are available to someone who may face an accusation of making a civil rights violation. And I'm also familiar with the Federal Voting Rights Act quite a bit, even though we don't have that enforcement that obviously belongs to the Department of Justice, or they can be enforced by private rights of action and we're we're the state, so we don't do that. I want to start by just talking a little bit about Federal Voting Rights Act. I know you had a walk through the Voting Rights Act or VRA of 1965 was is often viewed as the single most important bit of civil rights legislation that we've had, in the state or federal level, bringing, registration rates, say for black minority voters in the post bellum South from roughly 1.5%, nearly 60% in some parts of different states. Largely that's been through standards that are largely mirrored in, parts of this, this bill. The the the sections I'm gonna talk about first have to do just with the general standards preventing the dilution or impairment of voting rights. And and my first comment is that the language here largely mirrors what's already in the Federal Voting Rights Act. And just a point of clarification, the vote the Federal Voting Rights Act does not apply only to federal elections. It reply it applies to all elections, to ensure because the fifteenth amendment in The US constitution guarantees everyone the franchise. And so the Federal Voting Rights Act, prohibits states, local governments, also the federal government, from discriminating on the basis of race or, as amended in 1975. The Voting Rights Act also extends to individuals with limited English proficiency. So it it applies to all elections. It applies currently in Vermont. All of those standards exist currently. I think the impetus I haven't had a chance to speak with the sponsors of the bill. But I think the impetus of this bill is that, certainly in the last twenty five years, and I think that it's been more accelerated recently, there's been erosion of the ability to enforce the federal, Voting Rights Act starting perhaps back in 2013. The US Supreme Court issued a famous decision in Shelby County, Alabama versus Holder that limited, that essentially ended voting rights ability to require certain states with a long history of discrimination. We're talking about things like poll taxes, literary tests, and the like. That they if they change their voting laws, they would have to pre clear it with the US Department of Justice or go to a court before they actually implemented it. The idea being, let's run it through a set of neutral eyes before you actually impact voting. And in the more recent years, the US Supreme Court, through a series of decisions, has increasingly made it more difficult to prove cases of voting rights violations and has even questioned to some extent whether the Voting Rights Act, which originally was passed with a five year lifespan and was subsequently extended by Congress, whether that the Voting Rights Act has outlived its usefulness at the federal level. The perspective the Supreme Court is implying there is that, generally speaking, states and localities run state and local elections. And so it was viewed at the time and still, I think, the Supreme Court as a as an extraordinary thing for the federal government to be looking at how local elections are run. And so the court has said, we need increasingly compelling grounds to be able to do that. And so a number of states, I think the number is eight. It might be as depending on, the time this month, it might be as as many as 10 states have adopted their own state voting rights act, essentially saying that collectively, well, okay, states and local governments run elections, and so we we are within our rights to regulate, make sure that voting is open to all. And so that's what I think this bill is trying to do. There are a number of states, including New York, our neighbor here, which has had a voting a state voting rights act since 2022, and has been enforcing it for the last few years. So basically, there are different sections of the voting rights act. Section two is the one that says no impairment, no dilution. And it states those terms and if it's they sound equitable and fair, you don't wanna dilute people's votes, you don't wanna impair people's votes. But the critical question for us, I think, in in our enforcement perspective, and I think also your perspective as to what you want to accomplish. The question is, what counts? What do you consider to be improper dilution, or improper impairment? And right now, the the bill as it as it passed out of the senate doesn't set forth any standards for us to use or for courts to use. When a court is looking at a statute and they don't have specific guidance in the text or findings or the legislative history about what the legislature wants to accomplish, when they are interpreting the language, what counts as impairment? The default mode that the courts will use is they will look at, well, who else has has used this language and how have they interpreted it? And so the default mode in this case may be that Vermont Superior Courts and the Vermont Supreme Court may look to Federal Voting Rights Act case law dating from 1965 until we're waiting for a decision right now from the Supreme Court any day on the latest Voting Rights Act. But my sense is from the you know, how this bill has been has been offered, this was offered in lieu of relying on the existing case law. In other words, it appears that it it expresses some level of dissatisfaction with at least some of the federal case law about how do you approve a case of impairment? How do you approve a case of dilution? And for a municipality or a jurisdiction, how would they how would they mount a defense and say, well, actually, this is the best we can do under the circumstances. And I think there are there's room for disagreement about the best way to prove it and the best you know, what defenses would be available in the permissible range of remedies. And they've been offered by the courts, but it's not on the face of the law. We, from an enforcement perspective, wouldn't know which one of those cases you thought was good and which one you which path you didn't want us to follow. And so I think that creates a challenge, not only from us from an enforcement standpoint, but the flip side of the coin is what are the expectations and how can towns or counties make plans? What rules are they running afoul of? Do they know if they do so? It could be something as simple as removing a polling place, which might have the effect of increasing the driving time, for people that might be able you know, and it might be seasonal. It might be it's a it's a town meeting day, which sometimes has inclement weather. And so there may be people from one community. It's now it's harder for them to get out to the polls. Is that unlawful impairment because it's more difficult? And how would you prove that? Would you look at, percentage of votes? Would you do polling in the community? You know, what evidence would you look at? And the bill right now doesn't offer any guidance for us to investigate or seek enforcement and doesn't give the the court, any content, to look at. So we think that, you know, our goal in enforcing the law and then, the courts in applying and upholding the laws, divine the intent of the legislature. And so for right now, we we have a bit of a blank slate from the bill. We don't know what the criteria are. In the senate, I didn't follow the bill that closely on the senate side, but I did note the other day that after version one was introduced, in the senate, gov ops committee, they, had circulated within the committee, and I think the original bill was 25 pages. And I had things like pre clearance in it, which I which is no longer in the bill, I think that's appropriate. But it went from a 25 page bill with no standards about how to investigate and adjudicate these to a 43 page bill, which had lots of detail about what kind of evidence you could look at, what kind of evidence you could not look at, and what sort of remedies you could seek. I'm not sure what happened to version 1.1, our office isn't endorsing 1.1. But just looking at the catalog, the list of standards that were articulated, at least in that draft, I noticed different from the standards that exist in the New York law. New York law, it's been in effect since 2022, for example, and it's enforced by their attorney general. Their office also allows a private right of action. This bill does not, for impairment or or dilution. But the statute specifies 11 different evidentiary factors that the attorney general's office can look at, another four or five they cannot look at, identifies four specific examples of improper, voting practices or standards that would be unlawful dilution or impairment. And it offers it identifies a total of 16 different remedies that at a minimum are sort of on the table for consideration by the attorney general's office or by a court. Those are different than, to some extent than what's in version 1.1. All of that just means to say that there are there are different and, you know, good faith differences of opinion about what the standard should be. And in light of that, and in light of what we think is the implied disfavor for just living with federal law, because it doesn't say, look, we'll just apply the federal law lawfully. That leaves us a little bit in the dark as to what the legislative body wants. And so we we try whatever we try to do in the attorney general's office, we try to do justice every day. We certainly don't wanna do harm. And if we do an investigation or proceed to litigation, there's obviously costs. And it's, it's generally not a recommended practice to leave it all up to a judge. It's a far less democratic process, and you may end up with something that doesn't quite resemble the federal law, doesn't quite resemble what other states have done, but might be a third road that no one has imagined. And so that's a bit of mischief that we try to avoid when we're looking at legislation in the drafting stage, we think there's an opportunity here to fill in those blanks, whether you can do that within the time allotted in the session, because I think there are a lot of different voices that would want to be heard. That's a call we can't make, but we do think that because there are competing views about, what would count, what could be counted, or how you would go around proving a violation, how you could defend yourself against a violation claim, that you would want to have a lot of voices in the legislature to hear that and and some time spent on that. I think it is it's otherwise, you're sort of letting it out the door. And, you know, I would imagine this is an election year that the effective date would remain beyond this election cycle. But it does sort of set up this environment for uncertainty for municipalities not knowing when they can clear things. And I think, in fact, though, they may seek advice from us beforehand even though the statute doesn't authorize us to perform that function, because it was chopped out of the bill. And so I think that, you know, it's it's certainly laudable to be able to take control of your elections and Vermont ties them, but I think a lot of the detail hasn't hasn't been provided. I wanna talk a little bit about language proficiency and where that fits in, because I think that was raised by town clerk. So I'm gonna start a little bit with the the Voting Rights Act and the Federal Voting Rights Act and how it treats the issue of providing access, you know, equitable or fair and lawful access to people who have limited English proficiency. So that that didn't exist in the 1965 law. That came by way of a 1975 amendment. It created a new section called section two zero three. I mentioned that only because other witnesses might refer to section two zero three. And, basically, the the duty to provide alternative forms of access, and that can be translated materials, that could be, you know, access to interpreters, which might be something as simple as using Google Translate. It might be an online translation service that a lot of municipalities that know their their constituents already have. The state of Vermont certainly does, and and I know other towns do too, not just Winooski. But under the federal law, those duties arise, only when, one of two conditions are present. One is that Push. Push. That for whatever the the jurisdiction is that that's gonna vote, that you have at least 5% of those households have limited English proficiency, or you have at least 10,000 people in the jurisdiction known to have limited English proficiency. How do you know that? Right? How do you know? How do you count? Well, the law bakes into it that we will use it turns out that the US Census Bureau, part of its decennial census, every ten years, they serve people, and one of the things that they measure are is language proficiency in the household. And so, every year, the Census Bureau has available on a web page. It's also linked in The US voting rights section web page with a list of for all 50 states as well as DC and other territories where there's voting, all of the counties and and, you know, municipalities that the the census, takers found to be limited and that meet that five percent ten thousand threshold. That's how it's done. And Vermont isn't on the list. So according to the US Census Bureau, we have no municipality, at least as they measured it in 2021. We're in 2026. Sometimes they do intermediate measures, before the next ten years or up. But right now under federal law, there is no such, there is no such cutoff under federal law, no duty under federal law. Now other states like New York and, I think, Connecticut are examples I'm most familiar with, because they're states, and they can regulate they do with their resources for their state and local elections. They changed that, from that 5% limited English proficiency, but 2%. And each each state also would lower the 10,000 number to 4,000. And so if you go to the New York State Attorney General's office and you look at their information materials relating to voting rights, they also use the census, data, and they have a list that's on the web page. So all of the all the jurisdictions in New York that hold elections or or that appoint or have elected offices, know whether they're on the list, and and then they know what their duties are. Currently, s two ninety eight has no threshold at all. And so that's a question that we had at the outset is that, you know, would would the duty could there be a violation where there's a municipal where there's, you know, a jurisdiction where it's one voter or two voters That wouldn't implicate federal law, that wouldn't implicate other state laws. And so that's a that's a policy, this choice I think the legislature, you know, can make as to whether there is a, you know, kind of minimum population density. And then you can also specify the forms of accommodation that you make for those communities and those voters, provided that they don't otherwise discriminate or disfavor those voters and make voting more difficult for them. It's really about means to help them, you know, to be able to cast an informed vote. And so, you know, this bill sort of serves that up. But right now, the default, as I read it, is that there is not there's not a jurisdictional minimum. And that's different than other other states, and that's certainly different than federal law. What's also different about the federal law is that under the Federal Voting Rights Act, Congress, when it was deciding, well, what languages do we need to accommodate? And the way that Congress did it, which was kind of in keeping with the overall purpose of the Voting Rights Act is, like, it was all based upon what is The United States history with voting discrimination. And so through months, weeks of testimony, you know, they identified which groups and they used had academics bring in empirical data, and they identified different language groups that historically had faced discrimination. And that's a and for 1975. And that's a relatively narrow group. So, under the federal law, it would include Spanish, a wide range of Asian languages, Native American languages, and languages associated with Alaskan Island, Northwest Pacific, people. Not Arabic, not Asian Creole, not any of the, you know, several dozen African languages and, you know, Vermont and some parts of the state. Burlington High School, I think there are thirty, thirty two languages spoken in that school, many of which are not covered by the Voting Rights Act. And so states have the ability to limit or add additional languages or just place no limits. New York and Connecticut have placed no limits. So for those states, if you meet whatever their minimum threshold is, for whatever the language group is, so it could be 4%, Creole in a community, that that votes, then then you have to have the accommodating materials and accessibility for Creole speakers, as well as as English and the other ones that are required by federal law. So that's kind of, again, open in the bill right now. There is it would be any language, for a community of any size, and, you know, the question is, is that what you want to do, or is or is there something else you want to do? I think there there are a lot of voices that would want to be heard on that, from town clerks. We've heard from a few a few localities, Vermont, as you know, there's big and small, and there's, you know, racially and language diverse, and then the ones that are not. And you probably want to hear from all of them in terms of what their experience are, you know, that's the democratic way to do it, rather than leave us to try to guess what you would wanna do when you're out of session and we just have the law in the books. So that's a perspective on the first part that has to deal with interference and dilution, is that there's a lot of things that I think, a lot of questions we would have, and I think courts would have. And typically I mean, there are some cases and other laws we worked on where the legislative judgment is. We'll let the courts figure it out. We'll let the, you know, the AG's office figure that out in litigation and like that. This is a very big area to leave that kind of authority, because there's a lot of I mean, we're the language mirrors a 1965 law. You can imagine how many court cases. There were, you know, thousands of polling and election restrictions that were thrown out, thankfully, as a result of application of the voting rights. There's a mountain of case law and different views from judges and the Supreme Court over time changing about what the standards are. And so this is that democratic moment, we think, where you can decide what you want to Vermontize. For our civil rights unit, you've done that with other laws that mirror federal laws where you didn't like the federal law and you applied your own standard. You did that in 2013 with equal pay laws. There were some court federal court cases, Vermont did not like, and so articulated in its own standard in 2018. Supreme Court issued a very ambiguous, confusing decision about how to accommodate workers who are pregnant and going through healthy pregnancies, but still are limited in their ability to do certain tasks or their stamina or need to access bathrooms and the like. And so Vermont enacted a law to amend the state law to articulate a standard that was a lot clearer and it kind of sailed through. So we're familiar with these instances where Vermont wants to take control of its own, you know, its own jurisdiction and articulated standards. This is just a topic where there are so many details that need to be filled in that right now we wouldn't If you want to proceed, we would encourage you to work on and hear from people about what their views are about those details. I wanted to One second. I have a question. Yeah. So

[Rep. Sandra “Sandy” Pinsonault (Member)]: in order to become a US citizen, you have to take the exam. Do we offer that in other languages so that they can become a citizen? I mean

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Yeah. There are Yes. There are people you don't have to be there are, under different federal laws that have to do with access to government services, there are some forms of accommodation. And it's not just limited to language, it can also be there are also diff different accommodations that are often the people who are vision impaired, for example.

[Rep. Sandra “Sandy” Pinsonault (Member)]: I understand vision impaired, but for not speaking English, how do you take the exam to read English to take the exam to become a US citizen? So I'm asking, do we offer that in other languages? And I'm just confused as to how they take the test if they can't, I don't know. It just came to my mind as I'm thinking. I'll just jump in and

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: say, I don't know the answer to that representative, but there could be people who were born here who are citizens, are growing up in households where they're not speaking English. So that would be who I would think we're often encountering in this scenario. But that's a good question and I don't know the answer to it.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Yeah, most households, do know from a different dimension of the work that I do, it's more corp related work, that most of the non English speaking houses, in The US, at least as as we know from the Census Bureau, are what are called mixed status households, and often extended family members who may be someone who is either going through the citizenship process or is not yet a citizen, but the children and grandchildren, are are US born and speak a language other than English as their predominant language. I think Winooski, if you haven't heard from them, I think a good quarter to a third of student households fall in that category. You have US born kids, in our view, and I think Supreme Court's view soon, it's an indubitably US citizens, but who are not, again, native English speakers. And so in terms of how the federal government administers that test, that's really the US Customs and Immigration Service, it's a federal agency inside of DHS, and we're a state agency, so I can't tell you the particulars of that. I did want to what else here?

[Rep. Lisa Hango (Vice Chair)]: It's just to answer, Rep. Pinsonault, that there are accommodations for interpreters for folks who do not speak English when taking the citizenship test. And there are also some medical and age related accommodations that folks do not have to speak English if they're over a certain age or have medical conditions. So there's a whole bunch of exemptions.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: One point I wanted to touch on because I think it was raised in prior testimony, and because it falls within our enforcement authority, I think Leslie is going to talk a little bit more about enforcement related provisions. And that was the phrase that's used in here about intimidation, coercion, and threatening. Picking up the thread I left earlier about when courts will interpret words in a statute, they will look at other how how courts have interpreted other statutes that use the same words. The phrase intimidate, threaten, coerce, or in any order, has been in federal civil rights statutes since the late nineteen fifties. You think about cases in the civil rights Matthew, you're talking about people who were trying to integrate hotels, restaurants, who were trying to integrate schools. Congress at the time passed a series of laws, some called conspiracy against rights, against constitutional rights, or interference with federal rights. And the language that congress chose in those cases was that people cannot, intimidate, threaten, or coerce. So I think from our standpoint and and the standard there, well settled law, is that that's that's an objective standard. That's not just your if you are unusually sensitive, that's not the standard. You couldn't you couldn't get a jury instruction or a judge anywhere to listen to you and say, well, I'm unusually sensitive. The standard would be, what would a reasonable person who's in your shoes view as intimidation, and threatening or coercion? And we have lots of lots of cases, maybe in the thousands now, that that are interpreting, threaten, intimidate, coerce in different factual contexts. And so for us, our office, I think from an enforcement standpoint, that's not an area that's not opening up a new area of law. That's kind of a comfortable place for us. And we have other, we have other statutes in Vermont law right now that include intimidate or coerce in the same sentence with threat. And so we have Vermont case law as well as, you know, from federal civil rights law. So I at least for from our perspective, that's not that's not opening up litigation or enforcement, or conflict in general, based on, you know, kind of idiosyncratic sensitivities. It's basically what a superior court judge or what I think our office anticipating what the Vermont Supreme Court would do, be like, is this fit the standard of reasonable person who's similar circumstances? So I just wanted to point that out that we don't have any concern about that. And I think if there's disagreements about that, or questions about that town clerks or their city attorneys or their town council have plenty of cases to look at for guidance. The US Justice Department in their US, attorney manual, which is a very extensive online kind of encyclopedia of federal law. They have very extensive discussions of what those standards mean. Similarly, the congressional research service puts out wonderful kind of expositions on federal law, and they have similar public publications talking about that intimidate, threaten and core standard. So for us, that's language that's comfortable. And my guess is that it was put in precisely for the reason that it kind of mirrors an existing standard. So that's all I had to say on that point. And I think lessor questions about at least my question, I think that would be it. Any questions for this stage of the game? I didn't

[Rep. Chea Waters Evans (Ranking Member)]: have a question, but thank you. That's really informative.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Oh, okay. Thank you. Appreciate it. To you.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: I'll just restate my name at this point. Sure. Lucy Boyden's assistant attorney. And thank you, Fulier. You can see why I brought him. Because he has so much rich context and history that I think really helps you in making these decisions. I'm here for more kind of the nuts and bolts of how this would look. You're all, I think, already a little familiar with how we go about enforcing the campaign finance laws, because I've testified about that before. But the quick recap of that is that in Title 17, Chapter 61, we have investigatory authority and then the ability to bring a lawsuit if there are violations of campaign finance laws. We now also have that same authority in the chapter of law that is called Offenses Against the Purity of Elections, next to S-twenty three that has now been enacted. I think it's Act 75 now, but I'm not 100% on that. So we have that for portions of this bill. As far as the new, the dilution piece of it, which is, I believe, in a newly added chapter 59 of title 17, I defer to the bill. So if I get the number wrong, please know that I'm talking about. So the section two that adds the dilution piece and the enforcement authority for the attorney general's office, that does not come with investigative tools. It does allow us to bring a case in court. And it does allow us, I think, to pursue reasonable costs associated with that. Which is great, because that is a further deterrent beside being sued, but also being on the hook for your opponent's fees or costs, it hurts. It really hurts. So, the only thing that I am a little concerned about, we are concerned about as an office, is that it really, we have to just jump right into court. We don't have investigative tools. And it's really helpful to have the pre litigation option. It tends to be faster for resolution. It tends to be less expensive for everybody involved. So it's a really great tool. And it would enable us to make more informed decisions about what cases to take to court, because we would have more evidence to look at before we choose to do so. So that would be one item for your consideration, the language that we have in Title 17, Chapter 35, Chapter 61. It would be great to have that applicable here with the dilution piece of this law. So that would be chapter 59. And I'm happy to send that over to Legis Council, if that's helpful. But that would be one thing that I would recommend, just to have that pre litigation option to save time and money. The other piece that it would help with is I'm just referring to Mayo, so I don't forget anything. The other piece about it, that I think from a policy perspective, is that it could be that a municipality has done something that does in effect dilute a population's ability to vote. But they didn't have a reasonable alternative to doing There were worse choices there. So when you have a litany of bad choices, you try to choose the least bad choice. So we wouldn't want the municipality to not have the chance to explain its rationale in going about this, and why they landed on this particular practice. So that would also give us the chance to kind of have that conversation with them. I mean, we certainly could have it before filing suit in court, but it would be nice to have this investigatory context where we're in this safe zone. The piece about the investigative tools that are in Chapter 35 and Chapter 61 that are particularly helpful, I think, for a municipality in this context, or a subject in any other, is that that language provides confidentiality to the responses provided by the subject. So under the Public Records Act, unless there's something that falls within an exemption in that act, we have to hand it over if somebody were to ask our office, give your investigative files on this matter. And if it's not a criminal investigation, if it's a civil investigation, then it wouldn't fall under the criminal investigation exemption to Public Records Act. And unless it happened to fall on any others, we'd have to hand it over. Having it specifically, expressly slated as confidential gives it an exception. So it does enable us to get more robust answers because there's that protection for the subject or the municipality that will be providing that information. So that's why I think the language that we have will be really useful. And it would be consistent with the other elections enforcement work that we do in chapter 35. That's it for my notes. So welcome any questions.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: I had one other point that, please, I want to respond to an earlier question, for another witness, that had to do with, what's the difference between this bill and five forty one. That caught my ear, even though you didn't ask it of me. Just wanna volunteer at least one difference that I thought would, it may be of interest to the committee. So that that's that intent that that threaten, intimidate, coerce standard. Five forty one has similar language, but critically, it's broader than it it sweeps broader because it not only includes under two twenty seven, the standard is you have to show that someone intentionally sought to intimidate, threaten, or course somebody. That is that they wanted to achieve that result. Under age, five forty one, it says either intentionally or recklessly intimidate somebody. And so what's the difference? So you may know, but from like a just common sense, like we all do, but from a legal standpoint, the difference is that, recklessness standard means that you may not intend to intimidate somebody, but you appreciate that you could, that it could have that effect, and you don't care. You're just like devil may care. Recklessness in the law is like someone who shoots a gun in the direct that direction of or through the window of a passing train. You're not intending to hit somebody. You just wanna fire the gun. You know you might hit somebody. You don't care. That's recklessness. And it's the same kind of standard here. So five forty one would include people who not only intend to carry out that result, but who do things. And, yeah, someone says, hey, you know, you're gonna scare people away. And someone and if there's evidence that says, I don't care. This is what I'm gonna do. That might be swept up under five forty one. It would not be swept up in this statute. This one, this narrower. Similar penalties is, you know, potential a misdemeanor up to two years or, or not two years, six months and $2,000 No. No. It is two years for each. So I think that's the difference between the two that I wanted to draw out. And we've had cases in the criminal context, just like in criminal threats, famous US Supreme Court case involving someone who posted on Facebook very threatening statements about their estranged spouse. And his defense was, oh, I was just doing like rappers do, and they talk about their exes online. The standard was, well, if you didn't intend to intimidate your spouse, there's evidence that they were intimidated. The question is if you might do that and you didn't care, you subject the sanction under the law. So that's really the difference between recklessness and intentionality that I just wanted to draw.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: And Mr. Chair, I just forgot one other thing. Sorry to ping pong back

[Rep. Matthew Birong (Chair)]: in We have plenty of slides.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: Okay, thank you. Just as far as the private cause of action is concerned, it can be very helpful to our office when there is a private cause of action, because then we're not a bottleneck. We're not necessarily You know, it can be a faster way for remedies for individuals who have experience To the extent that you want this policy with the intentional intimidation and that you understand there's a reasonable person standard and how that all ties together. But that's where the private cause of action exists in the bill right now, is so that a reasonable Under the reasonable person standard, there was an intention to intimidate or coerce. And then, yes. But I do, I hear the concern that we don't necessarily want to open up the floodgates to all the town clerks who, in my experience, really are trying to ensure the integrity of elections. So I certainly wouldn't want to encourage people to go after town clerks who are really trying their hardest and receptive to improving their practices wherever they can. So that's a policy question for you. But as far as enforcement is concerned, having private causes action can be extremely helpful in giving people, individuals who are irritated with us for not bringing a suit, to be able

[Rep. Lisa Hango (Vice Chair)]: to bring their own suit.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: It'd be helpful. Thank you.

[Rep. Lisa Hango (Vice Chair)]: I don't think five forty one addresses private cause of action either. It's to know another difference between the two bills.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: And for context, the 1965 Voting Rights Act always has always offered a private right of action. Most of the enforcement has been there because sometimes government agencies, they have different priorities and they have other demands on their resources. So most of the litigation historically has been bought by groups with legal support from like NAACP Legal Defense Fund is probably the most prominent advocacy organization that's done away with a lot of lawful voting restrictions and standards.

[Rep. Matthew Birong (Chair)]: And hango.

[Rep. Lisa Hango (Vice Chair)]: So to build on that, if, for instance, May passed, February didn't, there's still the default would still be the Federal Voting Rights Act, which offers a private cause of action clause.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Yeah, under the federal standards. And that the open question is whether Vermont wants to follow the federal standards, which it is historically, don't think whether it's good or bad, that's the point of debate. I don't think there's any doubt that in last twenty five years, it's become more and more difficult to prove a voting federal voting rights act case than it was, let's say, like 1980. That's I guess that's forty years, plus, twenty years. But and so that's, you know, that's the policy codes before you. You.

[Rep. Matthew Birong (Chair)]: Ravneesh?

[Rep. Kate Nugent (Member)]: I just wanted to make sure that or restate what you said to make sure I'm understanding a fair part of the areas that you're seeing haven't been fully fleshed out in these bills. It

[Rep. Lisa Hango (Vice Chair)]: sounds

[Rep. Kate Nugent (Member)]: like the Senate bill refers to federal standards, but it doesn't. And that's part of the issue because there is no Vermont standard that it would be based on case law. So to not refer to the Vermont standard kind of leaves it in open book.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Yeah, I think that's right. And I think that absent some other language saying, we do not, this bill, the purpose of this bill is to provide, let's say, broader remedies or relief than the Federal Voting Rights Act as interpreted by the courts. So the courts would know, okay, we won't just apply this 1990 or this 1985 year Supreme Court decision. But then they'll the court will still have to figure, okay, well, how broad is broad? And they'll be looking at this these kind of exchanges, probably to try to divine that. And so, again, when bills are on the table, our general recommendation is, this is your chance if you want to use it to express your intent, we don't get it wrong, and the courts don't get it wrong, but you're right. It's not filled in, again, we're assuming that the intent was to have a broader remedy, that could be different viewpoints on that. So that's part of the democratic process that we're talking about.

[Rep. Kate Nugent (Member)]: Yeah, the bills right now, they don't define their own standard and it doesn't defer to the federal. So that's what we need to figure out.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: I think that's right. Anything else for our guests?

[Rep. Matthew Birong (Chair)]: Thank you so much for the time. That was a lot of information to digest. No, no, no. I'm thanking you for that. I was just thinking to myself, made a note while we were going through all that. I need to review the YouTube.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: The glass of warm milk is faster than I understand if that's what you were looking for. No, no, no, no. Review it

[Rep. Matthew Birong (Chair)]: later just so I can reabsorb everything. Okay. Yeah, because it was very useful. It was a lot

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: of detail to take it. I'm saying that in a very gracious way. Okay. It's a big topic. And I mean, the best thing I could say is that you should hear a lot of voices on this because there'll be a lot of different opinions and perspectives for what people have to follow the rules about people who might be representing people who do feel disenfranchised or not fully welcome in the voting system. Thank you very much. Alright, committee.

[Rep. Matthew Birong (Chair)]: Any conversation we wanna have on this before we go off?

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: We do have a gap of time until lunch. I mean, we

[Rep. Matthew Birong (Chair)]: can work on witness list, other things with other bills, but I want to leave the conversation a little here if I'd like

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: to round the table.

[Rep. Chea Waters Evans (Ranking Member)]: I apologize. It seems to me like what we got from the Senate might be little bit disorganized or something. And I think that bones are here to do something important and necessary. And so I think it's a matter of just hearing, as they said, from lots of different people to make sure that we've got lots of different perspectives about this. I'd like to hear from people who have, maybe a community that does have multiple languages that are common, Burlington or anything, then a smaller town that might not have ever encountered that, or might have a population of folks who speak a language other than English, so forth, and see if we can just get some different perspectives from election officials or town clerks. But just listening to everyone talk so far, think what strikes me is that there's nothing new here, really. It's not like we're introducing something that's never been allowed before. I think it's just making sure that should something in my perspective, it happened on a federal level that we have these protections that we already do have on federal level that it goes away, then we still have to be here in the state of Vermont. I think that's really important.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: Yeah, no, I mean, historically, this General Assembly has done that with other traffics as well. We just did it with the immunizations schedules.

[Rep. Patty McCoy (Rutland, former Town Clerk) – Witness]: Can we get a list

[Rep. Sandra “Sandy” Pinsonault (Member)]: of who they had testimony from?

[Rep. Matthew Birong (Chair)]: Oh, we have that list. We've been working from it. Yeah, Yeah. And happy to expand on it as well. And I think one of the things picking up on what Robert Evans was saying, and AG's office spoke to it a little bit, right? Like this bill went up to went from like 20 whatever pages up to 40 whatever pages down to say eight pages. And so in my humble opinion, that's where nuance gets lost. So. Taking a look at that stuff, like I want to talk to counsel when he has time to review his testimony also, see what he picked up on. But yes, I think we're all agreeable that this is worthy of continued work. I'm moving out on it in. Doctor. Nugent.

[Rep. Kate Nugent (Member)]: Yeah, I think what I took away from that is just that there's a lot of good feelings in this bill, not but. And the Federal Voting Rights Act has a lot of specificity in it in terms of how it gets applied, even in terms of the standard of the percentage of people who speak a certain language in a community. And that's how you determine when you invest resources and making sure that those languages are translated, I think we could do a better job of in general, making sure that we're specific about how we use our resources and that there's a standard that we can apply. I appreciate having that spelled out more clearly. And also, other thing that kind of stands out is that it's a good thing, but the part of the reason, and I know that there's lots of thoughts about this, but that the Voting Rights Act is harder to prove that there's been violations against it because there has been a lot of improvement since that time. So I think it's important to keep that in mind too, that what we're remedying is actually specific and targeted.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: The

[Rep. Chea Waters Evans (Ranking Member)]: deputy secretary said the other day that this doesn't quite resemble the Voting Rights Act much anymore as it started, and that she would even prefer that we rename Voter Protection Act, which I think might help us reframe a little better what we're trying to accomplish and what we want to do here, because it's not exactly the same. But it feels like we have an opportunity to craft something that is, at least look back on what they did and figure out what's important to us, and then create a solid bill that's accomplishing some goals that we set up together. I just think it's super important right now. That's all I have say. Anything

[Rep. Matthew Birong (Chair)]: Anything else from the table? Seeing no hands, seeing no raised eyebrows.

[Leslie Wells (Assistant Attorney General, Vermont Attorney General’s Office) – Witness]: Not at all.

[Rep. Matthew Birong (Chair)]: Okay. So constituent services, tracking bills, we've got stuff popping up in the senate. I know I gotta go there tomorrow for the treasurer's bill. And then honing in witness lists and that type of conversation we can have lightly, on this and the, child life trip bill. Those are I think these are the two very large conversations we have immediately in front of us right now.

[Julio Thompson (Co-Director, Civil Rights Unit, Vermont Attorney General’s Office) – Witness]: That, Nick,