Vermont Legislature SmartTranscripts:

[Matthew Birong (Chair)]: Alright. Good morning, everyone. It is 09:30AM on Wednesday, April 15. Happy tax day. We got your stuff in on time. Moving forward to our first order of business, we have, continued witness testimony on s two nine eight in acts relating to creating the Vermont Voting Rights Act. And, we have asked our friends from the AG's office to come back and have a deeper conversation with us on what we could consider, including in the bill, sort of the rough gist from last week was, like, the legislative intent was understood, but there was some nuance that may or may not need to be addressed should we choose to move over forward with some of that some of those conversations. So with that, I guess I will just ask our guests to join us. Yeah. No. Totally. I kinda

[Leslie Wells (Assistant Attorney General)]: Is that okay?

[Matthew Birong (Chair)]: Oh, absolutely. I was kind of anticipating it. So, yeah, please feel free.

[Leslie Wells (Assistant Attorney General)]: Good morning, everyone. I'm Leslie Wells, Assistant Attorney General. With me is Julio Thompson. Morning. Assistant Attorney General as well. As you know, but I'll say it for the record because I'm able to have that in every time we testify. I'm here in my capacity as chair of the AGO Internal Campaign Finance Committee that investigates allegations of not just campaign finance fraud, but elections fraud as well. So that's why I'm here to talk on that in that space. Julio, you wanna

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: give more context for you? Sure. I'm co director of the civil rights unit. And although our daily work doesn't involve rights, we are proactive enforcement unit for various state civil rights laws. And so part of the lens that I'll be looking through today will be pros and cons of different standards for enforcement so that people are carrying out the laws, the legislator intended to be talking about.

[Leslie Wells (Assistant Attorney General)]: So I'll start with, we came in last week and testified and gave you a lot of context for the Federal Civil Rights Act. And I just want to make it really clear. We do support the bill. We are absolutely in support of the bill. And to that end, we have some ideas of how to address the concerns that we raised last week. The low hanging fruit one is I raised the request for pre litigation investigative authority. That would be consistent with what we have in the other context of elections investigations. For example, in Title 17, Chapter 35, Offenses Against the Purity of Elections. I don't know a shorthand way to refer to that chapter, but that's what it's called. When we're looking at issues where somebody might have been accused of voting twice, matters like that, we have this investigative authority, thanks to S-twenty three, the synthetic media in elections bill, that is now law. We also have that same investigative authority in the campaign finance violation realm, when we're investigating alleged violations of campaign finance. And so, last night, I sent some suggested language that is just up and paced from the campaign finance chapter. I tried to make some tweaks to it, where there's cross references to campaign finance law to reference the piece that we're looking at here in section two. So, where I'm suggesting that we have this is in section two, because what section two is doing is adding a new chapter into title 17 that isn't already covered by title 17, chapter 35 or 61. So, chapter 59 would need to have its own authority or cross reference to another section, whatever the council prefers on that. I'm not an expert in drafting legislation. But I thought it would be easier It's always easier to edit than it is to create. So I sensed some language that I am explaining I pulled from 61. So I think that's a very low hanging fruit way to address that concern. And what I testified about the rationale behind this request last week that I'll just remind you is, honestly, it's to try to save money for everybody involved, try to save our resources. Because if we can use these investigative tools to even determine whether there's merit, then we prevent tying up the courts. We prevent tying up our resources and filing something in court. We prevent the person we're investigating from having to hire an attorney. They might choose to for the investigation, but it's different. When you're in court, it's a different level of engagement. And most people feel compelled to hire attorneys at that stage. And it's more nimble. We're able to get to the heart of it pretty quickly. Whereas in court, we have protracted discoveries. And even if we try to move it quickly, it's not, by its nature, a quick process. So this should help us move it forward. And it's consistent with how we investigate elections law and other spheres. So from a policy perspective, it's not creating anything new. It's not expanding our authority. It's just making sure that it's clear that it's consistent. So that's the basis for the recommendation about that. As for the other issues that we raised, I'm gonna turn it to Julio in a second. But I wanted to say that we raised a bunch of issues. And one idea about if it's not tenable to develop robust standards in this session. There's always an option of making some parts of the bill not go into effect immediately or by July 1, whatever the typical I think the bill has effective upon Yeah, it's immediate effectivity. So, I know you're well aware of this more than I am, but different sections of the bill could certainly have different effective dates. I think that the campaign expenditure section of the bill, section four, about expanding campaign funds on security, that would be easy to do effective immediately. And I know that it's a policy concern of the Secretary of State, for example, to make sure that there's an ability for her to seek protection, understandably. So I think that one would be easy. It's not changing election law in an election year in a way that is difficult. As far as enforcing that campaign finance expenditure, I don't see it as fairly problematic. It would be very easy to just add into how we consider exemptions. For example, candidates can spend campaign money on childcare while they're campaigning. So I would just view it through that lens, and that's no issue at all. Before I turn to Julio for more details about the dilution piece in section two, do you have any questions or want me to address anything further on the investigative tools? Any

[Matthew Birong (Chair)]: questions at this time? Seeing no hands.

[Chea Waters Evans (Ranking Member)]: Okay. Alright, Julio, you want to talk

[Unidentified Committee Member]: a little bit more?

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Well, I'm gonna spend most of my time talking about section two of kind of this the state version of the federal voting rights. But before I dig into that, just to kind of go a little bit higher up in in terms of looking at February from a broader perspective. So you have five sections entitled, that's section one, two is the Voting Rights Act that I'm going to spend most of the time talking about. Section three are those various interference offenses that are intimidation, false information, misleading people about voting times. Section four is security, and then five is the effective date. At least from from our perspective, in the civil in in the civil rights unit, relatively speaking, sections three and four, that's the, you know, the election misconduct and security are the easy parts of the bill. I don't see, and again, I think we would defer to secretary of states about always about electoral impact because it is an election year. We're aware of that. And I think they'll have, more insight on that. But from my perspective, in terms of what goes into effect first, those seem to be front of the line. Those are consistent with existing Vermont practice. Vermont has done this sort of thing before. And the language, at least to my eye, didn't seem particularly open ended or problematic. Doesn't have a lot of unanswered questions. And so, it's conceivable that you may one path is that you have parts three and four go into effect sooner, and then two may go in later, depending on where it's where and how section two, the Voting Rights Act stuff gets filled in. And I think you're and I saw on the list today that you're gonna have some other folks who will be talking more on the policy from a policy perspective, I saw at least there was an invitation for someone from the National Conference of State Legislators to talk about that. If you haven't looked at it, the the NCSL has a great web page about this that shows the nine laws and that are already on the books, some dating back close to ten years, as well as an examination of some of the bills that are pending in other places. I think that's very helpful. So it isn't like we have to start from scratch and we don't have to burrow into the federal case law and interpreting the federal law. You can look at what some of the states have been doing, particularly some of the states who have had a little bit running time to to to implement their laws. So I think that's a great resource, and and I was I was really glad to see that, at least it it appears that you may have a direct input from from that office because I think that's very helpful. With respect to the Voting Rights Act section, again, the perspective and I there was a lot of information to cover last time, and I'm sorry. I talk fast sometimes. So if there's any any point you think I'm going too fast or I'm not clear, please just just interrupt me. For for our office's perspective, it's not a question of whether we should have a state voting rights act because I think we emphatically agree with that. The question is what kind of state's voting rights act that you have? Because, because there are options, a lot of the other states, that have enacted the laws have basically, through their own work on looking at, you know, the way that federal law has been implemented. Remember, law doesn't apply to just federal elections. It goes from congressional or federal elective offices all the way down to town votes on electing representatives there, city councils, and the like. And so what they've done is try to pick and choose, codify elements of the case law. It's clear that they borrowed from what the court are done for the things that they think work for their jurisdiction because when you're talking about Voting Rights Act, you're really talking about the effect on on communities of color typically and and those with with limited English proficiency and the demographics obviously vary widely from state to state. And so it's no surprise that some states with a different racial or language makeup have different laws and and different ways of looking at it. Some some, for example, when they're looking at populations, we'll look at not just, let's let's say, African American voting segment, but also African American plus Latino together, where it's like it is a hybrid lens to look through in terms of voting opportunities, and and that makes sense for it makes more sense for some places than for others. So what and I I had mentioned last time that the senate gov ops committee had looked at version 1.1 of the introduced bill, 43 pager I brought in here. That basically, you know, tries to fill in what the criteria are. Like, if we were to look at or if a court were to look at a claim of voter dilution or vote suppression, what factors will we look at? What what factors could we not look at? And that is one feature a lot of of a lot of these state voting rights acts is that they provide kind of a do list and a don't list, and they don't all line up on what the dos and don'ts are. But they do provide, I think, crystal clear guidance for towns, localities, as well as courts in our office in making a determination about what facts are relevant and what are not relevant. And I think that helps inform decision making at the local level, in terms of what kind of assessment are we going to make before we implement and vote on something in the first place. And then if something comes to our attention, how we're going to evaluate that. And, know, some of them can be quite numerous. One thing one Voting Rights Act that I spent a little time recently looking at was the Minnesota Voting Rights Act that was enacted in 2024. There are other ones, like I said, there are eight others, but I just happened to to spend a little bit more time on the Minnesota Act because they had some features that I had that I hadn't mentioned in my prior testimony. So Minnesota like, one feature of the Minnesota Voting Rights Act, which has these, you may consider, you know, list of factors and you may not consider or shall not consider factors. They also have a mechanism relating to lawsuits for for private parties as a private right of action, and I think this bill also contemplates a private right of action, which historically has been the driver of change in voting rights, has been private rights of action. Typically class actions brought by say NAACP, the Defense Fund and other organizations. That that law creates, in a in a way to reduce litigation backlogs and expenses has for private parties, a pre notice or pre lawsuit notification requirement. So if, some voter or some group of voters think that, you know, there are inequities in the voting process, something's gonna create dilution or suppression in any way before they go to court. They would have, I think, the option to always to notify our office, which may investigate it. But in addition, they would have the right to go their own path if if they if they wish. In Minnesota, before you do that, you have to notify the jurisdiction, say a letter to the town that identifies the concerns and then give the town sixty days to cure it before you can go. And the idea behind that, at least in the Minnesota law, policy behind that, again was to try to get people to remedy things, informally outside of a formal legal process. That's a feature I didn't mention before. I can see some benefit to that. It's just a question, I think, for you and a committee and other stakeholders as whether that is something, that would be suitable for Vermont. The flip side of that, and I think you there may be, you know, a desire to have some exemptions is that you may some of those election issues may only be come to the notice of people relatively close to an election date or a deadline. And so they may sixty days may be too long for them to go to court. They may learn about a lot or there may be some last minute change that people think is palpably gonna affect voting in that jurisdiction, and then people may want a shorter path to go to court to get at least a temporary order to to preserve the status quo before a new change goes into effect. So that's that's one thing we would be looking at is whether you want to have that kind of pre suit notice. From our standpoint as state enforcers, if we're investigating something, especially, of course, if you give, our office those investigative tools, the civil investigative demand, which allows us to do our investigation without having to go to court. We're already we're all as a matter of practice, we're already going to be in that position. The civil rights unit where I work in, we've had civil investigative demand authority going back more than a generation. Most of our work, we're in that investigative role is done through the administrative investigation standard. We have early mediation, so even before we start investing resources, we give the respondent or the employer or whoever's responding to our investigation, we give them an opportunity to talk with us if there's something, they have something we think is unlawful, they can cure it right away. And then that may be the end of it. Sometimes it's even less formal than that. We call it in our unit phone law, where we call someone up and say, Vermont does have a parental family leave act. It does seem to apply to this individual. Do you have legal counsel that we can talk to? And they say, Oh, no, it's a big misunderstanding and things resolve. So, those informal tools and those administrative tools can be very valuable from a state enforcement standpoint. Our unit rarely goes to court when we indicate that we've done our investigation and we tell responding party that we think we have identified a violation, usually the matter resolves. And that's the that's the least expensive and the most time effective way to do it. Litigation, as you know, being governor of operations business, you know that, you know, where the courts are at Vermont. So that would be one that would be one area to to look at. I think in terms of other areas to to to look at, is to identify or pick, because I think you have your choice from version 1.1, and from other states, the sorts of remedies you think would be appropriate, or you think would be appropriate for a judge to adopt? One could just leave it to the discretion of the judge, and that's a policy choice. But I think it's instructive to to look at, because I think a lot of us aren't thinking like if you have a question of voter dilution, how do you solve it? For example, you can have something where a town has an at large election, and and historically, the the voting is racially polarized. So maybe the voting minority group tends to vote for candidates of a certain party, and they're always outnumbered. So, you know, one one remedy for that kind of, you know, ongoing imbalance in voter power, you know, would be to consider whether if there are elected seats, instead of electing all of the city council seats, you have districts like you do in many towns where you divide it up. And so there are more opportunities for people to put in more candidates rather than just a voice vote. Today, as I sit here before you, I don't have like our preferred list because I think you know other people who are more subject matter experts from the stakeholders and the secretary of state's office. But I think identifying potential remedies, it also gives us guidance so that if we are starting out, starting out an investigation, we know what remedies you think are fair play and which are not. And I think ahead of time, towns, when they're deciding what to do, they may be looking at when they're debating whether they're gonna make you know, or have a particular voting process or practice, they may you know, their town or or council, or if they're working with council from the League of Cities, they can look at those remedies and see what are all what other alternatives do they have, if there is going to be an issue. And so, the idea of just people knowing ahead of time what the rules of the road are, gives them a chance to stay out of trouble to begin with, and also makes pre litigation remedies very palatable. So I think that's an important feature of it. I've been talking for a while, hopefully not too fast, I'll stop it. Is there any questions about what I've said? Any questions at this stage right

[Leslie Wells (Assistant Attorney General)]: here? No.

[Matthew Birong (Chair)]: Okay. So I know reporters Evans has taken extensive notes, but yeah.

[Chea Waters Evans (Ranking Member)]: I sure am.

[Leslie Wells (Assistant Attorney General)]: Could I just add, I just just to put a finer point on it, we really defer to the Secretary of State's office when it comes to policy matters on this bill. Aside from investigative tools, we're probably better positioned to speak, but all of these concepts about what we're going to be thinking about enforcement for policy matters for the state's office, and obviously, ultimately you, but I refer to them when it comes to weighing on those matters from the state. So thank you for inviting us, and happy to help brainstorm as you shape how you want this bill to look. Happy to offer language or review drafts, of course, anytime. But we're here to help. And sometimes it's hard when we bring up a lot of issues that we're seeing with it. It can be a little overwhelming. At least I'm overwhelmed sometimes when I was dealing with that in my personal life. I have to come up with a plan. I need a plan. I can't feel confident until I have a plan. So we're here to help you as you develop your plan. And please don't hesitate to contact us.

[Unidentified Committee Member]: I think I saw a hand

[Matthew Birong (Chair)]: anyway. Rick Waters Evans.

[Chea Waters Evans (Ranking Member)]: It wasn't more of a question. It was just saying, when hearing you both speak about this, it seems like we I think generally don't want to speak for everybody in the committee. But I think in this case, I think we probably all agree that we don't want to create a law that's difficult to enforce or that it's going to cause more problems after we create it. So your input is valuable because we want it to be enforceable and reasonable. And so these are good things to think about. Thank you.

[Matthew Birong (Chair)]: I just want to say I appreciate the quick turnaround time on us asking for more feedback. That was very, very appreciated.

[Unidentified Committee Member]: Happy to do it. Cool.

[Matthew Birong (Chair)]: All right. Any discussion from the table right now on any of this? You y'all are free again. And any thoughts on this piece right now? My pen goes.

[Unidentified Committee Member]: I just would love to know how senate govox got from the introduced bill through several drafts. And each draft was dramatically different than every draft. And I just really don't know how we got to where we are, but I feel like this, notwithstanding the language that was just suggested, is a pretty simple, straightforward bill that mirrors federal law. And I understand the language that could be that was suggested that could be inserted into this would give the same investigative authority as the AG's office already has for other portions of elections law. That sort of makes sense to me, that they would be given another opportunity to do pre litigation investigation. But I'm just at a loss as to how SGO got to what they sent us.

[Matthew Birong (Chair)]: Grand Wobbers Evans.

[Chea Waters Evans (Ranking Member)]: I had an informal conversation in the cafeteria with a member of Seneca Vops, who told me that there had been some, as we do, we have a lot of ideas, and then you get testimony, and then there are concerns that are flagged from what they have before. I wonder if they would be willing to come and talk about that a little bit. They might be able to come see us and get some tests.

[Matthew Birong (Chair)]: Reporter of the bill, perhaps?

[Chea Waters Evans (Ranking Member)]: Yes. Perhaps the reporter of

[Unidentified Committee Member]: the bill.

[Chea Waters Evans (Ranking Member)]: Have the

[Matthew Birong (Chair)]: bill sponsor.

[Chea Waters Evans (Ranking Member)]: That's yet to

[Matthew Birong (Chair)]: have the report.

[Chea Waters Evans (Ranking Member)]: Right. So that would be good. But what they had indicated to me I can have a bill there. Yep. Like, we're on the same page. It would scare you. Interaction. Is that a lot of it were concerns from town clerks and some other folks who are thinking that it was not going to be useful at this point. So, but I'm sure they can come to this. Okay. I think that A lot more information about it.

[Matthew Birong (Chair)]: I think that may be good for, you know, one of the slots we have open later in week because we also have a conversation about this later this afternoon after the floor. So I think that'll tee up a lot of things we wanna understand better once we're done. Completed this testimony, and then we have that after the floor. So we'll regroup at that point with clear focus on this direction.

[Chea Waters Evans (Ranking Member)]: As as someone who had a bill once that was 62 pages, and then that passed as nine, I feel they're paying, but also remember how things happen. Sometimes it's better to just get something concrete. So small that's more. Know. It's so hard. But anyway, yeah. I mean, eight pages down from 42 is pretty significant. So that would be an interesting history to have. I just want to make sure that we are very clear when we have Senate gov ops come in or the bill reporter that we're not Sometimes I get confused about what wasn't it and isn't anymore and how And I just want to make sure that we're all clear when we talk to her about what remains. Because things can get muddy pretty quickly.

[Matthew Birong (Chair)]: Understood. I don't

[Unidentified Committee Member]: know if this is the biggest question to ask now, but I'm curious about how this interacts with each five forty one and what the paths are for both of those. Where

[Unidentified Committee Member]: is five forty one now? Is it in

[Matthew Birong (Chair)]: That is in Senate judiciary. Yes.

[Unidentified Committee Member]: Could we hear from them perhaps as to the intersection of these two bills? We had a side

[Chea Waters Evans (Ranking Member)]: by side on that. Yeah. But

[Matthew Birong (Chair)]: And we I think that what was it was our house judiciary bill. So I think it would if we wanna hear from somebody from a judiciary side, I think it would probably be best to hear from someone there. I believe, if I remember, the reporter was

[Chea Waters Evans (Ranking Member)]: have here.

[Matthew Birong (Chair)]: I'll look that up. Addison, get your inside?

[Leslie Wells (Assistant Attorney General)]: Rebecca, yeah.

[Matthew Birong (Chair)]: That's what I was trying to had the face in on the name. Yes. Sorry, Ian. Is it,

[Unidentified Committee Member]: do you know, did Jay Hooper be considered in Senate? I

[Matthew Birong (Chair)]: had a informal conversation with the chair of the Judiciary about including it here. And that was my my recollection of that conversation was like a time management thing possibly for to pass for senate judiciary because of work. And this is a appropriate home because there was near like, tree. Yeah. Grab water's at us.

[Chea Waters Evans (Ranking Member)]: When we were working on 08:41 earlier, I remember there was the animal welfare bill that that we worked on. There was an animal It was there was something to do with animals, but it was in judiciary because it was like animal cruelty related. And I remember Legg Council telling us that when they have two similar bills or that have similar language or are trying to control the same thing at the same time, that they keep an eye on it to make sure that the language isn't contradictory. And that as it moves forward, because what if one doesn't end up making it and the other one does? So that it's okay to have two moving through the process at the same time and that they have an eye on it. So maybe that's something we could just ask our council just to double check that they're keeping an eye on it.

[Leslie Wells (Assistant Attorney General)]: But I'm assuming that they are. Diversity of many businesses. What's that? Pursue many things.

[Chea Waters Evans (Ranking Member)]: Yes. Right. Which is, like I said, I assume that we should also double check.

[Unidentified Committee Member]: This is Tim's spell, correct?

[Matthew Birong (Chair)]: Yeah. Right. Anything else? Uh-uh. Okay. We will reconvene at 10:30 for testimony on S two zero six and act related to licensure of urban trafficking and educators by the opposite of professional regulation. Alright.