Vermont Legislature SmartTranscripts:

[Rep. Matthew Birong (Chair)]: Alright. Good morning, everyone. It is Thursday, April 23, a smidge past 09:30. We are taking up continued s two ninety eight, an act relating to creating the Vermont Voting Rights Act. Before we get to our witness list, we're gonna start things off with mister Devlin. We just posted a new draft of the bill we've been working on, and we're gonna take a few minutes for him to guide us through the new words on the page. Counsel.

[Tim Devlin (Legislative Counsel)]: Very much for having me, of Byron, committee members. For the record, my name is Tim Duffin, legislative council. You should have access to draft 3.1 dated to today at 7AM, and the updated language will appear in blue highlights. The yellow highlights still appear just kind of at some visual history of where this committee has gone. So there are three categories of changes. One has to do with the insertion of individuals having a disability when we talked about protected classes. The second one has to do with voter checklists, as testified to by the secretary of state's office yesterday. And then the third has to do with a suspension of penalties for candidates for state legislative and county office, who do not, or who either delinquently or fail to, file disclosures. And that language has been reworked, in substance remains the same. So start off with page one, and we are in the voter protections to be added chapter 59 here. And so we have a definition of protected class that we'll now read, protected class means a group of citizens protected from discrimination based on race or color or membership in a language minority group or having a disability as defined by nine PSA 501. And then similar kind of language will appear on top of page two under the to be added 17 secondtion 28.02 denial, sorry, vote denial or dilution. And this will read, No voting qualification or prerequisite to vote or standard practice or procedure shall be imposed or applied by the state or any It 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 or having a disability. Perhaps I'll insert an additional comma in there, but Let's see. So now we turn to the new language regarding voter checklists, and this will now appear on page five halfway through. So the new reader assistant heading green voter checklist, and we'll be, this will amend existing statute 17 b s a twenty one fifty four statewide voter checklist. So we'll skip down to subdivision c here, where we talk about access to, the statewide checklist and then introduce language getting to, a new municipalities portion of the statewide voters checklist. And again, just to remind the committee members, is language that will, but structure for attestation for, provision of such information will not be abused essentially. Apologize, there's a thought size error there. Correct that as well. So we have let's see. C one will now read, any person wishing to obtain a copy of all of the statewide voter checklist, municipality's portion of the statewide voter checklist, or any other municipal voter checklist shall swear or affirm under penalty of perjury pursuant to 13 BSA chapter 65 that the person will not, a, is unchanged, b, is unchanged, and then we'll get to two. I will now read this is a new awesome, but it's expanding. This is the one existing language shall read. In the case of a statewide voter checklist, the affirmation shall be filed with the secretary of state. In the case of municipality's portion, the statewide checklist for none of it or any other municipal voter checklist, the affirmation shall be filed with the municipal clerk. They're specifying that the affirmation will apply to various types of checklists as well as where to file those.

[Rep. Matthew Birong (Chair)]: And I have a hand from her at this one.

[Rep. Kate Nugent (Member)]: On that on number two, Tim, on the first line, it's missing the word of. Okay. The case Thank

[Tim Devlin (Legislative Counsel)]: you for appointment. I'll have that updated.

[Rep. Matthew Birong (Chair)]: Sorry, Rep Waters Evans. You're in my blind side.

[Rep. Chea Waters Evans (Ranking Member)]: That's okay. And I'm left handed, so it's like way over here. The page before, page five, line 14, just a nerd question. It says, must swear or affirm under penalty of perjury. But when you were reading it, you said shall. And is there a difference between those two? And is there one that we prefer to use? Because I feel like we usually say shall, but it says must. Yeah,

[Tim Devlin (Legislative Counsel)]: they are synonymous, but we typically are drafting conventions, predicted that we use shall.

[Rep. Chea Waters Evans (Ranking Member)]: I don't want to pick on you. I appreciate all the good work you've done. I just was curious because I don't often see must.

[Tim Devlin (Legislative Counsel)]: That's okay. Always say we have the hood open, we can change anything.

[Rep. Matthew Birong (Chair)]: Let's keep tinkering. We're going piss now.

[Rep. Kate Nugent (Member)]: And you did say line thirteen, fourteen font would be adjusted to be back to these things.

[Rep. Matthew Birong (Chair)]: On to the carburetor.

[Tim Devlin (Legislative Counsel)]: So, next we turn to the suspension disclosure penalties for candidates for state legislative and county office. Here we are at the bottom of page six, breaking down to page seven. And, there was a request that we kind of clarify who's enforcing here. And so the language has been restructured to kind of enunciate the responsibilities and duties of various offices, coordinating the overall enforcement, effort. So we have language that will now state, notwithstanding 17 BSA, twenty four fifteen as that penalties provision through 05/30/2027. So we removed that prior date of June 1 through then, we have to say through. So basically, it would happen upon effect whenever this bill is passed to the legislature to sign, not sign. Through 05/30/2027, the state ethics commission shall not enforce against any delinquent filers nor shall the office of the secretary of state, who is that earlier, notify the state ethics commission of the names of delinquent filers, nor shall the candidates for state office, county office, state center, or state representative be otherwise penalized for delinquent filing a disclosure. I'll remove that for shell in the middle of their tone. That's the excuse.

[Rep. Matthew Birong (Chair)]: Any questions for council? Rep Nugent?

[Rep. Kate Nugent (Member)]: I think it's the same question. I'm not sure if it applies similarly, but the two parts are the two There's two places in this poll at the moment. It seems to me that we're enumerating some types of categories, but not all of them. And I was just wondering why and if that's a good practice. In terms of protected classes, I think that adds one, but it still doesn't cover all of them. So I'm wondering, would it be better just to say protected classes? And then similarly with the campaign expenses.

[Tim Devlin (Legislative Counsel)]: I would say protected classes means different things depending on the context and the Voting Rights Act context, which this is an inheritor. It really has been limited to race or color or membership in a language minority group. If this group, this committee wants to expand it to to other classes that may be protected in the context, as your prerogative. And we should, if that's the goal, I recommend that the committee does, explicitly include those just because we have a definition, it's finite, and won't cover anybody who's not listed here. To tail end of their question there about the effect of enumerating things in the campaign finance context as far as what included the definition of expenditure, correct? And was your question why do we or why do we not have additional examples there?

[Rep. Kate Nugent (Member)]: Yeah, I think you might have talked about So we had childcare called out in the field originally, and then we added self protection, but it seems like there's a whole bunch of different types of expenses. Is that because it's Sure.

[Tim Devlin (Legislative Counsel)]: Yes. And so the definition is, rightly understood as seven sorry. And this is on page seven for committee's reference. We're in section seven as well, and then, subdivision seven, the definition of expenditure. So what we're really looking at is the the holding language, if you will, seven, meaning a payment disbursement, distribution, etcetera, etcetera, paid or promised to be shared for the purpose of influencing the election, advocating a position on a public question, or supporting, or opposing more one that's hands on. So that is where we start from, and then we have a non exclusive list that's put forward in A, by use of the word include or statutory interpretations referring to section in, going back to section in title one, this will be interpreted as including but not limited to. So these expenditures may include, but not be limited to expenses that are necessary to allow a candidate to campaign, such as then we kind of go through these things, of which we add some additional examples to provide clarity to individuals who are running a campaign, what they can what will be considered an expenditure. There's no prohibition or permission here. This is just simply a definition. And so it really kind of applied to, okay, what is being reported afterwards? Because that's the, of substance requirements in our campaign. When we're talking with this definition anyways. So when it comes to, okay, what else could be considered that? This doesn't limit, items that could be considered expenditures for the most part. We'll say that it's qualified by the the what should be in seven. That is, you know, is it being used for the purpose of influence in election or advocating for position upon the question or supporting or opposing one of those candidates? That's the way we should we should be starting from to see if something intuitively falls to expenditure. Yeah. I'll just gotta leave it right there to answer your question or happy to kind of delve into it further.

[Rep. Kate Nugent (Member)]: It makes sense to me that it doesn't limit it based on how I was reading it. I was just wondering why we're calling out those specific. If there is like, is it referencing some other list of authorized expenses, or is it just

[Tim Devlin (Legislative Counsel)]: No. Not in statute. You have the I guess I wonder

[Rep. Kate Nugent (Member)]: if it's if it's kind of distracting or it could be confusing because it's calling out specific expenses, but not limiting, and it's not referencing any list of things that are authorized.

[Tim Devlin (Legislative Counsel)]: I can't really comment on whether it would infused or how those are being regulated by this one necessarily interpret language.

[Rep. Matthew Birong (Chair)]: I think that by referencing these specific items, clarity is speaks to those as opposed to that more open ended language that we had before that was very broad interpretation. I think that's best the chance. We could have the conversation about what the three things are, of course, But I think that being specific to those things actually offers more clarity. Mean, that's just my opinion.

[Unidentified Committee Member]: I'm kind of thinking along the same lines as rep Nugent, and going back to the beginning, also spelling out the protected classes. So, I think when it comes to something as important as voting, all protected classes should be protected in terms of being able to cast a ballot. And I remember conversations in the past biennium about other protected classes potentially not having access to a ballot. So I would be more inclined to go general and just say protected class and also not spell out. But I'm not certain, and perhaps witnesses later today could speak to any rulemaking authority that may be available to the elections division so that it's understood that child care or dependent care, sorry, expenses are allowable, as well as personal protection, personal security. And that's just a thought. I'm thinking out loud, so I don't leave any answer unless Tim has a definitive answer that no, that can't happen.

[Tim Devlin (Legislative Counsel)]: I would say that I would, for legal reasons, advise that the individuals who could be considered considered under a protected class be enumerated or at cross referenced just because protected class is used differently in different contexts and different groups of people. So if we just say protected class, then you open up questioning, okay. Well, who really is in this? Because it's it's protected class, under Civil Rights Act, ADA, Age Discrimination and Employment Act, those kind of other those are like the federal buckets that I'd have to check exactly to see how we use it in different contexts in the state, I believe we do. So, but I think I can look into how we use that term across our statutes if wanted. But I would just say that if it's up to just protected classes, that would, I believe, introduce some ambiguity. Yes,

[Rep. Kate Nugent (Member)]: Rutland. So just summarizing what I'm hearing, protected class is specific to context. I looked it up just briefly and found there's public accommodation. I didn't see something specific to voting, but that makes sense given the history. But then as far as the campaign expenses, that's not limited or it's not limited to what's named in this bill. So those might be two different types of situations.

[Tim Devlin (Legislative Counsel)]: Yes, we're dealing with an exhaustive list and a non exhaustive list, something where we say, Okay, this is the entirety of the class of individuals we're talking about versus expenses. This is an open ended list that here's some examples, but doesn't necessarily limit it to other things that could come in as an expenditure. So to we could, I mean, of course, it's up to the committee to either close off the universe in one or open it up, whatever kind of combination you want. We kind of just discussed what

[Rep. Kate Nugent (Member)]: some potential options that you could spend campaign extensions on. And that seems like how that got into the bill. But there's no list somewhere that it's referencing. I think that's where

[Tim Devlin (Legislative Counsel)]: it could be. I I would

[Rep. Kate Nugent (Member)]: explore that a little bit more.

[Rep. Matthew Birong (Chair)]: Yeah, no, I'm happy to put more time in on that. Anything else for Tim right now on the new language? Identified a couple of things to have more conversations on, but thank you for the updated draft, sir. You're welcome. Alright. And now moving on to our first witness of the morning joining us against Zoom, we have, Christina Sievert, executive director of Vermont State Ethics Commission. Good morning.

[Christina Sivret (Executive Director, Vermont State Ethics Commission)]: Good morning. So thank you for having me. And so I'll say that I am currently attempting to take my first vacation in four years. So I am not totally up on everything that's been going on, but I thought it was important for me to be available and kind of give an overview since I think I'm kind of the common theme in terms of how things have worked for the last four years when it comes to candidate financial disclosures and executive officer financial disclosures. So I just thought I could give you like a quick recap of the history of how things have worked in the past. So if you look at the statute, there's a statutory requirement, obviously, for executive officers and candidates to fill out financial disclosures. I have never viewed that as being an ethics commission, a requirement that is associated commission. I look at it as a standalone requirement. And then each body, each entity that has jurisdiction over the category of people who have to fill out the form handles the, you know, administrative work associated with that. So for us, we oversee public servants, state employees, For the Secretary of State's office, they oversee candidates and elections. That's their jurisdiction. State employees are ours. So we handle the executive office reforms. We create the base form. My understanding, this is before my time, is that we create the base form that both entities use because somebody has to do it. And the legislator wanted there to be uniformity in the form, so everyone was getting the same questions, because the statute, the language that goes into the form is statutory language. We don't have any discretion over that. We basically just copy over what is in statute, make it into a question, put it on a form. So the way it has worked since I have been there and before my time is the candidate financial disclosure form. We really have nothing to do with it. It was created once many years ago. It has not need to be updated, but has always gone out with a candidate filing package. I emailed a sample of that over, and I think Nick has posted it to your website, if you just want to take a look at how this has happened. And my understanding that this hasn't changed recently. This is a form from 2022, 2020 just because it's the only one I can find. But whoever had to fill out the candidate financial disclosure form, the form is there at the end of the packet to make it easy for people. It isn't a requirement of running for office, so it makes it easy to have that included in the package in its entirety. So my understanding is this is how it's worked. There's never been any contention on that point. It's always been posted on the Secretary of State's website. It's never identified the Ethics Commission in the form because, again, I don't view it as an Ethics Commission form. It's a standalone requirement. It's not the Ethics Commission requiring anyone to fill out the form. But I don't think that's super important right now. I'll just say that none of that has ever been in contention before. The only thing that has ever been in contention is who is responsible for answering the questions. If somebody has a question when they're filling out the form, it's not a complicated form, still not a complicated form, but who's supposed to do that? So when I first started, some questions were sent to our office by the Secretary of State's office. All the questions had a similar theme. They generally were somebody didn't want to do something. They didn't wanna disclose something. They're uncomfortable with putting some of their information in the form. And the questions were always led to what happens if I don't file this? What happens if I leave this information out? And I felt like the Ethics Commission should not be answering those kinds of questions because we don't have jurisdiction over elections. And essentially came down to answering questions about what are the qualifications to run for office? And so I had this discussion with the Elections Division at the time. They kind of felt like just say, there was no penalty at that time, right? So if somebody didn't answer the questions, it's not gonna bar them from being on the ballot. So their answer was, you can just tell them that. I felt like we shouldn't be telling them that. So we're at a stalemate there. During the last election cycle, got no questions. No questions came into our office at all when it came to candidate financial disclosures. My understanding is that because the new elections division was answering those questions, they sent a few of them over to me to ask for my thoughts on how they should answer them. I gave them my thoughts, they handled it. Because the commission agreed that we didn't feel like we should, there's two issues. Can we answer them given our staffing level? Should we be answering them? Given our staffing level, no, we don't have the capacity to take on more work, but there is the second question of should we be answering them when we don't have jurisdiction over elections? So I think what's brought us here is mainly the second question. This has just been an ongoing issue. I'm hoping that we can find some resolution to this because I feel like it's not the Ethics Commission's eyes felt like it's not fair not to provide as much service just to members of the public as possible when it comes to executive officers. We do answer their questions. We have moved into an online system that is available for them to use. It has also been proposed to the Secretary of State's Office that they could share our online system. We spent close to $20,000 to build it. We just wanna share maintenance costs going forward, but it's there, it's easy to use. We've been hoping for a few years that they would join us in that, but they haven't made the decision to move forward with that just yet. Sorry, I'm losing my train of thought. I just got off a thirty six hour flight. Please forgive me for that. But I think we're here today to try and find a solution. So from our perspective, in order to take on this work, we really do need more staffing. We're like the most under With the ethics commission in the country that has the least amount of staffing, we have the same amount of staffing as we did when the ethics commission Before the State Code of Ethics was adopted in 2022, every single year, we get more responsibilities. So getting new responsibilities this year when we have one part time executive director, one part time administrative assistant, even though it might seem like not that big of a deal, it really, really hurts us at a time when we already can't fulfill all of our duties because we are so understaffed. So my understanding is appropriations has put in one additional staff member for us with the idea that they'd be working on municipal ethics. I know that we're not necessarily going to get another person this year, even though we would like a second person this year, even though would like to request it. I would like to be under consideration that the position is at least created this year. This happened before the Ethics Commission, we had no administrative assistant, that position was created. It was put into a bill, it was funded later. But right now, we just don't have the staff to actually take on any more duties. And if we don't even have the vision of more staff coming, I just don't know what is gonna happen to us. The other compromise that we've put forward here, and I understand that I'm saying not this very clearly, please forgive me. I am really, really jet lagged and it has been a long, a long two days But of our the compromise that we have put forward is that in terms of who's posting the form, I'm not sure why it would need to change. It seems like it makes sense for it to continue being in the candidate filing package. When it comes to answering questions, we just create a joint FAQ. And the joint FAQ can be posted on both websites. It can be a living FAQ. So if there's questions that come in that are new, then we update it. If people have reviewed that form and they still have questions, then I think the question is who who are those questions going to go to? For us, staffing is an issue. For the Secretary of State's Office, I feel like they don't feel like they have the knowledge to do it. So hopefully, like we're here today to come to get some kind of resolution about how we can do that.

[Building Public Address System]: Lisa, we have your attention, please. This is a building evacuation. Got a hearing from all means