Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Judiciary committee this Wednesday afternoon, January 21, and we have an updated version of h five four one. And we're gonna get a walk through, but I just wanna make one comment about it first. So there provisions in here related to civil investigation, and that's all been taken out. We found out that there was similar language in the bill s 23 that passed from the senate over to the house. We amended it back to the senate. That language has been hanging out there. Also, that same language has been around since at least 2017 without any major problems. Having said that, I know that the secretary of state and the attorney general's office wants to redo that language for title 17 entirely as opposed to having civil investigation language in three different at least three different places. They wanna kinda consolidate and deal with some transparency issues that may happen in this bill, but I I will have a short form bill to try to keep a vehicle for that. So that's been taken out, and we just have the language related to the voter intimidation. So with that, I will have Tim walk us through that component of the amendment. Thank you very much

[Tim Depp (Legislative Counsel)]: for having Chair members, for the record, my name is Tim Depp of Legislative Counsel. Before you have a committee amendment. Sorry. And this is a committee amendment to modify house bill number five forty one. It is formatted as a strike all, so it should look relatively similar to the last one except that is the bill is introduced. However, as Chittenden just noted, section three has been removed entirely. And let's see. So you'll find material changes really in section two. And just to kind of reorient to us, section one again is kind of removing half the language from 17 PSA nineteen seventy two, which would then become kind of redundant with the language introduced in section two here. So turning to section two, and now we're at the top of page two of the amendment. We well, it seems like it looks pretty similar except for it's been somewhat inverted formatically. So we have first the prohibition on conduct and then in subsection a. Now subsection b just simply states the penalty that it hurts the penalties. Front load before, and now it's gonna hopefully, this will read a little bit better. Also, it changed. You'll notice and let me actually just kinda read through this, and then I'll kinda keep comments on exactly what's been changing. So the to be added 17 VSA 1975 titled interference with voters and election officials shall read subsection a. No person shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of, a, obstructing the right of the other person to vote or to vote as the other person may choose, or, b, causing the other person to vote for or not to vote for any candidate for public office at any election, or two, a public servant, an election official, or a public employee for the purpose of obstructing the administration of an election. So we'll kinda start off at the bottom there. Before we had language having to do with the interfering of either somebody's rights or the operations of elections, that has been swapped out for the term obstructing. And then where we had operations and let's see. Exact terminology was preparation or operation election has been substituted for the administration of an election. And both terms are can generally be described as better fitting terms of art that courts fit on more often views. And so more often to be recognized and carry with them some sort of common law interpretation that can be brought to the table, one of those phrases. The other just gonna check right here. But yes. The other thing I want to note in that subdivision two there now says a public servant election official or a public employee. Before, it had candidate for public office on that list. That candidate has been removed from that section right there and really was it's the reference candidate hasn't been pulled out throughout its statute. You'll still see it in the sentence above that there. And, really, Subdivision 2 was speaking to again, it's been a operation of elections. Candidates don't have anything to do with that. They can leave there. But interfering with somebody's ability to run for office, that is be a candidate, is still a part of this, just limited to the first part in Subdivision A. So any questions about what's changed so far? Yeah. Yeah.

[Ian Goodnow (Member)]: Thanks so much for the walkthrough on the second drafts. One thing that just occurred to me as I was listening to you, in Brattleboro, we have a very contentious vote during town meeting on our charter. There are two ballot initiatives that are there's a lot of buzz around them right now. If someone were to try to coerce or intimidate someone to vote one way or another on one of those ballot initiatives, would that be captured in this?

[Tim Depp (Legislative Counsel)]: Yes, it would. So we turned it A1A. It could be, depending on the nature of the conduct, could shake out a few different ways, but I'm presuming that the origin would be an attempt to obstruct somebody from voting in general. So that'd be checking the right of the other person to vote or to vote as the other person may choose. That would capture, I would imagine. Or yeah. And then it'd be sort of a candidate language there. So

[Ian Goodnow (Member)]: Yeah. I guess that was one thing I was wondering was it wouldn't be captured in repeat because it but it's

[Tim Depp (Legislative Counsel)]: Sure. Yes. This wouldn't necessarily eliminate an application to elections concerning candidates. It would also capture public questions. We could yeah. Election.

[Ian Goodnow (Member)]: Okay. So it would it would capture under a, and b would only apply if there it was national candidate for office.

[Martin LaLonde (Chair)]: Okay.

[Angela Arsenault (Member)]: Good. Yeah. Other questions for Tim on the language? Yeah. Angela.

[Martin LaLonde (Chair)]: I think, Tim, you said that the part that's removed about the and the bill is introduced, it says, you know, threatened or a candidate for public office, and then all the others that are still in too. You said that candidate is still captured in

[Tim Depp (Legislative Counsel)]: Sorry. Yes. It's not as explicit. It can be made so that, you know, that could be added as a one c if the committee wants to really kinda make sure that's explicit. It would be let's see. There's already a specific provision for candidates in the criminal threatening law. Okay. And it's one of those subdivisions that's the kind of enhancement for it, as well as for other election officials too. To the degree that overlaps here are not I'll kind of there are my judgment on that and kind of

[Angela Arsenault (Member)]: look

[Tim Depp (Legislative Counsel)]: at that for the committee's consideration. But, yes, I should probably better say that. Yeah. Well well, I mean,

[Martin LaLonde (Chair)]: I think I think the key here is what we're trying to protect is is we're protecting against the obstruction of the administration of an election, and that's not a candidate. Right.

[Tim Depp (Legislative Counsel)]: That would be

[Martin LaLonde (Chair)]: a public servant or election official, public employee. So this is specifically tied to that action. The threatening statute, I think, broader and covers candidates as well as public servants and kind of broader. But we're really targeting this towards voting activity. Yeah. So that's why they're

[Angela Arsenault (Member)]: That's why Canada is lifted out and but still covered the threatening of Canada, prohibited through criminal threatening. Correct. Yeah. Okay. Thank you.

[Tim Depp (Legislative Counsel)]: Thank you for that clarification. Yeah. No problem. Other questions on

[Martin LaLonde (Chair)]: not seeing any. We'll go to Falco. Thank you for being able to shift quickly from one issue that you are leading out there to this one. So thank you for being here, Falco. If could identify yourself on the record and proceed, thanks again for being able to weigh in on this bill.

[Falko Schilling (ACLU of Vermont Advocacy Director)]: Yeah. Happy to do it. For the record, my name is Falko Schuling. I'm the advocacy director for the American Civil Liberties Union of Vermont. This is the first time we've gotten the opportunity to testify in front of this committee this session. So happy to speak with you about bill h five forty one. And I think I should start off by saying that we fully support and understand the intent behind this bill. There are real concerns about people having access to the ballot box and activities which will disrupt elections and people's ability to fairly and freely exercise their vote, which is one of the the cornerstones of our democracy, and our democracy will not function without it. You know, that being said, I wanna raise some concerns around the breadth of the language found in this bill, which I think echoes some of the concerns that you might have heard from other folks around this, specifically that when you look at section two, the language saying no person shall intimidate, threaten, coerce, or intend to intimidate, threaten, or coerce, that that as written could capture constitutionally protected activities. It quite broad at this point in time. And not all threats are threats that can be regulated by the government. There is a thing called the true threat doctrine, and then there's other whole bodies of law around what level of threat rises to the point where the government can regulate that speech. And this is really important because we need to protect speech that is unpopular and speech that we do not like. Because as we get potentially overbroaden our regulation of these aspects, they can be used by folks on whatever side of the political spectrum to try and stifle speech, and especially when it is speech happening in or around elections. That is something that we get very concerned about when there's government, you know, trying to stifle that speech. And I think specifically around something like intimidation. Intimidation can very much be in the eye of the beholder. And similar to threatening, what constitutes a threat which can be regulated. And I know you've heard from other folks that we do have currently a criminal threatening statute. And I would look to some of the standards within that statute if we're trying to regulate threats in this area. And I have to go through my papers quickly, but that speaks about a threat that places another person in a reasonable apprehension of death, serious bodily injury, or sexual assault. I also know that this doesn't have a reasonable person standard in it, which would be something that we would like to see to strengthen it. But I think, as you've heard from other folks, I think we need to get be a little bit more focused on what exactly what activity and what level of threat would rise to the point where it could be, something the government is regulating. So I think that's kind of our higher level concern about this bill as we look at this is that we need some more language, to make it clear what threats and intimidation would be able to be regulated under this bill so that we don't see overzealous prosecution or folks getting brought in for what should be constitutionally protected speech. And then also point to the fact that we have existing statutes on the book, which I think would cover most of this behavior, including our criminal threatening statute and our disorderly conduct statute, which is also quite broad and captures many of these activities. And I just, you know, to be consistent, you've heard me on the stand multiple times talking about the fact that that increased criminal penalties does not generally work as a deterrent for future crimes. And so that's something I will share again today is that if the idea is that by increasing the current penalties for these activities that might deter them, that's generally not we see. We see that swift action and accountability is more of a deterrent than a harsher penalty. So I'll put that out there. But generally, I support the intent behind the bill, but have some concerns that the language as written is overly broad at this point and could capture constitutionally protected

[Angela Arsenault (Member)]: activities. Okay.

[Ian Goodnow (Member)]: Question here. Thank you very much. And yeah, I think you definitely speak to the concerns that we've heard. I'm hoping that we can find our way through this forest, but that was I think my understanding is just and I'm curious your thoughts that the intent behind this bill is that we're not trying to strengthen criminal penalties, but that there actually isn't at the moment a criminal penalty that exists on a state level for state elections. That kind of is beyond just what's in the criminal threatening statute.

[Falko Schilling (ACLU of Vermont Advocacy Director)]: Yeah. I I can't speak to specific instances that are not covered, you know, that if that's needed. I think it's something that we're happy to be in further conversation about. Also, I know that in talking to some of my national colleagues who flagged this for me as well as we were looking at this, there's some other language in other states that they've been considering. I think New York State Voter Rights Act has some more specific language around intent and impact on a reasonable person in terms of those standards that we could look to as well. So I'd be happy to share that with the committee. But if there are specific instances that are not covered under disorderly conduct or criminal threatening, I will say in the eyes of the ACLU, our disorderly conduct statute is already overly broad and captures constitutionally protected activity, which is why we've something that we have raised concern about in the past. So I think that captures quite a bit, tumultuous behavior is a pretty broad category of behavior. But if there's specific instances, I can understand the need to try and address those that might fall in the gap between the Venn diagram of those existing statutes.

[Martin LaLonde (Chair)]: Right. So it's just that I'm trying to find where I understand the truth threat concept, and we haven't written into our threatening statute. But just looking at some information from some other cases that First Amendment criminal commissions and civil enforcement actions have upheld been upheld against the First Amendment challenges where intimidating robocall messages, for example, threatened people with tax audits or immigration consequences or eviction or even mandatory vaccination, apparently, some verbal calls that if they tried to exercise their right to vote, it's like where none of those seem to be serious bodily injury or threat of death. And I'm trying to understand, because there seems to be more things that could be intimidation that are short of that true threat.

[Falko Schilling (ACLU of Vermont Advocacy Director)]: Yeah, so there has been jurisprudence that has expanded beyond the truth that I've talked to, and especially when it comes to elections. So I'm going to read quickly from this from the Institute for Constitutionality and Protection from Georgetown Law School.

[Martin LaLonde (Chair)]: Yeah, there

[Falko Schilling (ACLU of Vermont Advocacy Director)]: you go. The context of voter so it says in the context of voter intimidation, threats to deprive voters of something they already have, such as jobs, government benefits, or in extreme cases, their personal safety may be subject to prosecution or voter intimidation. So I think it can go beyond just true threats of physical violence, but that's something helpful to enunciate in the bill beyond just intimidation because that's quite broad. And have you share some other language with some other states that have tried to get at some

[Tim Depp (Legislative Counsel)]: of that.

[Martin LaLonde (Chair)]: Yeah, no, that would be great if you have that opinion. Right

[Ian Goodnow (Member)]: now, if that were done on a state election, I guess my understanding is there really isn't a crime that we could because of what's put in the criminal threatening statute on

[Martin LaLonde (Chair)]: the It wouldn't cover it at all. So yeah, there's different kinds of intimidation that are not protected free speech, which is an argument. So okay. Alright. I

[Falko Schilling (ACLU of Vermont Advocacy Director)]: will say that under disorderly conduct, if you intend to cause public inconvenience through threatening behavior, that is cover.

[Martin LaLonde (Chair)]: Right. Is And that's threatening behavior. Would look immediately to the true threat doctrine in that situation as well. So, okay. Other questions for Falko on that? So, yeah, if you have some of that language, we do have ACLU is one of our experts, and we also have lot of in, President Small coming in a little bit later. Hopefully, he'll be here a little bit earlier. So, all right, appreciate that. Thank you so much.

[Tim Depp (Legislative Counsel)]: Anything else with that,

[Martin LaLonde (Chair)]: Thank you so much. And if you can send me that citation, that

[Falko Schilling (ACLU of Vermont Advocacy Director)]: would very helpful.

[Angela Arsenault (Member)]: Happy to do that too. So

[Tim Depp (Legislative Counsel)]: we

[Martin LaLonde (Chair)]: will go off live