Vermont Legislature SmartTranscripts:

[Nader Hashim (Chair)]: We are live. Good morning. We're back in Senate Judiciary on March 11. We have s two ninety eight in front of us. We don't have it in our possessions, but this I would ask to take a look at it for our committee to take a look at it because there are some criminal offense offenses in it as well as some private right of action provisions and we just wanted to take a look and make sure there's nothing that's changed necessarily. We have the Legion Council be with us and the floor is yours.

[Tim (Legislative Counsel)]: You very much for your honor, Chair. And for the record, my name is the same today with Legislative Council. So indeed, you have before you strike all amended to February as a court of the Senate Clause Committee. This is an accolade to create the Vermont Political Rights Act. And let's see there are four criminal sanctions in the European Union on page three. It is where we have them housed in 17 VSA Chapter 35. Seventeen is the time where we have what they're watching on. And 35 is where we have existing offenses against the purity of election. Some of those are criminal and existing law. Maybe two or three of those kind of 10 or 15 of them I think, and right now the current law primarily is warranted towards election officials as well as voters and voter fraud. This will be introducing the idea of third party interaction, although it certainly will also suit the conduct of several elected officials and some folks who stay for hours and safety. In order to orient, we'll turn to page four of the bill, as we begin to learn as it would, to be added first events in the section nineteen thirty four, interference with voting. And the Election officer or a person acting under colonial law shall not perpetually. One, refuse to permit or fail to permit a qualified voter or vote. Two, refuse or fail to tabulate, count, or report the vote of a qualified voter. It's pretty change a ballot on a voter to prevent the voter from voting as the voter desires. And then we have the proposed here, and this is contains one type of that. Notice any issues. Correct? So B1 states a person who violates subdivision on an SSA1 or A2 shall be subject to a civil penalty of not more than $1,000 for each affected voter. (two) states a person who violates a subdivision should be as A3 strike the A four or other section that is election officer who changes the ballot. They shall be imprisoned not more than six months or find out more than $1,000 or both, affected the voter. And then C, this section applies to any election and to any method used by a political party for selection of its nominees and or selection of delegates in those dimensions and. So

[Nader Hashim (Chair)]: Sorry. B two also civil? No.

[Tim (Legislative Counsel)]: Once we What is then? Jail time. Will automatically be done. So yes, conducts described in A1-two shall be civil penalties, then A3 will be criminal. Yes, line four. Yes. Can you give me the bill's definition of a qualified voter? Qualified voter will be detailed elsewhere in Title 17. So typically, just off the top of my head, qualified voter will be somebody who is registered, who then looking into requirements for registration would have to be considered state constitutional issues of age of residency and of citizenship. Or if the excluding all the electives excluding the few localities where we non citizen voting? That was my next question. Okay, so how does this protect those? Yep, in those municipalities where there is assisted voting, it would certainly apply to them. As you can see, we've had a small bite to see here, which is basically any elections. And so if, you know they have the separate checklist person who was qualified non citizen voter I mean they would still still be qualified to vote for certain elections just not all elections so they would these kind of sanctioned sanctioned conduct would apply to vote in those only the extent for, you know, they can air ball by the boat and those ones with the others. So I can make circular there. So have you unpack after that? Well, there's gonna one of the sections that pertain to us, obviously. The bill, what happened to read is obviously, in fact Yes. There's a little section of the flag laws that's gonna be. Senator Erth, this is jumping ahead, but the civil cause of action, can you just outline what committee's thinking is about need for that? Sure. I can't really speak to intent necessarily if I can describe the mechanism and perhaps effects. So essentially we have a huge number of mechanisms of enforcement, criminal, I'm sure everybody here is aware that will be enforced by either the states attorney or a states attorney general's office. This allows a third avenue of enforcement and civil context to be provided by basically any voter who would disagree with their There's two parts of civil, two statutes. They had to maintain a civil cause of action. One is twenty twenty three, so intimidation of voters. So if somebody is intimidated for a waiver now, they can go to court and seek redress or really, I should say, address in the form of injunction or restraining order or any other order against intimidating person, preventing those exercise neglected both. Can I ask, prior to this going into effect, could they not launch a civil duty ban? Let's see. It may depend on the election. So we have certainty Well, I shouldn't say It on the It will depend on the nature of the intimidation. If it is criminal, like criminal branding or something like that, there's already provisions under state statute for police prosecutors to get involved there. If it's something more based on civil rights, a federal context, federal elections, There are certain increases and protections under various aspects of federal law, think some parts of the federal and national voting rights act. There, if it's I guess where I'm going with this is I'm wondering It seemed like whoever called for the draft of the bill believes that there's an area not being covered that could be covered through these civil suits. But as always, you're trying to game out what the potential for use of private rights of action would be. And the language is really broad when it comes to applies to any election and to any method used by selection first time. I'm thinking, really, in other states, I haven't read about so much here, but you have nominating caucuses that devolve into chaos and people are punching each other and over the last ten years this has been kind of common around the country and I'm wondering in that context if we provide a civil right of action if we don't get a flurry of lawsuits, people suing and countersuing each other. And I can say that the private right back is limited to just two contexts. So one, whether it's intimidation of voters, not interference of voters, although if intimidation needs interference with voters, it's somewhat over the line there. It doesn't say, well, what would be communication of false information with voters? I guess the opinion of intimidation would be slight, you know, in any event, we're just doing a drive by for the people on the street. That's right. So So but that's a question that I have about this is maybe it's from the drafter or the sponsor. Why this one's not specific? Or you're on the Is it your bill? I mean, I'm a

[Philip Baruth (Member)]: co sponsor on the bill. It's not my bill. It's Senator White. That was the original draft, although it's gone through quite a few changes since originally introduced.

[Tim (Legislative Counsel)]: It was introduced by Senator Robert and Senator.

[Philip Baruth (Member)]: Oh, okay.

[Tim (Legislative Counsel)]: And then the amendment is public history.

[Philip Baruth (Member)]: And I think some of the concern is that right now the federal voting rate that gives some of this right to civil action is in jeopardy of being overturned. And so a lot of this was really meant to codify sort of current practice under the Federal Voting Rights Act in New Orleans state law to provide those same protections that currently exist, may not. Right. And so that was really the sort of images of this, but again, it's gotten pared down with what things have been brought into the future to introduce the state.

[Tim (Legislative Counsel)]: Is that a loss? Yes. It appears as though there's no description in this where it says person who violates this subsection shall not may, but shall be, the same one on the Line 11. And my question is as far as the civil ordinances. What's the enforcement mechanism? Right, and which section are you referring to, sorry, Senator? We're on page four. Page four, okay. Lines nine. Yes. And then again on lines 11. Okay. There's it says shall, there's no discretion there whatsoever. And if there is no discretion, on the civil portion, who is the enforcement, what's the enforcement mechanism? Sure, so speaking to the shell, I ran this by judiciary team and it wasn't flagged as really any concern about undermining prosecutorial discretion or if I can. Turning to the, you know, the that, sorry, was the question, who's enforcing the civil aspect or is there a private cause of action that fits? We have the polling police here, the one enforcing the civil. Who's enforcing this test? Right. So, like any other crime, would a credit on, presume, police investigation. Perhaps I think the office could investigate independently for this civil aspect, fact that you're the person. Phish prior to this gets into a different type of civil action that the Church General has done. I read together with that. But as far as exactly implementation of our ground, I would probably defer to the receipts of Turkey or the Chinese general's office that's saying exactly how the circumstances improve their mission statement. I guess the first thing that I see of some other investigation on the criminal aspect of this, not the scope of the law enforcement. Anyways, that being said, thank you.

[Nader Hashim (Chair)]: Any other questions or did you want to carry on? Sure.

[Tim (Legislative Counsel)]: So next we have the intimidation of election officers. So the bottom of page four, going to page five, a person shown down intentionally by bribery, intimidation, threats, coercion, or other means in violation of intellectual law, tender or prevent or indempt to hinder or prevent an election officer in holding place or convolving an election. The person who violates the statute shall be a person not more than two years and find not one is

[Nader Hashim (Chair)]: a So yes.

[Tim (Legislative Counsel)]: Violence Go in for any preference. Okay. Moving on to the next offense in 2023, intimidation of voter and something called civil cost of action. So a person shall not intentionally intimidate, threaten, or coerce or intentionally attempt to eliminate, threaten, or coerce: one, any other person who can any person to a vote ballot two, a voter shall intimidate a voter to deter or prevent the voter from voting at all B, a person who violates the section shall be imprinted now or that a two year olds will find out a 1,002 thousand dollars penalty. Now we move on to the second. Secondary Maggie.

[Nader Hashim (Chair)]: Sorry, Senator Mattos. Is this, so I'm thinking about, you know, election day and it normally stand out in front of the polling place. And I know, you know, voters talk to other, but trying to make a conversation. Was there any talking committee about that intimidating voters? Because I do hear from folks like, I hate walking up and having all those people standing there, it makes me feel weird walking through all Is the that an area where that person could then feel intimidated?

[Tim (Legislative Counsel)]: This will be, it will require more than this will be underpinned by the Truth Stress Doctrine, I'm sure somebody might probably come through here and say, but just to kind of reiterate, it's always in a Supreme Court case called Federal Court in which explored this idea of, you know, how threatening this conduct actually had to be before it's boosts its First Amendment protections. So as a starting place, First Amendment will protect your rights to your speech, in the context of political speech. There's actually overriding it's the president regulates that. But not all speech is protected. So we have things like defamation, fraud, obscenity, and truth threats. It's not one of those categories. And in essence, kind of pull from the case here. Some of the useful definition that true threats are serious expressions conveying to the speaker. Sorry. They that a speaker needs to commit an act above all violence. The existence a threat depends not only on the mental state of father, but on statements. That's what the statement conveys to the person on the other end. When the statement is understood as a true threat, all harms that have long range threats can't eventually fall. And then it has to be taken also with circumvent spray here that's applied. And so here we have a potential the Cabin case had to put the constitutional standard at reckless mindset. What mindset does the perpetrator has to take into this for it to be considered not intended? We have the highest potential and purposefully than reckless. So the Supreme Court said, the last said breakfast, but here we're actually bill is setting it at the higher standards, so it has to be potential, which really means sometimes we use purposely interchangeably clear, but line that you sent in particular was the term potentially. Consciously desires a result is another way to think about that. So you have to consciously desire to intimidate people in a way where, you know, not just something that you should have known better or just didn't care for someone, but like I am setting up to intimidate people. So it does depend to some degree of what the recipient Some sort of weaving something that could be. But screaming about to 1¢ doesn't help. We're talking about insurance right here. Okay.

[Nader Hashim (Chair)]: So it sounds like it like you're in general based on just, you know, the normal standing there with

[Tim (Legislative Counsel)]: your sign, Hey, thanks for coming out. That kind stuff. Yeah. Being able Now turning to the civil order of action, parent's receipt. So on line 14, I addition to the criminal penalty provided in subsection of the sentence, such that he shall also agree in certain private cause of action. A voter who is intimidated and threatened by another person violating subsection a section shall be entitled to this attuned act or object to the plaintiff, including the application for a prohibit or temporary deduction or hearing for other orders of such a person. The action shall be initiated in the subdivision of foreign conspiracy in the which the alleged violation occurs, a court may, in its discretion, allow private life that the reasonable attorneys do as part of the cause of the lengthy of this prevailing party. And we have the section d here, no sense of loss. There's no compensatory and prohibitive damages here. Attorney's visa, injunctive relief. I would not say that other public law or statutory courts wouldn't be available if anybody's left. It's strictly supposed to. Moving on to 12.4, communication of false information to contact voters. A person shall not intentionally communicate to a registered voter false information. Directly information to be false for the purpose of impeding the voters in exercising the vote. Permissions in the section shall apply to information only about to date and or place in election. How to register to vote or any voters' registration status. So that second sentence very much more or less than the first. I should just note that there's misinformation on time, place, and the matter of election report, the mechanics of an election, misinformation about those items, non objectifications, similar case law on that too. It's pretty clear. Any person who violates the provisions of subsection of a section shall be imprisoned not more than six months or find out more than $1,000 or both. Violation a violation of the conspiracy of the superior court can either the county in which the in which the decision made or the county in which the communication is received. There's a difference here. This is not the plans about activity that's committee verbal c, in addition and here we have another right of action. In addition to the criminal penalty provided subsection b, the section violation of protections of the sexual assault and creates a right of action and a registered voter to whom such false information is being obtained shall be entitled to action for a theft's ability, including an application for a probate or temporary exemption, shrimp water, it's such an exception. Court dates, discretion allow, and any debt measures, so the same number of sacrifices. Do they not already have this ability or accept the conduct by this right of threat? Or communication of false information, and not being from St. Francis statute, which makes abusive election in some ways, Definitely. Ability to see brief rest of their objective. I don't think there is anything that I'm aware of.

[Nader Hashim (Chair)]: Any any last weapons? Any issues with the bill, anybody that you folks wanna hear from or suggest changes? If you don't have it in our possession, but is there anything that we wanna communicate to go up or are we fine with the language that I think the language regarding Michelle issue a violation, want to double check this with the judge counsel. Pretty sure that's the standard language that we use for any. Excuse me. For any violation. That you know you're going 90 miles an hour on the interstate to shallow. Get a citation for speeding. I believe that's the standard language there. Typically it would be law enforcement that issues the BCBC civil ticket for that aspect. But I don't have much that I can answer regarding those. If I ever break

[Tim (Legislative Counsel)]: it back, ask them. Yeah, I'm not even sure of using the BCBC versus the CBC. You've seen the speech on the body of Shell.

[Nader Hashim (Chair)]: Okay. Well, you want to follow-up there to clarify those questions?

[Tim (Legislative Counsel)]: And I just pulled up a criminal threatening 13 PSA seventeen oh two, similar language here, per student violates this subsection A shall be shall be addressed in phenomenal engineers refined by more than $1,000 Check through, but Yeah, I can double check that one example. Once again, criminal thrilling versus civil aspect. Oh, sorry. Yeah, I didn't appreciate that.

[Philip Baruth (Member)]: Does seem to be standard language. I also pulled up the chapter on assault, and it has the same the person who does this shall. I think it might just be the language we need as well.

[Tim (Legislative Counsel)]: Let's put the title. Super. That's

[Nader Hashim (Chair)]: the one that's Yeah.

[Philip Baruth (Member)]: And here's in the statute around the burning of a cross. Any person or persons found to have violated shall be subject to tips. I'm literally just picking random crimes.

[Tim (Legislative Counsel)]: So is burning of a cross a criminal or

[Philip Baruth (Member)]: is it a No, no, don't. Sorry, I jumped off. Burning on cross is well, burning on the cross with the intention of terrorizing or harassing a particular person or persons is critical. I think without that piece it might be a violation of the First Amendment.

[Tim (Legislative Counsel)]: So looking at other offenses against security of elections in Title 17, Chapter 35, And the worst ones of these are strictly civil and the length of strings there is shall we find that we want a $100 for her offense, see that's her signing up and receiving for your votes. For counting balance and opening mailboxes before proper time, about meeting is a shy of five at more than $200 or less than 20. It looks like it's similar for other civil violations here, but I can always go back to the charity team, You know, if there's anything else to be thinking about and something that might have

[Philip Baruth (Member)]: There is a civil liability with the discriminate in the cross so the Burning Man Cross is within the chapter on discrimination, and that does have a civil, like a private right of action like this does. And it reads exactly the same.

[Tim (Legislative Counsel)]: Didn't you say that the earlier statement this was already something that we we deal with. Was just court attempted to simply be modified.

[Philip Baruth (Member)]: So the Federal Voting Rights Act, as Tim testified, allows for some civil right of action if voting rights are violated. That is currently being challenged in the courts and maybe overturned. So this would be putting those similar protections into our Vermont law should that federal law be overturned. Was just looking through other statutes for other places where we use similar language. And in the discrimination chapter, there is a civil or a personal right of action that reads very similar. It doesn't really name who holds it who holds someone accountable. My guess would be the court. If the court said, yes, you're civil and liable for this, they would hold them accountable to it.

[Nader Hashim (Chair)]: So will it just be fair to say on the floor, the committee reviewed the bill. We don't have any proposed changes, but that's not to speak to individual Senate support or lack of support for specific sections.

[Tim (Legislative Counsel)]: That's fine, bud. Now getting

[Nader Hashim (Chair)]: the Senate generally is concerned with some aspects of the bill.

[Tim (Legislative Counsel)]: That's a great degree of

[Nader Hashim (Chair)]: the Department of So that's what I'll unless there are any other changes, I'll just present that on the past all the floor. Well said, thank you for coming in on BoardNotes.

[Tim (Legislative Counsel)]: You're welcome.