Vermont Legislature SmartTranscripts:

[Nader Hashim (Chair)]: We are live.

[Tim Devlin (Legislative Counsel)]: Hey good morning it's March 25.

[Nader Hashim (Chair)]: Have branch council here. We had previously talked about H541 I believe earlier this week. We talked about eight five forty one as well as s two ninety eight and we know there are bills with some similarities we just wanted to get more a deeper clarification as to the similarities and differences and see how we can go about harmonizing the two bills that way our committee is not duplicating redundant work with the House Judiciary Committee. So we have led counsel here to walk us through a side by side of two bills and then we'll figure it out from there. So floor is all yours.

[Tim Devlin (Legislative Counsel)]: Well thank you very much for having me committee members. For the record my name is Tim Devlin Legislative Counsel. I apologize if I sound a little muffled today. I have a cough and stuff like that, I ask you to try make a sick. So please ask me to speak up. And if you think I can get I'm having trouble beating people's eyes too because of my glasses. So just feel free to ask for my attention if I'm looking elsewhere. So, yes, I have provided the committee with a few different materials. The United has passed by House Bill five forty one, and he has passed by Senate s two ninety eight. That's the Vermont Women's Rights Act. And then also a side by side comparing the relevant portions of each, that is in regard to interference with voters and election officials. And so I have kind of put laid out some introductory things, just kind of saying in brief what the real major successes are. And then this was kind of fun. I think it brought me back to law school. Thought it would be somewhat fusible, you just kind of break down the various elements of the age criminal statute to help digest care. I've color coded the person committing the conduct, the person affected by the conduct, the conduct that's prohibited, the mental state of an enzra, the penalties, and where there's some private right of actions. So just generally comparing the two. Let's see. First noticeable is we have this H541 amends existing law. That is where we have 17 BSA, 1972, and this is under 17, where we have Election Law, Chapter 35, theft is against purity of elections. And you may recall that nineteen seventy two is kind of a sandwiching of two different principles. We have the showing your ballot which is prohibited, and again this is for reasons of some ostensibly trying to stop buying votes. And then we have a kind of tail end there that in H541 is struck through and that has to do with some general interference. And that would be a person who interferes with a voter, one inside the guardrail, or who, when within the building in which the voting is proceeding, endeavors to induce a voter for a particular candidate. So it's inducing, really. And it has been struck because it's kind of confusing when read with the children ballot provision, which is one long run on sentence, and it's made redundant by the other to be introduced statute here in May, that is they have an appearance with voters and election officials, where we do have some inducing language and then some veranda for admissions on other types of election interference or interference with voters or elected officials. Other things we have here and sorry, drawing in comparison with WHO, I should say that the private right of action is in S-two 98 does not appear in H-five 41. The penalties are largely the same and that is you shall be in prison for not more than two years if not applied more than $2,000 in total and except for in 1934, employee grant act, where we have a sub revision regarding interference with voting where violently being imprisoned up more than six months or a fine amount of more than $1,000 under teacher faculty voting. The, let's see, and then I should also point out that two provisions in the Senate bill, that is nineteen thirty four and twenty twenty three, will include language explicitly applying those prohibitions of conduct to elections in caucuses, where the caucus question is silent in the language of silence in the House bill. So those are the broad terms. So we're going have the side by side. We'll kind of first examine the language of the house bill that is nineteen seventy five. This will be on page two the side by side, left column, middle row. And I think you'll just read through that and then I'll just kind of return to the language and metaphorian for it similar to the provisions of the Senate bill. So again, nineteen seventy five reads Interference with voters and election officials. No person shall eventually or recklessly intimidate a threatened course or attempt to intimidate a threatened course any other person for the purpose of A, obstructing the right of the other person to vote or condolences the other person may change, or B, causing the other person to vote for or not to vote for any candidate for public office or public question at the election. Or two, and again, no person to judge anybody about this thing. So an eighth reckoning of course or attempt to do so, a public servant, an election official, or public employee for the purpose of obstructing the administration of an election. In general, we have a penalty. A person can violate subsection, pay the section, so they have completely not more than two years of signing up more than $2,000 in voting. So let's take that again to the topic of the annotation below. So no person shall intentionally or recklessly. We have two different mental states. We have intentionally or recklessly in the House bill. In the Senate bill, you'll see the blue text as it appears on the other pages, which shall be intentionally. Gold mills have the highest level of benzoyl and the house mills that provides an option. Can be the highest originals would be Schleppos, which is the third of the if we're going to rank all four, that's the third. So, also we have, let's see, no personal child infinity or recklessly intimidating, intentionally recklessly intimidating, threatening, coerce. We see this language in 2023 of the Senate bill as intimidation of voters to oppose for actions. So there we have, on page three, right in the day there, the purple that says, Intimidate is threatening court, or potentially intense, is to intimidate threatened or courts. So that does appear in both bills. Then we move, going back to the House bill, 1975, we go to let's see, he's paying one, any other person. So here again, in 1975, we have basically threats against or obstruction of persons voting, and then one, and then two, we have public servants, servants, election officials, or public employees. Voters versus election adventurers, essentially. And so we have under definition of voters, it's a different type A, we have obstructing the right of other persons to vote or vote as such a person should choose, or it's B, causing the other person to vote for or not to vote for any candidate for public office, and what the question is, So the instruction in A1A there in 1975, that is basically redundant or repeated through the various four offenses we have in the Senate bills. I would just say the Senate bill are more specific examples of what I'm struggling than B. That's probably a useful way to think about it. And then B, the causing the other person to vote for or not to vote for any candidate in public or office, a public question, that ended up with nineteen thirty four right next to it. Can you back

[Nader Hashim (Chair)]: up one second. A1A is redundant with which?

[Tim Devlin (Legislative Counsel)]: I would say that obstruction is a broad term that would coincide a bunch of the activity into the VRA offenses. And the Senate bill, the VRA offenses, are all examples of obstruction and provide specificity to what obstruction is without using the authority. So whether that be permitting to or failing to permit stopping a ceasefire. Criminal permit a qualified voter to vote at the appointment of instructions. Theusal to fail or tabulate an account for a vote to report the vote of that qualified voter that would be obstruction as well it's nineteen thirty four. Let's see if you're intimidating an election officer that would be oh, we have that later on down at eight two down below. But you have, let's see, intimidation of voters. If you are intimidating any other person in giving a person to go over ballot, that would be obstruction. Let's see this is your point.

[Nader Hashim (Chair)]: So it's kind of bifurcated between 2022 and 2023. So instead of having one section where we say, No person shall intentionally, let's just say, threaten any other person, wherever it's separating it into two categories for election officers, and that the second category for voters, right? Or any other person it looks like.

[Tim Devlin (Legislative Counsel)]: Right, so we have that in 1975 and we're talking about obstructing voters and obstructing administrators, sorry, election administrators, obstruction is a generalized term, which I think could apply to much of the conduct, or pretty much all of the conduct, as described in the Senate bills. The Senate bill is just more specific than the term obstruct, I would say, drills down into what obstructing can be. It is more or less enumerating civic heights of obstruction there. And Yeah, so I would say House Bill has a generalized term where the Senate Bill has more specific instances. For example, some obstruction. And so they will all cover largely the same amount. We

[Nader Hashim (Chair)]: also have the higher meant rate of intentionally compared to the recklessly.

[Tim Devlin (Legislative Counsel)]: Yes, in the House Bill, there's a prosecutor that had the option to either, let's see, having to show that the, essentially, threat and obstruction against voters or election administrations was intentional or recklessly. Versus the Senate bill has to say each one of the other offenses. The various types of extradition would have to be shown that those were intentionally committed versus just recklessly.

[Robert Norris (Vice Chair)]: Senator Zola? Can you give me the example of a reckless threat versus an intentional threat? I think they do some of the court language on what those meanings.

[Tim Devlin (Legislative Counsel)]: Brainstorms of examples. When we have, let's see, intentionally or purposefully, I'll say you went over here at that point, an an individual consciously desires the results. Think about it going down the med spirit ladder. We have knowledgeable or knowledge, and that is where they are aware that a result is practically certain to fall out recklessly. That is consciously disregarding a substantial and unjustifiable risk that the conduct will cause harm to another. In the threats context, it means that a sneaker is aware that others could regard it as safe and as threatening violence and delivers them anyways. Then we have negligence, which is not aware of the risk of one should have been aware of the risk. So Okay. Court language actually sort

[Robert Norris (Vice Chair)]: of helps me clear up. I was, I think, thinking much more of a dictionary definition of having a hard time understanding how one could make a threat in a reckless way without intent. Got it. So that was helpful.

[Tim Devlin (Legislative Counsel)]: So, let's see. Then we have, in 1975, looking through this language again, okay, we have day one b, causing the other person to vote for or not to vote for any candidate, republican office, or a question of the election. That will be similar to 1934, right next to '80s, where we have something changing a ballot should be redundant with that language. And then we move on to the public threats against public servants, election officials, or public employee, that is elections administrator. That is similar to language in 2022. So that is at the bottom of page two on the right there. And that has to do with intimidation of election officers. So would it be helpful to go through the four different voter intimidation provisions in the Senate bill or as as we redrew those back into the House bill or would it be?

[Nader Hashim (Chair)]: Think so far the picture's been painted. It has been much more clarified for me, but committee, what do you prefer? Do I continue with the Senate language or is this explanation to clarify things a bit more?

[Robert Norris (Vice Chair)]: It's as clarified things for me.

[Tim Devlin (Legislative Counsel)]: I do have a couple questions on this, sir. So under the health, for income, on page two, in the, two, for public servant, an election official or public employee. I'm not quite sure what the definitions of those might be. We have some election officials defined as title 13. I think public employee would be sorry, I should say public servant, generally speaking, will include individuals who are appointed or elected not necessarily higher public employees would be people who are indeed higher and then an election official could be people who are drafted to be working the polls So under public employee, would a federal agent fall into that category? Well, that's an interesting question. It's Yes, I suppose they would be. Yet this bill does not specify what level of government. And so it would be threaded out of the problem. Then if I may have to get under the Senate version on page two, nineteen thirty four, an election officer or a person acting under the color of the law? Yes. Acting under the color of the law is a legal term of art, essentially provides for, again, those election officials who are not necessarily public officials all year round but are drafted or volunteered to work at the polls and therefore would be representing the government. So when we say packing under the summer of law, that is you are adopting an official capacity on behalf of the government and to, in this context, everything from check voter rolls and intake voters to assist with any questions, process ballots, transport ballots, maintain chain of custody, participation in candidacy, other official responsibilities of the municipality and state ought to apply it. Would that also include individuals who were hired on a full time basis? Yes. Assuming they are yes, yes it was. Am I to understand that under 1934 that we have both a civil penalty and a criminal penalty depending on which alleged violation takes place under B1 and under B2? Yes, that's correct. So a civil penalty for any person who violates A1 or two, so that is the election officer or person acting under federal law who intentionally refuse to permit or to penal to permit the qualified voters voting for refusing or failing to tabulate, count, or report the vote to qualified voters. That would be civil, turning to what is there's a typo here because there is no before. Returning to the criminal aspect, persons who violate subdivision A3, no A four again, under PECCO, sorry, of this section. A3 is changing a ballot of a voter to prevent the voter from voting as they desire that will be met with criminal penalty of six months by imprisonment of six months not more than six months or filing out more than $1,000 full for each affected voter And my last question today is, where it says private right of action, does that include both the civil aspect and the criminal aspect, and by the way, they're following the private right of action? No, a civil private right of action would be civil only. Civil only, so if they're arrested under the criminal portion under private right of action, don't come into play? Correct. The, where we have the civil cause of action, it occurs in 2023, and this is the great text reference, and then also 2024. And so let's see what we have in In addition to the criminal penalty, it provides the obsession of incitement of 20.3 in combination of voters. Such action shall also create a private cause of action, voter from risk simply affected by this, shall we have the institute enact a certain injunctive limit. That is to stop the conduct of exercise, training, every restraining order, something of that nature. And then we described where the private right of action is one, is an equity action, not really civil, so you're not really seeking money for redress, and you're certainly not seeking criminal imprisonment, just an injunctive police to stop her intimidation is current. And then, I assume these civil actions have been just imprisoned in the form of information, identical language, But it would just be injunctive relief plus action equity to prevent or to stop the communication of false information for multiple voters. But again, no monetary remedy or civil remedy that the private individual would pay or seek. Thank you.

[Nader Hashim (Chair)]: Just wanted to clarify something, might have misheard or misunderstood the It's not an eitheror situation for the criminal or the civil penalty. You know what I'm saying? In addition to the criminal penalty, right? So somebody could be charged criminally and then the plaintiff could do a private right of action.

[Tim Devlin (Legislative Counsel)]: Yes, so private rights of action are in addition to criminal penalty. So let's see, twenty twenty three division of voters, there is no civil penalty, it's just criminal penalty, but in addition to that, there is the injunctive lead brought by a person. And then we have let's see. In 2024, the entity under is the remedies or penalties section, we have the criminal aspect, and then we have, in addition to the criminal penalty provided in sub b, the private right of action. And, yes, I think I know we're here. I'm thinking here of, okay. Well, you could be lobbying just the the client alone and not be basically prison. It would still be, you know, descriptive monetary, criminal penalty versus a subpoena. Sanction. But if there's any questions about that, I'll check with my colleagues at the future.

[Nader Hashim (Chair)]: Maybe what are your thoughts on how we harmonize? He's he's nice here.

[Tim Devlin (Legislative Counsel)]: I can start.

[Nader Hashim (Chair)]: I think it may be best that I'm happy to or I'm open to be persuaded otherwise. Think that Senate bill in terms of the potential violations that we have described in 1934, 2022, 2023, 2024, they go into a lot more detail and they have the higher bens rate. And I think that is the because we're potentially treading into first amendment issues we want to be we want to have that hierarchy right up and we also want to be a lot more specific and that's also balanced by the fact that we have the private right of action for two of them. So I think Oh, I just want to

[Tim Devlin (Legislative Counsel)]: make a quick note starting to break your stride. No. But the men's brand recklessly was the floor of acceptable men's brand that was approved by the US Supreme Court in Canada, Mississippi, Colorado of 2023. So when it comes to criminal threatening, part and parcel of, the mens rea, the least that you have to afford would be recklessly in terms of the law of contraception.

[Nader Hashim (Chair)]: What was that case name again?

[Tim Devlin (Legislative Counsel)]: Of course. It's, Calvertman v. Colorado, and that's 600 US 66. That's from 2023. It's a pretty fun read, I think, by the time. Well,

[Nader Hashim (Chair)]: my my initial thought is recommending, to the house as they start taking this up is to copy their language from the first nineteen seventy two secondtion, copy it onto the bill that we sent them as February, And then presumably they'll make whatever changes they want to make to the other sections. That's the first approach that we could potentially take, but

[Tim Devlin (Legislative Counsel)]: open to hearing different ideas or suggestions.

[Robert Norris (Vice Chair)]: So, if I'm being clear with your suggestion, is that we don't take out a five forty one and we let them pull what they want in February and deal with it that way? Yeah,

[Nader Hashim (Chair)]: more or less. Okay. We're fine with that.

[Robert Norris (Vice Chair)]: Even though we have established we have no control over the House.

[Nader Hashim (Chair)]: Indeed. We have no control over the House but I mean this was a bill was important to them and so I don't wanna have it, you know, I don't wanna kill the bill that you sent us, but if the same provisions, but more specific, are in the bill that we sent them, then they could add this first section of 1972 onto our bill and then still get I mean, that we both both chambers would get, ideally, you know, what they're looking for in this bill. Any other thoughts on it?

[Robert Norris (Vice Chair)]: You got some choice, and we'll get the house I

[Tim Devlin (Legislative Counsel)]: have a problem sending these bills back to the house and let them mix and match us. They best see fit, and then we'll get to read the rewards of what they send back to us.

[Nader Hashim (Chair)]: Sounds

[Tim Devlin (Legislative Counsel)]: good. Good. Yeah great.

[Nader Hashim (Chair)]: Okay so thank you Tim, very helpful side by side is very helpful and I'll make that request recommendation to representative and then we'll see what they do with it. All right so we can break until 09:45. Yeah 09:45, we have Eric and to go over the amendment that has been completed by health health care.