Absentee ballots lawsuit set for hearing
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By Daniel Barlow Vermont Press Bureau - Published: November 28, 2008
MONTPELIER – Vermont election officials will face off against attorneys from the U.S. Department of Justice in court next month as a lawsuit over the state's tracking of overseas absentee ballots lands before a federal judge.
The Justice Department sued Vermont Secretary of State Deb Markowitz in October claiming the state violated a new federal election law – and now the federal judge overseeing the case wants to hold a hearing in the matter.
Markowitz, who is represented in the court filings by the Vermont Attorney General's Office, and the Justice Department have filed hundreds of pages of documents in the case since then, all centered around the state's compliance with the Uniformed and Overseas Citizens Absentee Voting Act.
Judge William Sessions III scheduled a status conference in the case for Thursday, Dec. 11, at 9:30 a.m. at the Burlington courthouse.
"Our plan is to walk in there and show the court that the state is in compliance with the law for this year's general election," said Caroline Earle, assistant attorney general, who is representing Markowitz and the state in the court battle. "It will be pretty clear at that point why this case should be dismissed."
Michael Drescher, the assistant U.S. attorney in Vermont, deferred questions on the lawsuit to the Justice Department's public relations office. A call placed there Monday was not returned by press time.
The Justice Department filed a motion on Oct. 30 for preliminary injunction – a type of court motion that asks a judge to make a decision based on the merits of the case. In this case, the Justice Department asked Sessions to "collect, retain and preserve data regarding the number of absentee ballots that were transmitted."
The case centers on the federal government's belief that Vermont did not follow the law for the 2004 and 2006 elections by reporting back the number of absentee ballots sent overseas. According to that law, states need to report to the federal government exactly how many absentee ballots were sent overseas to U.S. voters for each election.
The state has 90 days after an election to report that information and Justice Department officials say they believe Vermont will miss that deadline for the 2008 election, as well.
"The harm that the United States will suffer if UOCAVA data is not captured and preserved is further illuminated by the results of previous noncompliance," wrote Thomas Anderson, the U.S. Attorney for Vermont in the Justice Department's filing. "With widespread nationwide noncompliance in 2006, including total noncompliance by Vermont, it was difficult to determine the extent to which those serving overseas in our military, and overseas citizens, were able to cast an effective ballot."
Vermont election officials acknowledge that prior to this election, they had problems reporting back the relevant information to the federal government. But they point in place a process this year with local town clerks and other municipal election officials to track the overseas absentee ballots.
The Secretary of State's Office deferred most questions to the Attorney General's Office. Deputy Secretary of State William Dalton said Monday, "I assure you this office sees this lawsuit as something worth opposing."
Vermont state officials asked Sessions last month to dismiss the lawsuit and followed up with a filing on Nov. 13 opposing the Justice Department's request for preliminary injunction. The court filing states that Vermont has "complied, intend[s] to comply and will comply" with the federal law.
"In sum, starting in September, the state proactively took steps to ensure that it would fully comply with the UOCAVA reporting requirement for the 2008 general election," the state's court filing read. "The state is on target to do just that, well within the 90-day period provided under the statute."
Contact Daniel Barlow at Daniel.Barlow@timesargus.com.
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