MONTPELIER — A superior court judge has effectively ended a Barre man’s bid to be hand-counted out of a city council race he lost by 38 votes on Town Meeting Day.

Barring a Supreme Court appeal, Brian Judd will have to live with the loss in a man versus machine lawsuit that sought to put Barre’s vote tabulating machines on trial and secure a hand recount of ballots cast in a race he lost to Teddy Waszazak, 247-209, four months ago.

The race for Waszazak’s Ward 2 seat on the City Council was close, but not close enough to entitle Judd to a recount — either by hand or by machine — and he filed the lawsuit after City Clerk Carol Dawes denied his request to pay for one himself.

City Attorney Oliver Twombly promptly moved to dismiss the lawsuit and, after some scheduling delays — at least one at his request — Judd got his day in court on Tuesday.

During a virtual hearing that ironically featured its share of technical difficulties, Judge Robert Bent ruled Judd provided scant evidence he too was a victim of a glitch.

In fact, Bent noted Judd’s most compelling witness — Will Senning, the state’s veteran director of elections — undercut key aspects of his argument.

Though Judd and two other Barre voters, Aletha Kelly and John Santorello, testified one of the voting machines used during the city’s March elections initially rejected their ballots before accepting them, Senning explained under oath that wasn’t unusual.

“It’s a fairly common occurrence every election at almost every polling place for a number of ballots to be rejected by the tabulators,” he said, suggesting that isn’t an indication the optical scanning machines aren’t functioning properly, or that there is something defective with the ballot.

Pressed by Judd to explain why his, and others’ ballots, were initially rejected and why the reason, which would have displayed on the tabulator’s LED screen wasn’t shared by poll workers, Senning said his “strong assumption” was because it didn’t need to be. He said the most likely message — “ballot not read, please re-insert” — didn’t need to be communicated with voters who are routinely asked to try again because sometimes the machines are skittish.

The explanation preferred by Judd was that the ballots were kicked out because they reflected “over votes” — in the case of his race votes for both he and Waszazak — that might have been miscounted by the machine.

Not according to Senning, who testified that simply isn’t how they work unless they are manually overridden by election officials.

“Under no circumstance … will it (automatically) accept a ballot with an over-voted race,” he said, noting that none of the witnesses, including Judd, testified that poll workers did anything other than instruct them to try again.

Absent manual intervention, Senning said, the tabulators used in Vermont would not accept a ballot with an over-voted race on the second, third, or any subsequent attempt.

“It’s a basic functionality of those machines,” he said.

Judd’s only other witness, Colleen Harrington, didn’t do much to bolster his case and his attempt to introduce a news account of an audit and recount of a New Hampshire election last year drew an objection from Twombly and Bent said problems with a similar machine in New Hampshire wasn’t particularly helpful absent context that wasn’t provided.

“I can’t use the New Hampshire experience in a meaningful way here,” he said.

Bent said Senning’s testimony was persuasive, Judd provided no actual evidence of error — much less one that might have affected the outcome of the race — and wasn’t entitled to a recount.

“If I were to follow Mr. Judd’s logic and argument essentially … we could have a … hand count in virtually every case when this machine is used because in every voting situation there are going to be cases when the machine kicks the ballot back,” Bent said.

“That’s just not feasible, that’s not the law,” he added. “We only have recounts for very specific purposes.”

Bent said “skeptics” could be comforted that the state regularly and randomly audits vote tabulating machines and, according to Senning’s testimony, those audits have never turned up a significant discrepancy since they were started 15 years ago.

It isn’t clear when Barre’s tabulators were last audited by the state, but they were tested two years ago after a Ward 1 City Council race that was narrowly won by John Steinman.

Steinman defeated incumbent councilor Sue Higby, 170-161. Higby was within the 5% threshold and requested a recount and the ballots were counted by hand. The result didn’t change and the hand recount confirmed Steinman won, 170-161, in a race where there were 10 “blank” ballots and one “over vote.” The over vote was located during the recount and showed someone had voted for both Steinman and Higby. That ballot, which wasn’t tabulated by the machine, was excluded.


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