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February 24, 2011

Judge Orders Hearing on Legality of Vermont's Campaign Filing Deadlines

Trudell An independent candidate who last year challenged the constitutionality of Vermont's campaign filing deadlines received some good news Wednesday from Washington Superior Court Judge Geoffrey Crawford.

Crawford ruled there are enough open questions — and little legal precedent on the books to answer them — to necessitate a hearing on whether Vermont's newly-adopted election filing deadlines hamper access to the ballot by independent candidates.

Two days of hearings will be held after mid-May, Crawford stated in his ruling.

Last year independent candidate for U.S. House Jerry Trudell (pictured right) sued the state for denying him access to the general election ballot.

The Secretary of State's office has asked Crawford to dismiss the case, but he refused. Assistant Attorney General Megan Shafritz told Seven Days the state was still reviewing Crawford's ruling and was unsure if it would try to appeal it — or simply press forward and prepare its case.

"We just got the opinion in this morning and we're still digesting it and have to review it with the Secretary of State's office before we decide our next steps," said Shafritz. "The court did appear to indicate that the factual record needs to be filled out a bit more before it could prepare for a decision."

Trudell's attorney, Charles Merriman, was thrilled by the ruling. Merriman was a Democratic candidate for Secretary of State last year, but lost in the primary to the current officeholder, Jim Condos. The case was brought during the tenure of the previous Secretary of State Deb Markowitz.

"I was extremely thrilled with the ruling," said Merriman. "The argument that there could be a constitutional infirmity is a very difficult argument to make. I'm glad that Judge Crawford appeared to agree with us that there are some key questions that need to be answered."

Merriman said he was impressed that Crawford took time to spell out the importance that independent candidates, and independent political thought, have on Vermont's political process. In one footnote, Crawford identified independents like former Sen. Jim Jeffords and current Sen. Bernie Sanders as politicians who have made a difference in Vermont politics.

Crawford noted that Sanders' own ascension in politics is owed to another independent — Richard Bove. Bove failed to defeat incumbent Burlington Mayor Gordon Paquette in a primary and ran as an independent in the general election, splitting the vote, and giving Sanders a 10-vote victory.

"Independents — and the views they express — are not taken lightly in this state," Crawford noted.

Doing away with so-called "sore loser" candidates was one impact of last year's campaign filing date changes, because independent candidates were forced to file their petitions for office at the same time that party candidates involved in a primary had to file — several months earlier than had been the case in previous elections.

Vermont lawmakers rushed through a bill last year to change the date of the general election primary from the second week of September to the third week of August. Supporters said the change was necessary to ensure overseas and military ballots could be mailed to voters at least 45 days in advance of the general election. Vermont had run afoul of this federal provision in previous years.

Critics of the change said it was being done solely to allow for more time between the primary and general election for one of the five Democratic gubernatorial hopefuls to have a better chance to recoup after the primary and go toe-to-toe with the sole Republican in the race during the general election. Democrats controlled the legislature by commanding margins but the bill won widespread support. Though he considered vetoing the measure, Gov. Jim Douglas eventually allowed the bill to become law.

The changes forced independents to gather and present signatures to get on the November ballot at the same time that primary candidates had to file to get on the August primary ballot.

The law went into effect on April 7 and the deadline to submit petition signatures to get on the ballot was mid-June — too short a timeframe argued Trudell and other independent candidates. For statewide office, you need to gather 500 signatures. Prior to 2010, candidates for the November election had until 60 days prior to the election — early September — to file their petitions.

Trudell attempted to file his 600 petition signatures in September, after a recount in the Democratic primary stalled the final wording of the November ballot.

In his ruling, Crawford said the change raises plenty of questions — on both sides — with few answers at hand in legal filings to answer them.

Before determining if the law change was necessary to prevent "sore loser" candidates, Crawford said a number of questions deserved firm answers, including: "Do any of the independent candidates who have run for state-wide office in Vermont of the last 20 years fit that description? Do the majority parties actually need or desire this type of protection? Is there an alternative, less burdensome way to provide 'sore loser' protection to the major parties such as a prohibition against appearing on the general election ballot after losing a primary election?'

Another reason for the law change was to ensure that the voting public was adequately educated about all the candidates — and making sure those candidates were identified early in the process. To that point, Crawford said these questions arose: "I there any substance to this concern? Have independent candidates received any additional exposure between the filing deadline and the primary as a result of Act 73? When do voters actually pay attention to elections? How do we weigh the costs of exclusion from the ballot against the benefits of two additional months of public identification for all candidates?"

Crawford said his questions are not intended to be exhaustive, but indicative of the need to have "a real hearing with testimony from both sides" rather than simply paper briefs. Expert witnesses on both sides need to be identified by April 1, and any depositions should be completed by May 15.

Download a copy of Judge Crawford's decision: Download Decision on motion to dismiss

Strange how these things always seem to have the unintended effect of protecting incumbents.

Thanks alot Bove.

I'll point out that Sanders assumed the Mayor's office by 10 or 12 votes in 1980, and then went on to hold it til 1989. Starting with Sanders in 1980, the Progs have held the Mayor's office until today, with a brief 2-year interruption by Peter Brownell in the mid-1990s.

So, with that historical background, two questions:

1. Did the way Burlington historically elected its mayors (40% threshhold) ever need to be changed in order for idependent/minority parties to hold the mayorship? Clearly not.

2. Why did the Progs feel the need to introduce IRV in 2005? A: To guarantee that their hold on the mayorship, which they had already had for 25 years, would never, ever be lost.

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