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1 Unsuccessful Vote Dilution Challenge to Automatic Mailing of Absentee Ballots in Vermont 1 (2020)

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CASE STUDIES IN EMERGENCY ELECTION LITIGATION


            Unsuccessful Vote Dilution Challenge
          to Automatic Mailing of Absentee Ballots
                              in Vermont
                            Martel  v. Condos
             (Geoffrey  W.  Crawford,   D.  Vt. 5:20-cv-131)
       A district judge dismissed a federal complaint alleging that mailing
       absentee ballots to all registered voters created an unconstitutional
       risk of vote dilution arising from ballots cast by ineligible voters. The
       judge found the concern to be a general grievance that did not afford
       the five plaintiffs standing to pursue the claims.
           Subject: Absentee and early voting. Topics: Absentee ballots;
       COVID-19.
Five voters filed a federal complaint in the District of Vermont on September
4, 2020, against Vermont's secretary of state complaining that an intention to
mail absentee ballots to all registered voters in Vermont in light of social dis-
tancing made  necessary by the global COVID-19 infectious pandemic was un-
constitutional; it would dilute the votes cast by honest citizens because
many  castable ballots will inevitably fall in the hands of persons other than
the voter to whom the mail-in ballot was directed.' With their complaint, the
voters filed a motion for a preliminary injunction and expedited hearing.2
    On September  10, Judge Geoffrey W. Crawford set the case for a videocon-
ference hearing on  September  15.' On September   16, Judge Crawford  dis-
missed the action.4
       Plaintiffs' case begins and ends with the issue of standing. .. . Cases in
    which plaintiffs assert generalized grievances of unlawful governmental ac-
    tion are commonly dismissed on standing grounds....

       ... If every voter suffers the same incremental dilution of the franchise
    caused by some third-party's fraudulent vote, then these voters have experi-
    enced a generalized injury.5





    1. Complaint at 3, 8, Martel v. Condos, No. 5:20-cv-131 (D. Vt. Sept. 4,2020), D.E. 1; Mar-
tel v. Condos, __ F. Supp. 3d __, __, 2020 WL 5755289 (D. Vt. 2020) (p.2 of opinion filed
at D. Vt. No. 5:20-cv-131, D.E. 15).
   2. Motion, Martel, No. 5:20-cv-131 (D. Vt. Sept. 4, 2020), D.E. 2.
   3. Notice, id. (Sept. 10, 2020), D.E. 6; see Martel, __ F. Supp. 3d at __, 2020 WL 5755289
(p.2 of opinion filed at D. Vt. No. 5:20-cv-131, D.E. 15); Minutes, Martel, No. 5:20-cv-131 (D.
Vt. Sept. 16, 2020), D.E. 15; see also Elizabeth Murray, Voermont Sets Date to Mail Ballots to
Voters, Burlington Free Press, Sept. 16, 2020, at A7.
   4. Martel, __ F. Supp. 3d __, 2020 WL 5755289 (opinion filed at D. Vt. No. 5:20-cv-131,
D.E. 15).
   5. Id. at __ (pp.6, 9 of filed opinion) (quotation marks omitted).


Federal Judicial Center 12/15/2020


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