NEWFANE — A complaint alleging voter fraud in Windham will be amended after attorneys pointed out the town should be named as a defendant, since it is responsible for holding elections.
Deborah Bucknam, an attorney representing two Windham Elementary School parents who filed the complaint, told Judge Katherine Hayes during a status conference Monday that she would submit a new filing by Friday. Lawyers for the defendants had filed motions to dismiss for each individual party Thursday.
Attorney Merrill Bent is representing Lisa Beshay, Alex Beshay and Christopher Strecker, who are described in the complaint as living together in Peru when they voted in special meetings in Windham and as “political allies” of State Rep. Carolyn Partridge, vice chairwoman of the Windham School Board and member of the Windham Board of Civil Authority. Attorney Bob Fisher is representing Partridge.
On Sept. 7, a vote was held on whether to close Windham Elementary School and provide school choice for elementary school.
The article passed by two votes, then Partridge helped organize a petition for a revote, which occurred Nov. 2 and failed by three votes.
“The defendants have remained on the voter checklist, though being removed from Windham Elementary School due to non-residency, which the School Board was privileged to have access to this information,” the complaint filed last month by Erin Kehoe and Crystal Corriveau states. Partridge and the Board of Civil Authority “have violated their non-discretionary duties to remove non-residents from the checklist.”
The lawsuit alleges “fraud in [the] electoral process” and seeks to have the voters removed from the election results. Hayes said before moving forward, the complaint should be amended as pointed out in the two motions to dismiss.
“Because the lawsuit was required to be brought in the name of the Town, the Court must dismiss the lawsuit as against Representative Partridge as a matter of law,” Fisher wrote.
In the motion, Fisher said the town clerk where residents enter a voter checklist should notify the clerk of the last town where they were registered to vote to strike the name from the checklist.
“Here, there is no evidence and no allegation that the Beshays and Strecker have been placed on the checklist in the Town of Peru,” Fisher wrote.
No death certificate nor written request to be removed from the voter checklist from the Beshays or Strecker came to the town of Windham, Fisher wrote.
The defendants would have been able to vote in the two elections, Fisher wrote, because state law says the Board of Civil Authority “shall remove the voter’s name from the checklist on the day after the second general election following the date of such notice, if the voter has not voted or appeared to vote in an election since the notice was sent or has not otherwise demonstrated his or her eligibility to remain on the checklist.”
The matter also is “moot on the basis that even striking these three names from the checklist would have resulted in a different outcome on the vote,” Fisher wrote.
“The school closure vote failed by three votes,” Fisher wrote. “Erasing these three votes would result in a tie, and the measure would fail as a matter of law. The court lacks the power to grant to the plaintiffs an overturning of the vote on Nov. 2.”
Bent called the complaint “the model of a Strategic Lawsuit Against Public Participation (SLAPP)” and said it should be dismissed due to Vermont’s anti-SLAPP law. If the suit was filed because of the conduct of the election rather than silencing political opponents, Bent wrote in a motion to dismiss, the entity or individual charged with certifying the results of the election should have been named as the defendant.
“Instead, Plaintiffs have singled out individuals who they perceive as ‘political allies’ with Plaintiffs’ political opponent for exercising their right to free speech and to petition the government, and accuse them of voter fraud,” Bent wrote. “It is not up to Plaintiffs to police the voter registration checklist for the Town of Windham, and they have no standing to do so.”
Bent said fraudulent voting is defined in state law as occurring when “a person who personates another, living or dead, and gives or offers to give a vote in the name of that other person or offers to give a vote under a fictitious name at a local, primary or general election.”
“The complaint contains no such allegations,” Bent wrote.
Hayes told Bent she would have “some trouble with seeing this as a SLAPP suit,” which the judge sees as applying more to large organizations trying to take advantage of laws to reduce public debate and avoid criticism of their conduct. It is unclear whether all plaintiffs will remain named in the suit.