[QUICK HIT: The Orleans-Caledonia 1 recount confirms up-and-comer Democrat Sam Young’s win, with a margin of one single vote. The recount was requested by fellow Democrat John Rodgers, who came in third in the two-seat district after Republican Vicki Strong and young Sam.]

Tuesday’s Franklin-4 (Bakersfield-Enosburg) recount may have established a precedent, although you couldn’t tell by the result. Incumbent Republican Peter Perley was certified the winner over Progressive-Democratic candidate Cindy Weed – the same overall outcome as on election night. The margin was 3 votes closer than on Nov. 2.

What makes this recount special, according to Secretary of State Elections Division Director Kathy DeWolfe, is that there has never before been a recount where one candidate was co-endorsed by two parties, the Progressives and the Democrats. There have been plenty of candidates who’ve run as Democratic/Republican, but those seats are usually “gimmes,” no opposition, and thus no recount. There have been some P/D candidates, but they either won or lost by a wide enough margin that there was no recount.

So why have a recount? And how did it work with a P/D candidate? If you’re not a wonkish sort, you might want to move on to another diary.

With a margin of just 34 votes out of 1569 votes cast, Cindy Weed was well within her rights to file for a recount.

On November 16, County Clerk Jim Pelkey requested Republican and Democratic county chairs to each submit a list of at least 12 recount volunteers. By Monday the 22nd, the Progressive Party had been asked for a list, too.

Wednesday (the day before Thanksgiving), Jim sent out a proposal for assignment of duties. Many of you know how this works because of the recent gubernatorial primary recount. In this recount there were various “teams”: a checklist team, a ballot bag team, a set of “clerk observers,” a “clerk assistance team,” and four tables of counters. All the teams had representatives from each party.

That’s when the fun began. The situation and the argument is summarized in the document I eventually filed for a court ruling:

Emergency Request for Ruling

Franklin County Superior Court – Civil Division

IN RE: Cindy Weed, for the recount of votes cast Docket No. S 501-10 Fc

for State Representative from Franklin District 4,

General Election of November 2, 2010 Emergency request for ruling

Now comes Euan Bear, County Chairwoman of the Franklin County Democratic Committee to request an emergency ruling (due to the imminence of the scheduled recount) on the fairness and legality of apportionment of recount participants for the Tuesday, November 30 recount of votes cast in Franklin District 4.

Republican County Chair Linda Kirker requested of County Clerk Jim Pelkey to reduce the number of participants from the Democratic and Progressive Parties, alleging that because the two parties would both represent Candidate Cindy Weed’s interests, their number combined should equal that of the Republican participants in the recount.

I, Euan Bear, on behalf of the Franklin County Democratic Committee, object to this parsing of 17 V.S.A. 2602a – Appointment of recount committee, subsection (b), which reads:

The superior court shall set an early date for the recount, making appointments to the recount committee from among those nominated under this section. In making these appointments, the court shall appoint an equal number of persons from each party and from those persons representing an independent candidate. After making the appointments, the court shall notify all candidates  […] (Added 1985, No. 148 (Adj. Sess.), § 5; amended 2009, No. 40, § 3, eff. May 26, 2009.) [emphasis added]

The statute requires an equal number of participants from each party. The proposal to reduce and combine two parties’ representation on the recount committee violates that provision of statute.

Candidate Cindy Weed ran in the Democratic Party Primary and won our party’s nomination. She also was nominated via write-in vote in the Progressive Party Primary. There were two primaries by two separate major parties. In regard to this recount, each party – Democratic, Progressive, and Republican – has a separate interest in the outcome of the recount and is entitled to an equal representation on the recount committee.

Attempting to combine the interests of two separate major Parties and thus cut in half their representation on the recount committee would set a bad precedent. The fact that the two major Parties endorsed the same candidate is irrelevant. Separate major Parties’ endorsement of the same candidate should not result in the abrogation of their right to equal representation on recount committees.

Kirker’s argument had made a kind of sense on first glance. Jim sent out a request on the day after Thanksgiving to cut the D’s list. I called a few people to let ’em off the hook and then realized the whole idea gave me agita. I phoned GMD frontpager and Washington County Chair Jack McCullough for help with the recount law, and his research formed the centerpiece of my argument to the court.

There was a flurry of emails over the weekend in an attempt to find a workable compromise. Kirker cited the next section of the law to bolster her position:

§ 2602b. Assignment of duties

(b) The county clerk shall assign committee members to teams of at least four persons, consisting of one caller and one observer, representing different candidates, and one tally person and one double-check person, representing different candidates. Any additional team members shall be additional observers and double-check persons […]  [emphasis added]

I called an ‘elder statesman’ and Democratic rabble rouser, just to run the whole thing by him. He made clear the distinction between the party representatives appointed to the recount committee and the assignment of duties to representatives of each candidate.

It was above my ‘pay grade’ to figure out the apparent conflict between the two sections of the statute. I let Jim know I would be filing my request for an emergency ruling from presiding judge Mark Keller first thing Monday morning.

I have worked to bring Progressives and Democrats together in Franklin County. I helped convince both Cindy Weed and the County Democratic Committee that the election math would only make sense if she ran in the Democratic Primary and got an organized write-in vote from the Progressive Party. So, Ds & Ps can and should work together? Yes. Should we have to give up rights as separate parties to do so? Emphatically no!

I wanted to be sure that the principle of equal representation for each party was upheld. It might have far-reaching, though rarely applied, implications if running on two parties’ tickets meant giving up that right.

With help in phrasing from another lawyer friend, I filed the request, Kirker filed her response, and by the end of the day, we had our answer: The principle of party parity was upheld.

Parties are entitled to equal representation at the counting tables as well as on the other teams; but in the “core four,” there would be two Rs and either two Ds or a P and a D. The extra Ps or Ds would be extra checkers at the tables.

From Judge Keller’s order:

In this admittedly unusual case, there will be more people on the recount committee who support Democratic/Progressive candidate Ms. Weed than who support Republican candidate Peter Perley.

However, this is not prohibited […] The recount statutes expressly allow additional committee members – above and beyond the four core members – to be assigned to a team without requiring that they be assigned with regard to party or candidate affiliation. […] Thus, as long as the caller, observer, tally person, and double check person are properly assigned, it is not problemmatic to have additional team members disproportionately favoring one candidate or party.

In practice, the Progressives had fewer people in the room. There were four tables of five, with two Rs at each table, and two D’s and a P. The duties were basically rotated, and each batch of 50 ballots was hand-counted twice. The machine-tabulated totals from Enosburg tallied exactly with the manual recount. In Bakersfield, where all votes are hand-counted, Cindy Weed gained three votes.

And in Franklin County, the principle of party parity in recounts was upheld.