Order Page 1 of 4

23-CV-01360 Erin Kehoe et al v. Lisa Beshay et al 

### VERMONT SUPERIOR COURT CIVIL DIVISION

Windsor Unit

12 The Green

Woodstock VT 05091

802-457-2121

www.vermontjudiciary.org Case No. 23-CV-01360

Erin Kehoe and Crystal Corriveau

Plaintiffs

v.

Alex Beshay, Lisa Beshay, Chris Streker,

and the Town of Windham

Defendants

Decision on Defendants’ Motion to Dismiss

At a traditional town meeting, the moderator presides over the meeting, regulates the

discussion, and conducts votes upon each warned article. 17 V.S.A. §§ 2658–2660. After the vote is

taken, the moderator announces the outcome of the public question, and the consideration of the article

is concluded.

After that, voters are permitted to make a motion for reconsideration. If the motion is made and

seconded, the motion is then discussed and voted upon, and if the motion for reconsideration is

approved by a majority of the voters, the assembly then takes up anew the article that was previously

considered, as if the prior vote had not taken place. At a traditional Vermont town meeting, this

procedure is only available for a limited period of time: the motion for reconsideration cannot be made

“after the assembly has begun consideration of another article.” 17 V.S.A. § 2661(a). An experienced

town moderator, for this reason, typically pauses for a few beats after announcing the outcome of a

vote on a main article in order “to allow adequate time for a motion for reconsideration to be made

before taking up the next article.” See Vermont Secretary of State, A Handbook for Vermont

Moderators at 9 (2009) (copy in file).

Votes conducted by Australian ballot do not occur within the context of an assembled meeting,

and so there is no opportunity for a voter to make a motion for reconsideration, nor for the assembly to

debate and vote upon such a motion. Instead, there are two different mechanisms that serve the same

purpose: either the town selectboard or the school board might decide to warn the article again and

conduct a new vote on the same article, 17 V.S.A. § 2661(a), or at least five percent of the registered

voters in the town may petition for reconsideration, 17 V.S.A. § 2661(b). Both of these methods result

in a new vote on the same article as previously considered, as if the prior vote had not taken place. The

new vote must use the exact same language as the original article. 17 V.S.A. § 2661(d)(1).Order Page 2 of 4

23-CV-01360 Erin Kehoe et al v. Lisa Beshay et al 

### In other words, a petition for reconsideration that meets the criteria of § 2661(b) has the same

parliamentary effect as a successful motion to reconsider made from the floor: it results in a new vote

on the original public question.

When former Governor Jim Douglas was Vermont’s Secretary of State, he wrote a treatise on

Vermont town-meeting law with his then-deputy secretary Paul Gillies. They discussed this issue in

their treatise, and explained that when a town receives a valid petition for reconsideration of a public

question that was voted on by Australian ballot, the town should schedule a new vote upon the original

question. As they put it, “[a] new vote on the article voted is automatic, without any need for a vote on

the question of whether to reconsider or not.” 1 Douglas & Gillies, A Book of Opinions at 476 (1992)

(copy in file). The court finds this analysis to be persuasive.

In this case, on September 7, 2021, the voters of the town of Windham voted by Australian

ballot upon the following question:

Shall the Windham Elementary School be closed and all educational

operations at that location be terminated at the end of the 2021-2022

school year and shall the voters authorize the Board of School Directors

to provide for the education of the School District’s PK-6 pupils by

paying tuition in accordance with 16 V.S.A. § 21(a)(1)?

A majority of the voters answered this question in the affirmative. As a result, the article was

approved, and the result of the public question was that the school should be closed. After that

outcome was announced, a variety of townspeople began circulating a petition for reconsideration, and

the petition garnered more than five percent of the registered voters. The petitioners then submitted

their petition to the town, and a new vote was warned for November 2, 2021.

At the new vote on November 2, 2021, the article was worded exactly the same as the article on

the original vote, as required by 17 V.S.A. § 2661(d)(1). The voters of the town of Windham voted by

Australian ballot upon the following question:

Shall the Windham Elementary School be closed and all educational

operations at that location be terminated at the end of the 2021-2022

school year and shall the voters authorize the Board of School Directors

to provide for the education of the School District’s PK-6 pupils by

paying tuition in accordance with 16 V.S.A. § 21(a)(1)?

This time, the outcome of the vote was that 139 votes were cast in favor of the article, and 142

votes were cast against the article. As a result, the article was not approved, and the result of the public

question was that the school should not be closed.

Plaintiffs thereafter filed this election contest. Plaintiffs’ fundamental allegation is that three

voters participated in the election even though they were not then residents of the town. It has been

assumed throughout the case that all three voters cast ballots against the article. However, it appears to

the court that, even if these three votes were set aside, the result of the public question would be the

same: there would be 139 votes cast in favor of the article, and 139 votes cast against the article. As a

result, the article would not have received “a majority of the votes . . . in favor of the proposition,” and

so the article would not be approved, and the result of the public question would be the same: that the

school should not be closed. See 17 V.S.A. § 2681a(e) (explaining that, for public questions conductedOrder Page 3 of 4

23-CV-01360 Erin Kehoe et al v. Lisa Beshay et al 

### by Australian ballot, “[n]o public question shall pass unless a majority of the votes, excluding blank

and overvotes, is cast in favor of the proposition”).

A court cannot grant relief in an election contest unless (1) there were errors committed in the

conduct of the election “sufficient to change the ultimate result,” (2) there was fraud in the electoral

process “sufficient to change the ultimate result,” or (3) for another reason, “the result of the election”

was compromised. 17 V.S.A. § 2603(b)(1)–(3). If an election contest does not present an issue of

sufficient magnitude to have “actually affected the election result,” the election contest should be

dismissed for failure to state a claim upon which relief can be granted. Paige v. State , 2024 VT 7, ¶ 11;

Luna v. City of Burlington , No. 21-AP-201, 2022 WL 424880 (Vt. Feb. 2022) (unpub. mem.); Putter v.

Montpelier Pub. School System , 166 Vt. 463, 467–69 (1997); Jackson v. Town of Castleton , No. 339-6-

15 Rdcv, 2015 WL 13021692 (Vt. Super. Ct. Nov. 25, 2015) (Teachout, J.).

Here, for the reasons identified above, plaintiffs’ election contest does not identify an issue

“sufficient to change the ultimate result” or that “actually affected the election result.” The result of the

public question would have been the same regardless of whether the three challenged votes were set

aside.

Defendants first raised this issue in a motion filed in December 2021. Over the months since

then, there have been several court rulings on a variety of motions, but this issue has never been

addressed nor decided by the court. It may be that confusion has persisted on the question of whether

the November 2nd vote was a vote on a motion to reconsider or instead a “reconsideration vote”—a

new vote on the original public question. * 

### Plaintiffs have argued that the November 2nd vote was a

vote on a motion to reconsider, such that a tie vote meant that the motion to reconsider failed, and that

the result of the September 7th vote would stand. If that was a correct interpretation of the

parliamentary procedure, plaintiffs would have stated a valid election contest upon which relief could

be granted.

But, as explained above, plaintiffs’ interpretation is not correct. It also does not reflect the

language of the actual vote taken. The voters were not asked whether they wanted to reconsider the

prior vote. The voters were instead asked—as required by § 2661(d)(1)—to vote on whether the

Windham Elementary School should “be closed and all educational operations at the location be

terminated at the end of the 2021-2022 school year.” This was a vote on the original public question.

The outcome was negative, regardless of whether the three challenged votes are included or excluded.

17 V.S.A. § 2681a(e). As such, plaintiffs’ complaint does not identify an issue that “actually affected

the election result” or upon which election-contest relief can be granted.

* 

### The term “reconsideration vote” is confusing, because it uses the word “reconsideration.” The term is

used by Douglas and Gillies in their treatise, supra , at 475, and by Judge Teachout in Jackson , 2015 WL

13021692, and in 17 V.S.A. § 2661(e). It refers to the new vote on the original public question that follows

either from a successful motion for reconsideration or from a successful petition for reconsideration. It does not

mean that the new vote is the parliamentary equivalent of a vote on the motion to reconsider. Douglas and

Gillies are clear that a “reconsideration vote” is a new vote on the original public question rather than “a vote on

the question of whether to reconsider or not.” 1 Douglas & Gillies, supra , at 476.

### Plaintiffshavearguedthat

### itis

### wrongforthecourtto

### relyuponthe

### work

### ofDouglasand

### Gillies,becausetheirtreatisewaspublishedbeforeamendmentsweremadetothestatutesin1992.

### Butthecourthas

### reviewedthoseamendmentsanddoesnot

### findthemtoberelevanttoeitherits

### analysisorthe

### analysis

### ofDouglasand

### Gillies.

### Ifanything,theamendments

### reaffirmthat,oncesuccessfulpetition

### forreconsiderationhasbeen

### filed

### withthetown,thenewvoteshouldbeconductedonthe

### originalpublicquestion,

### withthearticlestated

### “as

### lastlyvoted.”17

### V.S.A.2661(d)(1).Inotherwords,theamendment

### clarifiesthatthenewarticleshouldbewarned

### withthesamelanguageasthe

### originalpublicquestion.

### Theonly

### waytointerpretthisamendmentisthatthe“reconsideration

### vote”isnew

### voteonthe

### publicquestion,ratherthanvoteuponwhethertoreconsider.

### Plaintiffshavealsoarguedthatthe

### November2ndelectionwas

### invalidbecausethewarnedarticledidnot

### trackthepetition,

### citingConcernedVoters

### ofLondonderryv.

### Prouty,138

### Vt.442,443

### (1980).However,thatcase

### involvedpetition

### forrescission

### (whichisdifferentprocedure,see

### Douglas

### Gillies,supra,at477—78)

### whichthetownrewordedandwarnedasthoughthepetitionhadrequestedreconsideration.Inthatcontext,therecharacterization

### ofthepetitionwasdeterminedtobeerroneous.

### Prouty,138

### Vt.at443.Here,thepetitionrequestedreconsideration,andthetownwarnednew

### vote

### accordingly.

### l7

### V.S.A.266l(d)(l).Assuch,thecourtfindsnoerror

### inthelanguage

### ofthe

### warning.

### Asmade

### clear

### bythe

### court’s

### January24,2023summary-judgmentdecision,the

### remaining

### claimsinthiscasederivefromtheauthority

### ofthecourttogrant“appropriate

### relief’inthecontext

### ofvalidelectioncontestunder17

### V.S.A.2603.

### Because

### plaintiffshavenotstated

### validclaimupon

### whichthis

### reliefcanbegranted,theremaining

### claimsinthecaseareherebydismissed,the

### remainingmotionsaredeniedasmoot,andthecaseisclosed.

### Electronicallysignedon

### Monday,

### March

# ll,2024pursuantto

### V.R.E.F.9(d).

# MCDIWWH.

### DicksonCorbettSuperior

### Court

### JudgeVermontSuperiorCourtFiled03/1124WindsornitOrderPageof23-CV-01360ErinKehoeeta1v.LisaBeshayeta1