A federal judge heard arguments in Rutland Tuesday on a legal challenge to the state’s mail-in voting plans.

A lawsuit filed earlier this month by five Vermont residents seeks to block Secretary of State Jim Condos’ plan to offer universal vote-by-mail at the November election. In a hearing held via Zoom, Judge Geoffrey Crawford heard arguments for and against a preliminary injunction on the program.

Crawford said he intended to deliver a decision today.

David Warrington, attorney for the plaintiffs, said the case was not predicated on the risk of fraud altering the course of an election, but on the argument that a ballot cast improperly — whether on purpose or otherwise — would violate the Constitutional rights of his clients by “diluting” their votes.

“We’re focused on harm to the individual,” he said. “That is a harm that is concrete. That is addressable by courts.”

Crawford noted that an amicus brief filed by former Colorado Secretary of State Scott Gessler made a number of suggestions on how Vermont could improve its vote-by-mail protocols, and they all seemed sensible to him as a layperson.

“Is that really our role, to try to figure out a better system?” he asked.

Crawford returned to that theme later in the hearing, asking if he, as an unelected judge, should be cautious about substituting his own judgment for that of an elected official like the Secretary of State.

Warrington said the court’s role is to protect individual voters, which it could do by reverting to the status quo. He said the record absentee ballot participation in the August primary demonstrated Vermont already had an adequate system for mail-in ballots.

Representing the state, Philip Back said the concept of vote dilution came from redistricting cases, which were a different area of law and did not apply to the discussion about mail-in ballots. He said the Secretary of State’s office was not depriving anyone of their right to vote, and the plaintiffs seemed to be arguing that their rights would be violated in any system that was not perfect.

“Having two ballots isn’t a problem,” he said. “It’s the voting twice that’s a problem, and we have systems in place to prevent that.”

Further, Back said, there are recourses for voters whose ballots are sent to the wrong place. Warrington countered that having to fill out the paperwork with the town clerk called for in such a case was a burden on the voter and characterized the state’s argument as “trust us, we’ve got this.”

Crawford rejected a request to submit further amicus briefs, saying he would not be able to offer opposing counsel time to reply to them.

“Thanks but no thanks,” he said. “The time is just too short.”

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