Committee reviews H541 and S298, debates mental state and private lawsuits in voter-interference proposals

The Judiciary Committee held a March 25 briefing to compare House Bill H541 and Senate Bill S298, which both aim to prohibit interference with voters and election officials. For the record, Tim Devlin of Legislative Council walked members through a color-coded side-by-side of the bills and the underlying statute.

Devlin read the core language the House draft amends, citing 17 V.S.A. chapter 55, and summarized the main differences: the House bill uses broader language about obstructing or interfering with voting and allows a prosecutor to prove either intent or recklessness; the Senate bill enumerates more specific obstructive acts and generally requires intent. "No person shall intentionally or recklessly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of ... obstructing or interfering with" voting, Devlin read from the House text, underscoring the broader phrasing in H541.

Members pressed on mental-state standards and examples. A committee member asked for examples distinguishing reckless from intentional threats; Devlin explained that intentional conduct shows a conscious desire to produce the result, while recklessness involves conscious disregard of a substantial and unjustifiable risk that others could view a statement as threatening. He noted the bills use different tiers of culpability and that recklessness remains a lower tier than intent.

The committee discussed how the Senate drafts list concrete examples of obstruction — refusing to permit a qualified voter to vote, failing to tabulate or report counts, or changing a ballot — whereas the House bill uses a generalized obstruction term that could encompass many of those acts. Devlin said the Senate language may offer helpful specificity.

Members also examined penalties and remedies. Devlin said criminal penalties in the drafts are similar in many respects (statutory language cites imprisonment up to two years and fines up to $2,000 for certain offenses, with particular subdivisions carrying shorter terms and different fines). The Senate proposals also include a private right of action that would allow affected voters to seek injunctive relief to stop intimidating conduct. Devlin clarified those private causes are equitable — aimed at stopping the conduct — and are in addition to, not instead of, criminal prosecution.

Several members raised constitutional caution. A committee member identified as Maddie favored the Senate bill's higher mens rea and more specific examples to reduce First Amendment risk, citing Counterman v. Colorado (600 U.S. ___ (2023)) on recklessness in the threats context. "We want to have that higher mens rea," she said, arguing specificity coupled with a higher culpability standard could guard against overbreadth.

The committee noted one drafting discrepancy: two provisions in the Senate drafts explicitly apply to state party caucuses while the House draft is silent on caucuses. Members agreed that harmonizing that coverage was a topic to resolve.

No formal motion or vote was recorded during the briefing. Members agreed the side-by-side was helpful and said they would flag recommendations to Representative Malone; the committee recessed until 9:45 a.m., with an amendment presentation by another staffer scheduled after the break.

This review focused on statutory wording, culpability standards, enumerated examples of obstructive conduct, and whether civil injunctive remedies should be available alongside criminal penalties.