By H. Brooke Paige
There has been much speculation in the media and on the internet regarding the subject of Vermont’s constitutional requirement that a “joint session” of the Vermont House and Senate elect our next governor. That the newly seated Legislature will be responsible for electing our next governor is a fact of law, since none of the candidates for governor received the required majority of the vote in the November general election.
Those who are demanding that the legislators “rubber stamp” the inadequate vote cast for Mr. Shumlin and elect him as governor because he got the most votes, regardless of the language in the Constitution, are nothing more than unabashed partisans.
The authors of our state’s Constitution provided a mechanism for resolving such inconclusive (less than majority) elections. Rather than requiring a run-off election between the highest vote-getters to achieve a majority result or some other method, like pistols at 20 paces – Vermont’s Constitution places the responsibility for electing the next governor into the hands of the newly elected Legislature. The legislators are entrusted with the responsibility of conducting the business of the state on behalf of the citizen voters, including resolving questions left unresolved by the General Election. Clearly, this process is not intended to be a ceremonial exercise confirming the individual who received a plurality of the votes, as a plurality is considered constitutionally insufficient. The Vermont Constitution and the citizens of Vermont expect the Legislators, acting as electors, to exercise their best judgment in selecting the individual they believe will best serve the state and not to merely “rubber stamp” the earlier insufficient result.
Using a different theory, the Milne supporters have suggested that the Legislators should vote for the same candidate that the majority of the constituents in their district voted for. While this is an interesting idea, like the rubber stamp idea, there is no language in the Constitution to support expecting the Legislators to do so.
Some have suggested that the Legislature’s role in electing the governor, when the voters fail to elect one, is an antiquated and irrelevant throwback to horse-and-buggy days. The process of collecting, delivering and tabulating the vote that Vermont follows today has been updated from the original process described in the Vermont Constitution — the Secretary of State now collects, tallies and reports the results to the General Assembly , the spirit of the process has been preserved and this process has not been challenged before the Vermont Supreme Court, the final arbitrator and interpreter of the state Constitution. The process is far from archaic – in fact it seems quite contemporary, entrusting the final decision to the Legislators chosen by the citizens to conduct the state’s affairs on their behalf.
When the responsibility for electing the governor has fallen upon the Legislators, in the past, they generally have selected the same individual who had received the plurality of votes in the general election – though they were under no obligation to do so. This is certainly reasonable if, all other conditions were equal, the person who received the greatest number of votes was worthy of consideration, however, the Legislators were required to consider all information available to them including facts that the voters were not privy to during the general election and irregularities in the election process had resulted in a outcome at variance with the best interest of the state.
This is exactly what happened in three past gubernatorial elections, when governors were elected who did not receive the majority of votes.
1790 – Shortly after the General Election, when news of what, at the time, appeared to be questionable land dealings on the part incumbent Governor Thomas Chittenden came to light. Chittenden had received a plurality of the vote; however, the news of his land dealings persuaded the Legislature to elect Moses Robertson as governor. In time, the rumors of Chittenden’s questionable dealings proved unwarranted and he received a majority of the votes in the 1791 election and was returned to office.
1813 – The War of 1812 had created unique circumstances in the state; the voting rolls had swollen with the presence of soldiers engaged in the war effort. In 1812, the Legislature had granted the freeman’s vote to all soldiers wherever they were stationed within the state. The war was not going well by election time and the Federalist had gained a political foothold in Republican-Democrat Vermont. This new found Federalist strength along with voting manipulation (especially in thickly populated Burlington and Colchester), findings of voting irregularities and, ultimately, seizing control of the canvasing board – resulted in the election of Federalist, Martin Chittenden, over the higher vote-getter incumbent Republican-Democrat Jonas Galusha. In this case, through political intrigue the Federalists commandeer the election process and elect Martin Chittenden to office – even though Galusha had received a plurality in the General Election.
1853- Erastus Fairbanks, a Whig, had been elected governor in 1852 and had successfully convinced the Legislature to enact an unpopular, statewide prohibition law. In the ensuing election, the new law was a major issue and while Fairbanks had received a plurality of the vote he had failed to receive a majority. The Legislature was under pressure to repeal the prohibition law and remove Fairbanks. The Legislature’s joint balloting elected John S. Robinson, a Democrat, over Fairbanks – even though he had received a plurality of the vote in the General Election.
While most would say that the 1813 election bares little resemblance to the political conditions at work in the 2014 election, the issues of questionable land dealings and the enactment of unpopular legislation impinging on personal rights and freedoms of the citizens do bare a striking resemblance to issues raised in the current election.
The Issue of “Secret” Balloting
Some in both the Shumlin and Milne camps have raised question about the use of a “secret” ballot. In fact, the Constitution specifies that the election be conducted by “joint balloting.” Balloting by nature is a “secret” process as opposed to public expressions by a voice vote or a “show of hands.” Any question of ambiguity has been resolved by the Vermont Supreme Court in the case of Temple v. Mead 4 VT 535 (1832). Wherein the high court distinguished between voting in the open, visa voce, and voting by ballot “the principle object of [which] is to enable the elector to express his opinion secretly, without subject to be overawed (intimidated) or to any ill will or persecution on account of his vote …)”
The Jan. 8 decision
The Legislators, acting as “electors,” will meet in Joint Session on this Thursday, Jan. 8 to elect our next governor. While the voters, in the General Election, failed to elect a governor with a sufficient margin of victory, they did reduce the field of candidates from seven to three, eliminating Diamondstone, Ericson, Peters and Peyton – leaving the Legislators to choose between Feliciano, Milne and Shumlin. From history we learn that there are parallels to the current dilemma, where Legislators have elected individuals who were not the highest vote-getters when there were questions about an incumbent candidate’s business dealings (1789) and when an incumbent had pushed through social policy that went against will of the majority (1853). It is the responsibility of our Legislators to study all three of the highest vote-getters – to look at their moral and ethical fiber to review their positions on the issues, consider their margin of victory and, in the case of the incumbent, review his record of successes and failures.
In the election at hand, we have an incumbent who has experienced moral and ethical issues, has pressed unpopular social and economic issues (healthcare, big wind, Vermont Gas, etc.) with limited success and at great expense to the citizens and state – and appears less than totally cognizant of his failures and misdeeds. Surely, if the incumbent was worthy of another term the voters would have handed him a decisive victory, they did not! The alternates are two experienced, yet untried contenders who have expressed the desire to navigate our state on a more moderate social and fiscal course.
Now it is up to the Legislators not to merely “rubber stamp” the insufficient result of the General Election, rather to review all of the information at hand and by the process of “joint balloting,” to elect Vermont’s next Governor.
H. Brooke Paige, a writer and historian, was Peter Shumlin’s opponent in the Democratic primary. The opinions expressed by the author are his own and do not necessarily express the opinions of the publisher.