For the third time in 12 years, Vermont’s Legislature will elect the governor in January, because no candidate received more than 50 percent of the vote on Election Day. Vermont is the only state in the nation where the Legislature can elect the governor. This provision has been in the Vermont Constitution for over 200 years.
Vermont’s first constitution was written in 1777, when representatives of Vermont declared themselves an independent republic. At that time, many Americans distrusted strong executive officeholders. Political parties had not yet developed, and powerful legislatures were seen as a check on executive tyranny.
Vermont’s first constitution assumed that no candidate for governor would be able to gain majority support among the voters. Rather, the voters would nominate a short list of eminent men, and the Legislature would choose the governor from the top three nominees. This provision, with minor alterations, remained in the constitution that was adopted in 1793 after Vermont was admitted to the Union as the 14th state, and has remained basically intact to the present day.
Having the Legislature elect the governor reflects 18th-century, rather than 21st-century, understandings of politics and political parties, and the relationship among the voters, legislators and the governor. It also leaves open the possibility that legislators could choose someone other than the first-place finisher on Election Day. However, this has never happened since 1853, before the emergence of both the Republican and Democratic parties we know today.
In most states, the person who receives the most votes on Election Day is elected governor. This system of plurality election is used in Vermont for the election of members of the U.S. House and U.S. Senate, and for all state offices other than governor, lieutenant governor and treasurer. Both in Vermont and in other states, plurality election works well most of the time. The problem is when a strong third-party or independent candidate gets enough votes so that the winner has 40 percent of the vote or less.
To alleviate this problem, some states have requirements for runoff elections. If no candidate receives a specified percentage of the vote, there will be a runoff election a few weeks later between the top two finishers in the General Election. For example, Louisiana will have a runoff election for U.S. Senate in early December because neither Democratic Sen. Mary Landrieu nor Republican Bill Cassidy received 50 percent of the vote on Nov. 4.
Another alternative is ranked-choice, or instant runoff, voting. Under this system, voters rank-order candidates when they mark their ballots. If no candidate has a majority of the first-place votes, second choices are reallocated until someone clears the 50 percent threshold.
Burlington used the instant runoff system for mayoral elections in 2006 and 2009. Burlington’s voters repealed instant runoff voting in 2010, because of dissatisfaction with the 2009 election results, when Progressive Bob Kiss was re-elected mayor even though he finished in second place when the first-choice votes were counted.
If Scott Milne decides to continue his gubernatorial campaign among legislators he would, in effect, be asking legislators to apply instant runoff rules to the election result. Milne would have to argue that since neither he nor Peter Shumlin received a majority of votes on Nov. 4, legislators should look to voters’ second choices.
Milne believes that he would have been the second choice of most of those who voted for the third-place finisher, Libertarian Dan Feliciano. Adding these second-choice votes to those Milne received at the polls, would, in Milne’s view, give him more votes than Shumlin. While this argument is not implausible, it is inconsistent with more than 160 years of Vermont history.
Eric L. Davis is professor emeritus of political science at Middlebury College.