Lawmakers in January will cast secret ballots to choose Vermont’s next governor, according to state officials and a memo prepared for lawmakers by their attorney.
The one-page memo, obtained by VTDigger, outlines the procedure that will take place when lawmakers convene in January.
The memo cites an 1832 court case and a 1955 attorney general’s opinion and says the word “ballot has been interpreted to mean secret ballot.”
State officials Monday also said that although it is not spelled out, “ballot” has traditionally meant secret in legislative parlance.
The Legislature is set to elect a governor in January because no candidate received more than 50 percent of the vote in last week’s election, a requirement of the state constitution.
Questions about how lawmakers should vote – and the possibility that the second-place finisher, Republican Scott Milne, might be chosen because he won a plurality in more legislative districts – began to swirl after Gov. Peter Shumlin, the incumbent Democrat, won with a razor thin margin. Milne received 2,434 fewer votes than Shumlin.
Historically, when the Legislature votes in such situations, lawmakers usually – but not always – elect the candidate who received the most votes.
Shumlin has declared victory, even though the results are not final. Milne has not conceded and may call for a recount. The deadline for a recount request is Wednesday, the same day the secretary of state releases the official election canvass report.
Milne, speaking Monday on WDEV’s the Mark Johnson Show, dispelled reports that he is lobbying lawmakers to vote for him. Shumlin’s campaign has also denied that the governor is doing so.
The legislative voting procedure applies to three offices: governor, lieutenant governor or treasurer. The last time the Legislature chose the governor was in 2010, Shumlin’s first term, and it did so in the races for governor and lieutenant governor.
This time, the Legislature will select a governor. The candidates are incumbent Shumlin, Milne and Libertarian Dan Feliciano, the top three vote-getters on Election Day.
Shumlin last week won 46.36 percent of the vote, Milne won 45.10 percent and Feliciano 4.36 percent, according to unofficial results from the Secretary of State’s Office.
Senate Secretary John Bloomer on Monday said the legislative memo, while informative, is not binding. Lt. Gov. Phil Scott, who won his own re-election by a wide margin, will preside over the joint assembly, Bloomer said, and secret ballots are a tradition that will be maintained.
“It’s kind of custom, tradition,” Bloomer said, adding that a ballot, by definition, is assumed to be secret.
Secretary of State Jim Condos’ office is in charge of preparing the 180 ballots – for the 150 House members and 30 senators. Condos said lawmakers could choose not to vote by secret ballot.
“If they wanted to, they could do whatever they want,” Condos said. He agreed, however, that “secret” is assumed in the word ballot.
The memo, written by Legislative Council lawyer Betsy Ann Wrask, cites a 1832 court case, Temple v. Mead, which distinguishes between voting in the open and voting by ballot, “the principal object of (which) is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote.”
Wrask’s memo also cites a 1955 opinion by Vermont Attorney General Robert Stafford, that interprets the constitution to mean that secret ballots are appropriate only when elections are required to be by ballot, as in this case.
The vote will take place Thursday, Jan. 8, after the session begins the day before, Bloomer said.
The Legislature’s vote has to be a majority, not two-thirds, it says. If there is a tie and if after two votes, a person has not been selected, the Legislature’s rules require a third vote between the two candidates who received the most secret ballot votes.
Former Gov. Jim Douglas, who was chosen by the Legislature through a similar process in 2002, told Vermont Public Radio on Monday that Milne should probably concede.
