Editor’s note: Jon Margolis is VTDigger’s political columnist.
[S]cott Milne did not concede.
And why should he?
He hasn’t lost yet. Not according to the laws and the Constitution of the state of Vermont. And what else matters?
Well, maybe politics and common sense. One reason Milne should consider conceding (and may next week) is that he’s unlikely to convince a majority of the Legislature to make him governor over incumbent Peter Shumlin, who got 2,434 more votes than Milne in last week’s election.
So if Milne does make an all-out effort to persuade the lawmakers to elect him – and fails – he’ll be humiliated.
Worse, he risks coming across as petulant, a reputation that could haunt him should he seek political office in the future.
That’s the message Milne is getting from the two most influential figures in his own party. Former Republican Gov. Jim Douglas, speaking on Vermont Public Radio, said Milne’s best course would be “to acknowledge the result and come back and fight another day.” And Lt. Gov. Phil Scott, the only Republican statewide elected official, said that if he were in the Legislature he would vote for the candidate who got the most votes.
But there is no law forcing legislators (and Scott is not one) to vote for the plurality winner. The Constitution merely says that if no candidate for statewide office receives “a major part of the vote,” then “the Senate and House of Representatives shall by a joint ballot, elect to fill the office … one of the three candidates … for whom the greatest number of votes shall have been returned.”
Constitutionally, then, the Legislature could choose Shumlin, Milne or Libertarian Party candidate Dan Feliciano, who came in a distant third with 8,428 votes (4.36 percent).
The “joint ballot” means (or at least has been taken to mean) that the two houses meet as one body. These days, that’s 180 lawmakers, meaning the winner needs 91 votes.
A simple look at the arithmetic and the politics shows how unlikely it will be for Milne to prevail. Of the 180 members of the new legislature that will convene in January, 112 will be Democrats or Progressives, 62 Republicans, and six independents. Even if all the Republicans and independents supported Milne, he’d need 23 of those Democrats and/or Progressives to win.
Hardly likely.
Especially because it has almost never happened. The tradition in Vermont has been for lawmakers to choose the top vote-getter, regardless of party. Only once in the memory of any living human did the Legislature choose the second-place finisher. And that was for lieutenant governor. And that was because the lawmakers knew that the first-place finisher in 1976, Democrat John Alden, was under criminal investigation. What a great excuse for a Republican Legislature to choose Republican T. Garry Buckley to be lieutenant governor. Alden was later convicted.
But tradition is only … tradition. It has no force of law, and it does not necessarily reflect – or produce – wisdom and enlightenment. In suggesting last week that he might urge legislators to choose him, Milne made two arguments that make just as much sense as the assumption that the lawmakers should choose the plurality leader.
First, he noted that each lawmaker could vote for the candidate who came in first in his or her district, rather than for the statewide leader. That’s hardly an unreasonable argument. Representatives are, among other things, supposed to represent their constituents. So why not follow the constituents lead when it comes to picking a governor?
Not that this would put Milne into the governor’s chair. Reporter Neal Goswami of the Vermont Press Bureau did the calculation: if each lawmaker voted as his or her district did, the result would be a 90-to-90 tie.
For that to happen, some senior Democrats, including House Speaker Shap Smith of Morristown, would have to vote for Milne. They will not.
Milne said he had a different count, one that would net him 93 votes. But – again – that would require most Democrats whose districts Milne carried to vote for him in January. Already, several of those Dermocrats have announced that they will vote for Shumlin.
Second, Milne said that “it’s clear that 54 percent of Vermonters want a new governor.”
What he didn’t say is that while almost 54 percent (53.64 percent to be precise) voted for someone other than Shumlin, 54.9 percent voted for someone other than Milne.
But, Milne said, the election was really “a referendum on Peter Shumlin,” which Shumlin effectively lost.
That’s a plausible political interpretation. But political interpretation is for pundits and professors, not for elected officials choosing governors.
Milne is still in this race – or at least thinks he is – not simply because the final count was so close, but because it was so surprisingly close. Because the one public poll showed Shumlin far in the lead, because the governor had so much more in his campaign treasury than Milne, because Milne entered the race late and stumbled as a candidate, almost all the “experts” (present company not excepted) predicted a blowout.
And those predictions no doubt helped keep it from being a blowout. Thousands of voters whose political views are left of right, if not left of center, stayed home both because they were not enthusiastic about Shumlin (and some were downright hostile to him) and because they assumed he didn’t need them. Had they thought a Republican had a chance to become governor, more would have gone to the polls and – perhaps holding their proverbial noses – voted for Shumlin.
But weren’t there also some folks who would have filled in the oval near Scott Milne’s name, but who stayed home because the “experts” had convinced them Milne had no chance?
Sure. But not as many. Low turnout (and Vermont’s was very low) hurts Democrats everywhere. Even in, for instance, blood-red Idaho, the more voters who turn out, the better for Democrats. That’s even truer in sky-blue Vermont. Absent the predictions that Shumlin would win easily, he would have won more easily.
That doesn’t detract much from Milne’s argument that lawmakers can and should make up their up their own minds. They can and should, regardless of tradition. They need not vote for the candidate who got the most votes statewide, nor for the candidate who got the most votes in their district.
In the famous words of the 18th Century Anglo-Irish philosopher Edmund Burke, “your representative owes you, not his industry only, but his judgment.” The senators and representatives will vote as they please. On that reality hangs Scott Milne’s slender hope, which he has a right to pursue, regret it though he might in years to come.