Republican Scott Milne’s bid to win the 2014 gubernatorial election in the Vermont Legislature could have an impact on future elections, political scientists and historians say.
Lawmakers should consider amending the Vermont Constitution, experts say, to prevent future candidates from following Milne’s precedent-setting refusal to concede and subsequent pursuit of a legislative candidacy.
Milne lost to Gov. Peter Shumlin by 2,434 votes on Nov. 4. Shumlin received 46.4 percent of the ballots cast, while Milne got 45.1 percent of the vote.
Under the Vermont Constitution when no candidate wins a majority of the votes (that’s 50 percent plus one) in a statewide contest, the General Assembly must determine the winner. Neither Shumlin nor Milne reached the 50 percent threshold.
Typically, the loser of the popular election admits defeat and concedes the race to the top vote-getter.
But Milne has maintained that he won more legislative districts than Shumlin did and therefore should be declared the winner by the General Assembly at 10 a.m. Jan. 8.
Last week Milne’s supporters began actively campaigning for his election in the Legislature with TV ads and an email and phone campaign aimed at lawmakers. Lawmakers interviewed for this story say they have received dozens of calls supporting his legislative gubernatorial campaign.
Milne said on Sunday his “chances are improving.” When asked how many lawmakers support his candidacy, he said his statement was “non-mathematical.”
“I’m not counting votes, and if I was, I don’t think I’d have close to 91,” Milne said. He said he could get 25 or 100 votes, but “more likely I’m going to lose, I don’t really know.” In the event that he wins, he has prepared an inaugural address and is “absolutely confident” he could attract the best and brightest to a Milne administration at the drop of a hat. Milne also dismissed the idea that it would be difficult to prepare a budget at the last minute. “It’s much more of a management problem that needs to get worked through,” he said.
If elected by the Legislature, Milne will overturn the popular vote. He says his decision to wage a legislative campaign will not lead to the future disenfranchisement of voters, in fact he believes more Vermonters would be inclined to vote to make sure someone gets 50 percent.
Shumlin says he has not lobbied individual lawmakers. Leaders of the Democratic caucus in the House and Senate say they are not encouraging their members to vote one way or the other. John Campbell, the Senate President Pro Tem, says he supports Shumlin, but he is not going to twist any arms.
Sarah Copeland-Hanzas, the new majority leader in the House, said: “We’re not whipping the caucus in any sense of that word. I don’t really see it as the job of House Democrats to influence the outcome of the governor’s election. We would like to get started on the people’s business so we can concentrate on moving forward.”
A new precedent with potential consequences
Milne’s candidacy in a election in the Legislature for what has historically been a pro forma ratification process sets a new precedent in modern history that could lead to unintended consequences for future elections, experts say.
For example, in a three-way race in which a Progressive candidate won 8 percent of the vote, a Democrat got 44 percent and a Republican garnered 46 percent and other candidates received 2 percent, the Democrat could refuse to concede and seek election in the Legislature, according to Eric Davis, a retired political science professor from Middlebury College.
“Say we have a Democratic candidate who narrowly wins second place and a Progressive who gets 8 percent, will the Democrat concede once the canvassing report is issued, or would the Democrat say, if you combine my vote with the Progressive vote clearly voters are not supporting the Republican candidate,” Davis said. “I think it’s interesting to consider and important. Milne’s breaking of the precedent of concession once the canvassing committee results have been reported means others can and may do the same thing in future.”
While Davis says he is “quite sure” Shumlin will be elected on Thursday morning, he says for reasons of accountability and transparency it’s important for voters to know how the Legislature voted. While tradition stands that lawmakers vote by secret ballot, Davis says he hopes someone will ask for a roll call vote, in which lawmakers must stand and publicly declare an aye or nay vote on the floor.
Milne’s candidacy also sets up a soul-searching scenario for lawmakers. Are they obliged under the law to act as delegates or trustees? That’s the question that haunts retired state archives director Gregory Sanford.
If they consider themselves to be delegates, Sanford says, they are obliged to vote the majority view of their constituents, as Milne is asking them to do. If they are trustees, they have an obligation to use their judgment, “bolstered by testimony and discussion, to vote for what they understand to be the greatest public good — regardless of the vote of their constituents.”
Sanford cites an example of a Republican who sought passage of an amendment to the Constitution to allow women the right to vote. Henry Powers of Morristown succeeded in getting a suffrage amendment proposed to the Constitution, but when he was elected as a delegate to the constitutional convention (then required) to consider proposals of amendment, his constituents instructed him to vote against the suffrage amendment.
In a speech to new members of the Legislature in November, Sanford posed a rhetorical question for lawmakers: Should Powers have acted as a delegate and voted against the proposal, or as a trustee and used his judgment and knowledge to “support what he clearly thought was for the greater good.”
The civil unions vote in 2000 is another example of the tension between the delegate and trustee models. In cases where lawmakers voted as trustees and supported civil unions for gays and lesbians against the wishes of their constituents, they did so at their own political peril. Rep. Marion Milne, Scott Milne’s mother, was one of the lawmakers who lost her seat because of her vote for civil unions.
A short history of contentious legislative gubernatorial elections
The gubernatorial election has gone to the Legislature 24 times, according to Sanford, and in modern history, lawmakers have supported the top vote-getter. In the 18th and 19th centuries, the plurality winner of the governor’s race was not elected because of special circumstances.
In 1789, incumbent Gov. Thomas Chittenden won 44.1 percent of the vote while Moses Robinson, his challenger received 26 percent in the general election. Lawmakers chose Robinson because they were unhappy with Chittenden’s decision to grant a town charter without legislative approval. That didn’t stop voters who supported Chittenden again in the following election, Sanford said.
In 1835, William Palmer, the incumbent governor, won 46 percent of the vote to William Bradley’s 38 percent in the general election. The Legislature, which had representation from multiple parties, failed to elect a governor after 63 votes, and the lieutenant governor served as governor.
Multiple competing parties in 1853 again led to a difficult legislative gubernatorial election. The incumbent Whig governor got 44 percent of ballots cast in the general election, the Democrat received 38 percent and the Free Soil candidate got 17 percent. The Democrats and Free Soilers formed a coalition to elect the Democrat, after 26 failed ballots on the floor.
The last time the Legislature chose a non-plurality winner was in the 1976 lieutenant governor’s race between T. Garry Buckley, a Republican, John Alden, a Democrat, and John Franco, from the Liberty Union Party. Alden was the top vote-getter. He was also under investigation for insurance fraud, and lawmakers who were aware of the probe chose Buckley in his stead.
Sanford says these legislative elections had consequences. After the 1835 failure to elect a governor in the Legislature, lawmakers amended the Vermont Constitution and created a state Senate “in hopes that a bicameral body would better avoid such impasses.” The Free Soil Democrats disappeared after 1853, “the Republican Party emerged, and the Democrats would not regain the governorship for 110 years.” Buckley was never again to hold statewide office.
Sanford says the Constitution is silent on the question of concession. “It simply says the joint assembly shall select among the top three vote getters.” It is possible, for example, for a candidate to concede and still be elected. That candidate could then refuse election and leave a vacancy the Legislature could not fill, Sanford says.
Amending the constitution
The legislative election of statewide candidates is an arcane provision in the Vermont Constitution that should go the way of the dodo bird, Davis and Sanford say.
Vermont is the only state in the country in which a joint assembly of the Legislature determines the outcome of a statewide election in the event that a candidate fails to get a majority (50 percent, plus one vote) of ballots cast in an election. Mississippi has a similar law that punts the decision to the House of Representatives, Davis says.
“I hope that the next time the Constitution is open for amendment, the Legislature will seriously consider getting rid of the legislative election,” Davis said.
“If there is a proliferation of parties or the Progressives and Libertarians become more active in getting support, a viable candidate could win by 26 percent. Is that enough of a mandate, an expression of public will?” Sanford asks.
The Constitution could instead allow for candidates to win a plurality in an election; require a runoff between the top two candidates if no one gets 50 percent or more; or move to instant runoff voting, in which voters rank their preferred candidates.
It turns out that the Senate, which must start the process, can propose amendments to the Constitution every four years, and 2015 happens to be one of those years, according to Sen. Bill Doyle, the oldest-serving member of the Legislature.
Doyle says he is prepared to offer a proposal to amend the Constitution in the coming session. If he does, it will be a reprisal of his first attempt in 1974 when he sought to amend the Constitution to allow a top vote-getter with a plurality of 40 percent or more to win statewide office. The amendment included four-year terms for all statewide officeholders and lawmakers. It failed in large part, Doyle says, because of a backlash in the wake of Watergate. Trust in public officials was at an all-time low and the idea of extending terms was not a popular idea at the time.
There have been 10 proposals over the last 45 years to replace the requirement for the majority election of governor, lieutenant governor and treasurer. All have failed to gain traction, according to the Secretary of State’s website.
Constitutional amendments must be approved by two-thirds of the Senate before being sent to the House where they can be approved by a majority vote. At that point, an election cycle must pass before the Legislature takes up the amendment again. If it is approved a second time by lawmakers, it then must be ratified by voters, according to the Secretary of State’s website.
