Peter Galbraith: Legislators should opt for an open ballot for governor - VTDigger
 

Peter Galbraith: Legislators should opt for an open ballot for governor

Editor’s note: This commentary is by Peter W. Galbraith, who is an outgoing Democratic senator from Windham County.

On Thursday, Vermont legislators will choose our next governor. This is, arguably, the most important vote the Legislature will take this biennium. The public is entitled to know how their elected representatives voted. But, if past practice prevails, the vote will be taken in secret. The Legislature can fix this by making a simple rules change when it first meets on Wednesday.

Although Gov. Peter Shumlin edged Scott Milne by a few thousand votes, neither candidate received a majority of the vote and, under the Vermont Constitution, it falls to the Legislature to elect the governor “by joint ballot.” The Legislature has chosen to interpret the phrase “by joint ballot” to mean a secret ballot but there is no historical basis for such an interpretation.

In the 18th and early 19th century, voters cast their votes openly. Voters did not get ballots from town clerks but directly from their preferred candidate. And, because candidates often used different colored paper, it was easy to know how one voted. The secret ballot was invented in 19th century Australia to take care of the particular circumstances of a country inhabited by emancipated convicts. Thus, when the deputy clerk of the House tells members that the Vermont Constitution requires an Australian ballot, he cannot be right. When Vermont adopted its constitution, there was no Australia. Europeans had just discovered the land mass, had yet to agree on a name and there were no settlers.

In reality, the secret ballot will protect only liars — those who say they are voting one candidate but actually vote for another.

 

The Legislature can opt for openness when it convenes on Wednesday.

Immediately after swearing its members, the House and the Senate separately adopt rules for joint sessions. It is in order for any member to propose a rule requiring that the vote for governor be by open ballot. This then can be debated and voted on.

As always, there will be opposition to change. It will be argued, for example, that the Vermont Supreme Court has ruled in favor of a secret ballot. But, the only case on record is a 19th century case that affirmed the right of an individual voter to an Australian ballot and this cannot — and should not — be a precedent for saying that elected legislators are not accountable to their constituents for one of the most important votes of the biennium. Article 6 of the Vermont Constitution gives the Legislature scope to establish its own rules and it is highly unlikely that the Supreme Court would second-guess a decision in favor of openness. (And, if it did, the remedy would be to rerun the ballot in the Legislature.)

Representatives and senators cannot easily duck questions from constituents about their vote for governor. I suspect that almost every legislator has — or will have to — disclose her or his vote. In reality, the secret ballot will protect only liars — those who say they are voting one candidate but actually vote for another. We can speculate as to whether the liar vote will benefit Gov. Shumlin or Mr. Milne. In my experience, Vermont legislators are people of integrity so I don’t think transparency will have an affect on the outcome of the election. In any event, there should be no right — constitutional or otherwise — for legislators to lie to their constituents.

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  • John Perry

    The secret ballot exists, not because of the invention of Australia, but to protect the voter from intimidation (think ku klux klan, think krystalnacht in the Weimar republic) or reprisal (think Boston mafia under Whitey Bulger) for voting the “wrong” way. The intimidation comes from the poll watchers, and the reprisal comes after the fact from bullies and thugs (think Koch brothers).

    The fix comes from deciding how we want democracy to work. The secret ballot for governor in the VT legislature protects the legislators from intimidation and reprisal, both of which are in evidence from the expensive advertising going on now. Imagine how it would be if your employer got to see how you voted? Or if your child’s teacher got to see how you voted on the school budget?

    We can eliminate the electoral college by defining the percentage of plurality required for election. We can also do that with a runoff for the top two candidates. But a “rules change?” Talk about a backroom deal.

    It saddens me that Mr. Galbraith presumes that legislators are bound to be liars.

    • Jim Christiansen

      If one follows this logic, the Vermont tradition of Town Meeting and votes cast from the floor are subjecting Vermonters to undue reprisal, intimidation and thuggery.

      Without evidence, fear mongering does not serve Vermonters.

      Lastly, due to Town Meeting, my child’s teacher or employer can know how I vote on the school budget or Town budget.

    • Senator Peter Galbraith

      I agree that the secret ballot is vital to democracy. But, as a matter of historical record, it emerged in Australia. It did not exist in Vermont when the procedures for electing our governor “by joint ballot” of the legislature were written and therefore the use of “ballot” in our constitution cannot mean secret ballot.

  • victor ialeggio

    ‘The Legislature has chosen to interpret the phrase “by joint ballot” to mean a secret ballot but there is no historical basis for such an interpretation.’

    Temple v. Mead (1832)?

    Hold your nose today; Doyle amendment tomorrow.
    I don’t like the stutus quo any more than anyone else does but a rules change at the opening bell stinks of Bush v Gore.

    • victor ialeggio

      hmmm. “status quo” or “stultus quo?”

    • Senator Peter Galbraith

      Temple v Mead affirms the right of an individual voter to a secret ballot. It says nothing about the right of legislators to hide their votes from the people who chose them.

      The two cases are entirely different. Of course an individual has the right to vote in secret. But, voters are entitled to know how the people they elect vote. If important votes in the legislature are secret (and there is no more important vote than choosing the governor), then how can a citizen decide at election time if she is well represented?

      • Bruce D. Cunningham

        The following is in Joint Rules

        “III
        JOINT ASSEMBLY
        8. A Joint Assembly shall be formed by a union of the Senate and the House of
        Representatives in the hall of the latter, at such times and for such specific
        purposes only as may be expressed in a joint resolution of both houses; and may
        adjourn from time to time during the session of the General Assembly. The
        President of the Senate shall, in all cases, preside; and the Secretary of the
        Senate, or in the absence of the Secretary, the Clerk of the House, shall officiate
        as clerk. The rules of the Senate as far as applicable shall be observed in
        regulating the proceedings of every Joint Assembly.”

        In Senate Rules, roll call will be done on the request of any senator. This seems to say any senator can require a roll call in a joint session. Is that not so?

      • james willey

        Dave Mathews offers this food for thought:
        –… 2014 was different, and now the debate is more complex. This off-year election featured a campaign-savvy and seasoned sitting governor loaded with money, up against a totally inexperienced political neophyte, who appeared to the public as stepping up to take one for the GOP team and who was far from confident of any victory.–
        He goes further to state that Milne’s stumble-start campaign picked up the momentum to propel him to a near win that reflected the voters’ discontent with the status quo, hardly unnoticed by the Legislature.

        Whether those voters possess short memories will become apparent should transparent balloting in Montpelier occur, as it should.

      • victor ialeggio

        So–a legislator votes first as an individual in a general election, and therefore secretly. Subsequent votes taken in assembly, however, are to be taken openly, either as a delegate or as a trustee. Which should it be, in your opinion?
        And should only some subsequent votes in assembly be taken openly? What would guide that determination? (I am not posing this questions rhetorically, by the way.)

        Look: I think many of us are on the same page concerning a) an antiquated, inadequate guide to settling the question of no clear majority in a gubernatorial election and; b) rank displeasure with the less-than-transparent incumbent administration as well as with the substance-free administrative posturings of a hapless challenger. As I said above, hold your nose today, amend the law tomorrow.

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