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