Editor’s note: Jon Margolis is VTDigger’s political columnist.
[I]f only the past 64 days of Vermont politics could be described as ridiculous.
There is something honorable about being ridiculous. That which is ridiculous is worthy of being ridiculed. Ridiculing – whether its object is a person, a process or a situation – requires a bit of effort.
Little or none of which was needed to describe Vermont politics from Nov. 5, the day after the general election, to Thursday morning, when the Legislature elected Democrat Peter Shumlin to a third term as governor of Vermont.
In most of the country – and to most Vermonters – Shumlin was re-elected Nov. 4, when he beat Republican challenger Scott Milne by more than 2,400 votes.
But because of a peculiarity in the Vermont Constitution, the Legislature had to confirm (or reject) that verdict.
This peculiarity does not rise to the level of ridiculous. It is just plain silly. And so – despite the claims of Milne and some other Republicans that the whole post-election election served the state well – was the entire process.
Everybody knew from election night on what the outcome would be. But because this constitutional peculiarity meant that there was some theoretical doubt – after all hadn’t those election results been much closer than predicted? – the “contest” that ended Thursday had to be discussed, had to be covered as a news story, though it really was not a “contest” at all.
In considering the silliness of the process, start with the absurdity of that provision (Chapter II, Section 47) which declares that unless a candidate for governor (or lieutenant governor or treasurer) gets a majority of the vote, that candidate has not really been elected.
That provision is in the state constitution because … well, because it always has been, since Vermont’s first constitution was drafted in 1777 (when Vermont was a self-proclaimed Republic, not a state) and retained in the constitution drafted two years after Congress accepted Vermont as a state in 1791.
It was in a few state constitutions back then because Vermont was not the only state that pretty much rewrote Pennsylvania’s model, said emeritus Middlebury College political science professor Eric Davis. Then, as now, it was easier to crib somebody else’s work than to start from scratch.
But over the past 240 years or so, Pennsylvania and its other imitators have wised up, or perhaps grown up, another way of saying they became less silly.
Those other states just inaugurate the candidate who gets more votes than the other candidates, the norm in American democracy. One state, Mississippi, actually adopted a similar (though not identical) provision in 1890. But Mississippi had its own special reason. It was trying “to build an additional barrier to the possibility of a black candidate being elected governor,” in the words of a well-informed Mississippi political figure who did not want to be identified.
Needless to say, Vermont’s constitution writers had other motives. Nobody knows for sure what they were. Like the guys who wrote the U.S. Constitution in Philadelphia (sorry ladies, they were all guys back then; you non-guys couldn’t even vote), the Vermonters who drafted the state charters met behind closed doors and kept no official transcripts.
But the three Vermonters whose guess is better than anyone else’s – Eric Davis; retired State Archivist Gregory Sanford; University of Vermont political science professor Garrison Nelson – agree that the main reason was that 18th century Americans were very wary of the power of the executive.
That’s why, Nelson said, they developed “state political systems with weak governors.”
No wonder they feared the executive. To an 18th century American, “the executive” meant “the king,” and kings were known to throw their weight around. By then the powers of the kings of England were no longer absolute. Even if the king shouted “off with his head,” he could not be certain that anyone’s head would come off.
But he could hope.
There are no kings here. Not that there’s no reason to be wary of the power of the executive. There’s a reason to be wary of the power of anybody. But the governor is not a king. There are all these checks and balances now: an independent judiciary; federal and state bills of rights; a free press; a bicameral legislature in which the members of each house are jealous of the powers of the other. Governors cannot order anyone beheaded.
This constitutional provision, then, is an anachronism, which must be followed but need not be highly regarded just because it is in the constitution.
And in fact it has not been. Instead, for the past hundred years or so, Vermont politicians effectively repealed Section 47. Whoever finished second in November’s election always conceded. In recent years (in non-recent years Republicans were so dominant their candidate almost always won in a landslide), Democrats and Republicans acted as though Vermont was like the rest of America: the person who gets the most votes wins. The folks who finished second simply did not seek election in the Legislature.
All by himself (because most senior leaders of his own party urged him not to), Scott Milne repealed that de facto repeal. He refused to concede, and sought from the Legislature the victory he had not won at the polls.
He had every right to do this, and at least the hint of a political argument. Combined, he and Libertarian Party contender Dan Feliciano received more votes than Shumlin. And as Milne kept saying, the closeness of the November vote indicated widespread unhappiness with the incumbent.
But American voters – and that includes Vermonters – vote for candidates, not for coalitions. There were several candidates on the ballot, and Shumlin got more votes than any of the others. In most places – and until now even in this place – that’s the end of the campaign.
So now there have been two campaigns, and the point of the second one was … well, that’s open to discussion. Milne and other Republicans argue that it was all worthwhile because more people got involved in the political discussion.
If true, that’s something of an indictment of Vermonters. The way the American political system works, voters are expected to get involved in the political discussion before they exercise the privilege and responsibility of casting their own votes instead of awaiting what was always going to be what it turned out to be – a meaningless sideshow.
It would not have been had Milne gotten more votes on Election Day and Shumlin challenged the outcome in the heavily Democratic Legislature. That would have posed an interest challenge to Democratic lawmakers. But that’s not what happened.
Like the close vote in November, the 110-69 tally in the Legislature was hardly a ringing endorsement of Shumlin’s tenure. Professor Nelson said “The Legislature gave Shumlin the mandate the voters did not,” meaning the governor owes the legislative leaders more than they owe him.
Even so, it was not a huge mandate. But those final numbers may not mean much. Republican legislators, most of whom come from districts that Milne won, could please their constituents by voting for him secure in the knowledge that he had no chance of actually becoming governor.
Perhaps it’s best not to take seriously the choices made by an elected official engaged in a process that doesn’t rise to the level of the ridiculous.
