Picture this: The November 5 governor's election results in an unexpectedly close finish between Republican Jim Douglas and Democrat Doug Racine, with Douglas nosing ahead of Racine by less than one percentage point. And because independent candidate Con Hogan got 10 percent of the vote, Douglas has failed to capture a popular majority.
Under the Vermont Constitution, the outcome must be determined by the members of the State Legislature elected in November. Frenetic closed-door politicking takes place in the two months leading up to a January showdown in the 180-member General Assembly, which has an almost equal number of Republicans and Democrats.
When the lawmakers' secret ballots are counted, the spectating public is stunned to see that Douglas and Racine are tied 90-90. And so the presiding officer, Vermont's lieutenant governor, gets to cast the decisive vote.
But in this case -- because the November election for lieutenant governor did not produce a majority winner, either -- the presiding officer is the still-incumbent lieutenant governor: Doug Racine. He proceeds to, in effect, elect himself governor of Vermont -- even though the people of the state have cast more votes for Douglas. The news media call it "a crisis of legitimacy."
Many factors make such a scenario far-fetched. Racine, for example, has promised that he will not contest in the Legislature a vote in which he finishes second. Douglas has given no such assurance. But the Constitutional mechanics do allow it. Such a blatant miscarriage of democracy is, in theory, entirely possible in Vermont.
The will of the citizenry, as expressed at the polls, can be -- and has been -- frustrated in less outlandish ways. Since Vermont became a state in 1793, the General Assembly has decided the outcome of more than 70 statewide races. On about half a dozen of those occasions -- most recently in 1976, during contest for lieutenant governor between T. Garry Buckley and John Alden -- legislators chose someone who had not received the largest share of the popular vote.
Nothing so weird as a Racine-Douglas tie is required in order for that to happen. The Constitution allows lawmakers to vote for whomever they wish in complete secrecy. Some may ignore their own party affiliation and vote the way the largest number of Vermonters did on election day. Others might prefer to base their choice on the outcome of the popular vote in their own legislative district. And a few might act on a purely partisan basis, supporting the candidate of their respective party -- and to hell with the voters.
Polls suggest that no candidate in either the governor's or lieutenant governor's race is likely to win a majority this year on November 5. That means there's some chance -- small, but hardly infinitesimal -- that one or both those offices will be awarded to a candidate who finished second, or even third, in the popular vote.
Most Vermonters appear opposed to a system under which 180 politicians, rather than 300,000 or so voting citizens, have the final say in elections involving three or more strong candidates. In a poll recently conducted for Vermont Public Radio, 52 percent of respondents disapproved of vesting such power in the State Legislature, while only 32 percent approved. At least three local political scientists and one scholar of the Vermont Constitution don't think much of the current set-up, either.
"It's a travesty," declares Bill Grover, a political science professor at St. Michael's College. "The framers of the Vermont Constitution didn't envision a three-party system. But that's what we've got now in this state and that makes it likely the legislature will regularly be deciding who wins and who loses elections. That's not very democratic."
Eric Davis at Middlebury College and UVM's Frank Bryan also favor reforms, though neither condemns the current procedure as strongly as Grover does. Bryan, for example, notes that in a parliamentary system, elected legislators always get to choose who becomes prime minister -- "and no one calls parliamentary systems undemocratic," remarks Bryan, the author of several books on Vermont topics. But there are good reasons to insist that top officeholders in Vermont must earn a majority, not just a plurality, and it should be up to the people, not their elected representatives, to produce that majority, Bryan adds.
To Davis, the legislature-decides-it provision of the Vermont Constitution is an anachronism. "It reflects a time that's long gone -- the time before there was broad popular participation in politics." In fact, Vermont appears to be the only state in the country whose Constitution retains such a clause, according to Peter Teachout, a constitutional expert at Vermont Law School. And like the political scientists, Teachout thinks a different system should be adopted.
Trouble is, the Green Mountain State's Constitution is also one of the hardest in the country to amend, notes Vermont state archivist Gregory Sanford. Efforts to change the document can be blocked right at the start by no more than 11 of Vermont's 30 state senators.
As the first step toward revising the Constitution, two-thirds of senators must endorse a proposed amendment. Next, the House must approve the proposal by a simple majority. Then, a two-year election cycle must be completed before both chambers have to vote once again to endorse the same proposed amendment. Finally, the matter goes before the Vermont electorate in a statewide referendum.
Not surprisingly, Vermont's Constitution has been amended fewer times than any other state's, Sanford says. Some advocates of alternatives to the current system say that their particular approach may require only passage of a law, not a Constitutional amendment, in order to take effect. But it seems unlikely that legislators would cede one of their powers embedded in the Vermont Constitution without insisting that the document itself be changed.
Proponents of reform favor various solutions to what they all regard as the problem of allowing the legislature to pick winners when no candidate for governor, lieutenant governor or state treasurer gets at least 50 percent on Election Day. Middlebury's Davis, for instance, would like to see the electorate choose among the top two vote-getters in a runoff election to be held two weeks after the general election. That option, however, involves additional expense and, according to some of its critics, is not as ideally democratic as what's known as "instant runoff voting." Grover, Bryan and Teachout all endorse this alternative.
Under a common form of IRV, voters presented with a choice of more than two candidates are asked to mark their ballots with their first, second and third or more preferences. If no candidate wins a majority of first-choice votes, the lowest vote-getter is eliminated. The second choices indicated on those ballots are credited to the remaining candidates. The process continues until one of the candidates receives more than 50 percent.
A variation on this method of choosing winners has been in effect for City Council elections in Cambridge, Massachusetts, for several years. It is also used in Ireland, Australia and a few other parliamentary democracies. Voters in San Francisco decided in a March referendum to apply instant runoff voting to most municipal elections. And more than 50 Vermont towns expressed support for the principle of IRV on Town Meeting Day this year. Alaskans rejected a similar initiative by a wide margin last month.
IRV is generally favored by members of newer parties, including many Vermont Progressives, because it voids one of the main arguments used against voting ideologically rather than pragmatically. Those who favored the politics of Ralph Nader in last year's presidential race, for example, often heard that votes for Nader would spoil Democrat Albert Gore's chances of defeating George W. Bush. With the preference method available, first-choice Nader voters could have listed Gore as their second choice, ensuring that the Democrat would receive their support once Nader was eliminated.
IRV advocates believe that election turnouts would increase if voters were freed from the "spoiler" constraint and no longer felt obliged to choose a lesser of two evils. They also argue that this form of voting discourages negative campaigning and favors coalition-building, since candidates are less likely to risk alienating those who support one of their rivals.
Some critics oppose IRV precisely because it would encourage the proliferation of minor-party candidates -- which, they say, would make an inherently complex voting system even more confusing. IRV detractors have also charged that a ranking of preferences violates the principle of one-person-one vote.
Whatever the merits of IRV or separate runoff elections, a crisis of legitimacy may indeed be what it takes before Vermonters consider such alternatives in more than merely theoretical terms. Only if the legislature were again to elect a candidate who finished second in the popular vote, some analysts suggest, would the demand for Constitutional change reach critical mass.
History suggests the pressure for reform recedes as time passes. After all, it's been less than two years since George W. Bush finished second in the popular vote, but the initially loud call for abolishing the Electoral College has already faded to a whisper.
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