Wait, The Legislature Is Choosing The Governor?

Nov 6, 2014

If you’re one of the Vermont voters who turned out in this year’s elections  - the Associated Press reports Tuesday’s turnout was the lowest in decades -  you might be surprised to find out that  your vote for governor is not the final action.

That’s because votes cast on election day won’t ultimately decide the winner of the gubernatorial race. The winner will formally be chosen by a joint assembly of the House of Representative and the Senate in the statehouse in January.

According to the Vermont Constitution and laws passed throughout the state’s history, when candidates for governor, lieutenant governor and treasurer fail to win a majority of votes, the legislature decides the race.

Gov. Peter Shumlin got the most votes, but he only received 46.4 percent of votes cast. That means that according to the Vermont Constitution, “…the Senate and House of Representatives shall by joint ballot …  (elect) .. one of the three candidates for such office (if there be so many) for whom the greatest number of votes shall have been returned.”

The last time lawmakers didn't choose the first-place gubernatorial candidate was 1853.

In this case, that means the Legislature could pick Shumlin, Republican Scott Milne or Libertarian Dan Feliciano as governor. Feliciano came in third place with just 4.4 percent of the vote.

Even though the election isn’t technically decided until January, Shumlin declared victory Wednesday. While some - including Milne - have called the declaration premature, Shumlin does have history on his side.

Of the 23 gubernatorial races that have been decided by the Legislature in Vermont’s history, lawmakers chose the top vote-getter 19 times. The last time lawmakers didn’t choose the first-place gubernatorial candidate was 1853.

But Milne points to a more recent case, although the fact pattern is quite different. In 1976, Democratic lieutenant governor candidate John Alden won the election, but by less than 50 percent. (Liberty Union candidate John Franco denied him the majority. ) But the Republican-controlled Legislature -- perhaps motivated by rumors that Alden would soon be indicted for insurance fraud -- rejected Alden and voted for the GOP's T. Garry Buckley.

Milne said Thursday  that he’s looking into how many legislative districts voted in favor of him to see if he has a good chance of winning based on lawmakers voting with their constituencies, even if that means voting against their own party.