Wait for the dust to settle around the General Election

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(Host) With the election just a week away, commentator Cheryl Hanna is wondering what will happen if none of the three major candidates for governor receives a majority of votes.

(Hanna) Under Vermont’s constitution, if any candidate for the office of governor, lieutenant governor or treasurer doesn’t receive more than 50% of the popular vote, the General Assembly chooses the winner by secret ballot. This has made the Vermont Constitution one of the hottest topics of the day.

Although it isn’t a new problem. No candidate has received the majority of votes twenty-one times in Vermont history, most recently in 1986, when Democrat Madeline Kunin received only 47% of the popular vote. Most often the legislature has elected the person who received the most votes – what’s called the plurality candidate – although it isn’t required to do so.

And that has Democrats concerned. They fear that even if Doug Racine receives the plurality of votes, a Republican-controlled Legislature might elect Jim Douglas anyway. What should happen is currently being debated by just about everyone. And let me just say: I love it!

With campaign finance reform, the growing popularity of the Progressive Party, and more independent candidates like Con Hogan seeking office, it’s likely that no one person will get the majority of votes in more and more elections. That’s why this is probably the most important debate going on in Vermont today. It’s not just about who gets elected in 2002. It’s really about what democracy is going to look like in Vermont in the twenty-first century.

That said, efforts by some on both sides of the political fence to resolve these issues by a kind of advance gentleman’s agreement, as it were, are premature and show a lack of respect for the Vermont Constitution. Some legislators may vote along party lines, others will choose the plurality candidate, a few might pick the candidate who received the most votes from their district, and maybe someone will simply vote for the person they think will do the best job. The constitution says it’s their choice, and each choice is consistent with larger democratic principles.

Legislators have the right to wait until after the election to decide how they’ll vote. In the meantime, no candidate should feel pressured to announce defeat based on hypothetical outcomes. Nor should voters feel compelled to vote anything but their conscience.

Maybe the election should automatically go to the plurality candidate, although keep in mind that if he or she receives, say 40% of the vote, that means that 60% of voters chose someone else. Maybe we should have run-off voting so people don’t feel that they’re wasting their vote on third party or independent candidates. Or maybe we should leave things as they are. But these are questions that need a lot more public dialogue, and not in the midst of a hotly contested race.

History and experience may compel us to amend the constitution – or maybe not. But we should debate this after the election dust settles, however it settles.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.

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