Origin of the 50-percent rule hazy but unlikely to affect popular vote outcome

By Brent Hallenbeck -- Free Press Staff Writer

Thursday, November 07, 2002

MONTPELIER -- Perhaps it was a concern that the voting public of Vermont wasn't ready for unvarnished, one-man-one-vote democracy.

Perhaps it was a desire to leave the decision of who will run the state in the hands of the state's most trusted, sagacious men.

Maybe it was a matter of mathematics -- if three candidates each earn a third of the popular vote, how can that represent the will of the people?

Whatever reasons the 18th century creators of Vermont's Constitution had, their requirement that some candidates for statewide office receive 50 percent of the vote -- or have their races decided by the state Legislature -- is playing itself out more than two centuries later.

The state Constitution specifies that candidates for governor, lieutenant governor and treasurer receive a majority of the public vote. Usually, but not always, legislators choose the candidate with the most votes.

With Jim Douglas and Brian Dubie failing to receive more than half of the vote for governor and lieutenant governor, respectively, they must wait until the new Legislature takes over in January to find out for sure that they won their races. Because the runners-up said they don't want to be vaulted over the front-runners, the vote by the Legislature should have all the drama of a rubber stamp.

Vermont and Mississippi are the only two states that require candidates to earn more than half of the vote total, said Tim Storey of the National Conference of State Legislatures. The other 48 states require only that a winning candidate receive more votes than his opponents -- not necessarily more than half of those cast. Vermont is the only state that allows legislators to vote for candidates in secret.

Mississippi's rule, from 1890, was seen as an attempt by post-Reconstruction-era legislators to ensure that blacks would not be elected to statewide office. The origin of Vermont's 50-percent rule is more noble than that.

Peter Teachout, a professor of law at Vermont Law School, said the rule reflects a late 18th-century attitude that legislators were the wisest, most virtuous members of their communities who could be trusted to make momentous decisions.

The rule might also reflect that era's general distrust of raw, popular democracy. "The idea of one man and one vote is a philosophy that comes into its own really in the middle of the 20th century," Teachout said.

State archivist Gregory Sanford said the 50 percent rule was common in other states in the 1700s. Vermont previously included the statewide positions of attorney general, auditor and secretary of state in that rule. Sanford said there are no records of what was going through the minds of those who approved the Constitution in 1793.

"Obviously it's, 'How do you determine what is the will of the people?'" Sanford said. He said early legislators must have wanted a mechanism for a more definitive result if three candidates each received 33 percent of the popular vote.

Some legislators said before Election Day that they would make their votes on this year's races public. The Constitution requires that the vote be taken by "joint ballot" of the full Legislature.

"That has always been understood to be by secret ballot," Teachout said, much as votes by the public are secret. He said that lets legislators vote free of party pressure, fear of retaliation or hope for reward.

Teachout said Vermont's continued attachment to the majority requirement might be a passive act, not an active one.

"I don't think it's an expression of Vermont cussedness or independence," he said. "I just don't think anybody felt the pressure to do anything about it."

Sanford cited three unsuccessful efforts in the past quarter-century to change the 50 percent rule, and he expects another attempt in the Legislature in light of this year's election. That could include a proposal for "instant runoff" voting allowing voters to rank their choices in order so elections officials could determine which candidate has the most support.
Contact Brent Hallenbeck at 660-1844 or bhallenb@bfp.burlingtonfreepress.com