Instant runoff backers differ with
By David Mace, Associated
February 28, 2003
MONTPELIER--Supporters of the law
that would implement instant runoff voting for the election of the
state's highest offices are disputing Vermont's attorney general,
who said such a change would require a constitutional amendment.
And they got a boost Thursday from a constitutional
law scholar, who told the Senate Government Operations Committee
that technically the law might not violate the Vermont Constitution
and might survive a challenge to the Vermont Supreme Court.
But some senators said they still believe that
instant runoff voting, or IRV, is such a drastic change from the
current voting system that it should go through the cumbersome
process of amending the Vermont Constitution.
’ÄúMy fear is we’Äôre going to have the Supreme Court
deciding who is governor or who isn’Äôt governor,’Äù said Sen. Ann
Cummings, D-Washington, who said she supported the concept of IRV.
’ÄúThis is a major change and it should go through the constitutional
At issue is a bill sponsored by Sen. Susan Bartlett,
D-Lamoille, and a handful of Democratic colleagues that would change
election law by having IRV applied to all statewide races.
Currently, the Vermont Constitution requires that races for
governor, lieutenant governor and treasurer be decided by a secret
vote in the Legislature if no candidate gets more than 50 percent of
Under Bartlett’Äôs bill, voters would mark not only
their first choice, but also whom they’Äôd pick as a second choice. If
no candidate in the first round of counting gets more than 50
percent, all candidates but the top two would be eliminated and
election officials would look at the second choices, if any, of
voters whose first choice is eliminated.
Those votes would be given to the second-choice
candidate the voter indicated. If after those votes have been added
to the remaining candidate’Äôs totals, no one has topped 50 percent,
the race would still be thrown into the Legislature.
Supporters claim the system will avoid the problem
of having a candidate win who was opposed by a majority of voters,
and eliminate the ’Äúspoiler’Äù charge sometimes leveled at third party
candidates. In November, Gov. James Douglas won with 44.9 percent of
the ballots cast while Lt. Gov. Brian Dubie was victorious with 41.2
percent, but both of their Democratic challengers, Douglas Racine
and Peter Shumlin, conceded rather than push the contests into the
But earlier this week, Attorney General William
Sorrell, a Democrat, issued an opinion that implementing IRV through
a bill like Bartlett’Äôs would require a change in the constitution.
IRV proponents said Thursday that Sorrell was being ’Äúhyper-literal’Äù
in his reading of the constitution.
’ÄúWith due respect to the office, it struck me as
more of an advocacy piece than analytical,’Äù Christopher Smart, a
former lawyer who lives in Montpelier, told the committee.
He argued that following Sorrell’Äôs logic, several
other sentences in the same section of the constitution could be
construed to bar absentee ballots, require voters to write out the
names of candidates, invalidate the role of local election
officials, and require lawmakers themselves to count the ballots.
Smart said the runoff provisions would be executed in such a way as
to not violate the requirements of the constitution. But a
constitutional scholar, Professor Peter Teachout of the Vermont Law
School, said that it was up to the Legislature to decide on its own
whether it believed a particular bill was constitutional.
And in doing so the Legislature should consider just
how big the changes were from the current system, he said.
’ÄúI agree with a lot of what Mr. Smart said,’Äù
Teachout told the panel. ’ÄúBut I disagree with the approach that
says, ’ÄòPass the bill, because it’Äôs for the Vermont Supreme Court to
decide the constitutionality of issues.’Äô’Äù
While he acknowledged the law on its face stood a
good choice of passing a constitutional challenge to the Supreme
Court, he predicted there would almost certainly be one by a
third-place finisher, who under current constitutional law can be
considered when the Legislature decides a race but who’Äôd be
eliminated under Bartlett’Äôs bill.
Several senators said they favored IRV over the
current system, but that it should be considered as an amendment ’Äî
requiring votes in two separate Legislatures and a referendum by the
public ’Äî rather than as a change in law that could be undone by
another General Assembly.
’ÄúIf it’Äôs going to be challenged, I’Äôd rather see us
do it the right way first,’Äù said Sen. Jeanette White, D-Windham. ’ÄúIf
there’Äôs already distrust about our ability to choose a governor and
lieutenant governor then certainly there’Äôs going to be distrust
about our ability to decide how to run an election.’Äù
Jesse Rosado, a Montpelier resident and Progressive
candidate for the House who works for the Voter’Äôs Choice Coalition,
a group pushing IRV, said that if an amendment wasn’Äôt needed it
shouldn’Äôt be used, and that his group only wanted to see the bill
debated by lawmakers on the floor. He said passage of advisory votes
at dozens of town meetings and nearly 500 signatures on a petition
demonstrated ample public support for IRV.
That didn’Äôt impress Cummings.
’ÄúWhy, unless you’Äôre afraid you’Äôre going to lose, do
the proponents not want to do it as a constitutional amendment?’Äù she
asked. ’Äú’Ä¶ If we’Äôre going to do this, I think we should do it so this
system has some legitimacy.’Äù
Committee chairman Sen. William Doyle, R-Washington,
has scheduled a public hearing on March 18 on Vermont Interactive
Television that will take testimony on IRV, as well as two competing
constitutional amendments. One, sponsored by Sen. John Bloomer,
R-Rutland, would allow a candidate who got more than 40 percent of
the votes to be the winner and have the top two candidates compete
in a December runoff election otherwise. Another, sponsored by Sen.
Matt Dunne, D-Windsor, would give the Legislature the authority to
determine the election process.
Bartlett said she wasn’Äôt averse to having her bill
converted to a constitutional amendment, or having the results of
IRV be simply advisory to guide the Legislature as a way of avoiding
a constitutional challenge. In fact, she said both could proceed at
the same time.
’ÄúI’Äôd really like to have something in place for the
next election, because I can see us being in the same spot next
time,’Äù she said. ’ÄúWhy not have your cake and eat it too?’Äù
Teachout said after the hearing that because the
Vermont Supreme Court generally won’Äôt issue opinions in advance on
pending cases, it would take an election ’Äî and then a dispute of the
results ’Äî to ultimately figure out whether the law was
’ÄúDo you want to put the Vermont Supreme Court in
that kind of position (where) any way the court decides it’Äôs going
to have the feel of Bush v. Gore, where there’Äôs the perception that
political considerations were part of the ruling?’Äù he asked.