115 STATE STREET, MONTPELIER, VT 05633-5301 PHONE: (802) 828-2231 FAX: (802) 828-2424 STATE OF VERMONT OFFICE OF LEGISLATIVE COUNCIL MEMORANDUM To: File From: BetsyAnn Wrask, Legislative Counsel — Date: November 6, 2014 Subject: Majority vote requirements for Governor, Lt. Governor, and Treasurer PA.") At each general election, the Constitution of the State of Vermont requires the voters to elect the Governor, Lt. Governor, and Treasurer by majority vote (meaning, by more than 50 percent of the vote).1 All other officers on a general election ballot are elected by plurality vote (meaning, by the greatest number of votes).2 If a candidate for the office of Governor, Lt. Governor, or Treasurer does not receive a majority of votes, the Senate and House are required to elect the person to fill that office by joint ballot.' The two bodies, acting in Joint Assembly, must choose "one of the three candidates for such office (if there be so many) for whom the greatest number of votes shall have been returned." "Ballot" has been interpreted to mean secret ballot.3 The Joint Rules of the Senate and House of Representatives require the Joint Assembly vote to be by majority vote.4 The Rules also require that if, after two votes, a person still has not been elected, all nominees except the two having the highest number of votes on the second ballot shall be withdrawn, and the Joint Assembly shall continue until there is an election.4 As of the date of this memo, the last time the General Assembly elected one of these officers was in 2011, after candidates for Governor and Lt. Governor failed to obtain the majority vote in the 2010 general election.5 The General Assembly elected by majority vote the candidates for those offices that received a plurality of the voters' votes.5 Based on the unofficial vote counts of the 2014 general election available on today's date, it appears the General Assembly will be required to elect the Governor for the 2015-2016 term because no candidate for that office received a majority of the voters' votes.6 Historically, when the General Assembly has been required to elect any of these three officers, it has usually — but not always — elected the candidate who received the plurality of the voters' votes.7 2 Vt. Const., Ch. II, § 47, http://www.1ee.state.vt.us/statutes/const2.htm. 17 V.S.A. § 2592(h)(1), http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=17&Chaptet=051&Section=02592. VT LEG #302890 v.1 Page 2 • See also Attachment A, 1/10/91 and 1/7/93 Journals of the Joint Assembly, which refer to a 1/4/9[1] Attorney General Opinion on this issue (opining that the Vt. Const. and statute only require a majority vote for the offices of Governor, Lt. Governor, and Treasurer). • See also the Sec. of State's history on majority voting in Vermont, https://www.sec.state.vt.us/archives-records/state-archives/govemment-history/continuingissues/majority-election-in-vermont.aspx. 3 See Temple v. Mead, 4 Vt. 535 (1832) (Ct. on page 5 distinguishing between voting in the open viva voce and voting by ballot, the "principal object of [which] is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote. . ."). • See also Vt. Const. Ch. H, § 9 (the yeas and nays on questions before either chamber of the General Assembly being journalized upon request of members, "except where the votes shall be taken by ballot"), interpreted by Attachment B, 1954-56 Op. Atty. Gen. 219 (No. 63) (opining that secret ballots are only appropriate when elections are required to be by ballot). 4 Joint Rule 10(c), http://www.leg.state.vt.us/misc/Joint%20Rules.pdf. 5 See Journal of the Joint Assembly of January 6, 2011, pages 10 and 13, http://www.leg.state.vt.us/docs/2012/journal/ja110106.pdf. 6 See the Sec. of State's election results page, http://az357346.vo.msecnd.net/resultsSW.aspx?type=SW&map=MPRC. 7 For example: • Following the 1789, 1813, and 1853 general elections, the General Assembly elected the candidate for Governor who received the second-most number of votes. See VSARA's General Election Results, Governor, 1789-2012, https://www.sec.state.vt.us/media/308153/stofflgov.pdf • Following the 1813, 1853, and 1976 general elections, the General Assembly elected the candidate for Lt. Governor who received the second-most number of votes. See VSARA's General Election Results, Lieutenant Governor, 1813-2012, https://www.sec.state.vt.us/media/308156/stoff2ltgov.pdf. • Following the 1837 general election, the General Assembly elected the third-place candidate for Treasurer who only received 3.4% of the popular vote, but he declined to serve. Following the 1853 general election, the General Assembly elected the candidate for Treasurer who received the second-most number of votes. See VSARA's General Election Results, State Treasurer, 1813-2012, https://www.sec.state.vt.us/media/308141/stoff3treas.pdf. VT LEG #302890 v.1 J U1N.1,4 tua THURSDAY, JANUARY 10, 1991 JUIN 1 HJJ blVIti L Y 240 Scattering Majority for Jeffrey L. Amestoy . . . 82,150 And agreeable to the statutory provisions, it hereby declares JEFFREY L. AMESTOY who received a major part of the votes, to be Attorney General of the State of Vermont for the two years next ensuing. All of which is respectfully submitted. GEORGE B. SPA'ULDING Chairman of the Joint Canvassing Committee on the part of the Senate DONALD M. HOOPER Chairman of the Joint Canvassing Committee on the part of the House Report of the Joint Canvassing Committee Adopted Upon motion of Representative Donald M. Hooper, Co-Chair, the report of the Joint Canvassing Committee was adopted. Opinion of Attorney General Journalized *In delivering his report for the Joint Canvassing Committee, Senator Spaulding addressed the question of whether or not Alexander V. Acebo, having received just 49.6% (but not a majority) of the votes cast, could be declared a victor in the contest for Auditor of Accounts, over his closest rival, Ronald L. Boucher, who had received a total of 41.6% of the votes cast. The Joint Canvassing Committee concluded, that in the absence of any specific Constitutional or statutory mandate to the contrary, Alexander V. Acebo could be declared elected by virtue of having received a plurality of the votes cast and did not need to achieve a majority. "1. The Vermont Constitution (Chapter II, Section 48) specifies that a majority is required to elect only the Governor, Lieutenant Governor, and the Treasurer. As that provision is silent as to the Office of Auditor of Accounts, that constitutional provision does not require a majority to elect candidates to this office. "2.The statutory requirement that a candidate for Auditor of Accounts receive a majority of votes cast (17 V.S.A. §1303), was repealed in 1978 (No. 269, §4(a)). Therefore, there is no existing statutory authority requiring a majority to elect the Auditor of Accounts. "3. A strong argument is presented in 17 V.S.A. §2592 that Vermont statutes specifically state that a plurality is sufficient to elect the Auditor of Accounts. 17 V.S.A. §2592(h) specifies that [t]he canvassing committee shall declare the person receiving the largest number of votes for each office to be elected ...' While 17 V.S.A. §2592(k) specifies that the canvassing committee shall not sign a certificate of election for the Office of Auditor of Accounts, the certificate is to be prepared for the candidate who receives the most votes. Subsection (k) further references Chapter II, Section 47 of the Vermont Constitution which requires a majority to elect only the Governor, Lieutenant Governor and Treasurer. "4. The general rule, as stated in C.J.S. 'Elections', §241, is that a plurality is sufficient in election of officers when constitutional and statutory sources are silent. "Under any Vermont analysis, it is my opinion that the Office of Auditor of Accounts is elected by a plurality. "cc: Jeffrey Atnestoy William Griffin Marilyn Skoglund Claudia Bristow" Dissolution Thereupon, the Joint Assembly dissolved. ROBERT H. GIBSON Secretary of the Senate, Clerk This conclusion was based upon and supported by the Opinion of the Office of the Attorney General issued under date of 4 January 1991. The text of this Opinion is as follows: "MEMORANDUM '861 IN JOINT ASSEMBLY, JANUARY 10, 1991 Paul S. Gullies, Deputy Secretary of State 2:00 P.M. "FROM: Andrew W. MacLean, Assistant Attorney General The Senate and House of Representatives met in the Hall of the House of Representatives pursuant to a Joint Resolution which was read by the Clerk and is as follows: "TO: "RE: Election of Auditor of Accounts "DATE: January 4, 1990 "Although Vermont law is not crystal clear on this issue, it is my opinion that the Auditor of Accounts is elected by a plurality. That opinion is based on the following: A I LAcfrwv), v-14- A J.R.S. 4. Joint resolution to provide for a Joint Assembly to hear the inaugural message of the Governor. RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES: 4 JOURNAL OF THE JOINT ASSEMBLY ROBERT J. HARRIS Chair of the Joint Canvassing Committee on the part of the House Report of the Joint Canvassing Committee Adopted Upon motion of Senator Michael W. Metcalf, Co-Chair, the report of the Joint nvassing Committee was adopted. History Repeats This is the second successive election in which one of the candidates for one of the three (3) offices affected by the repeal in 1978 of 17 V.S.A. §1303 has ed to achieve a majority of the votes cast. In 1991, the office in question was that of the Auditor of Accounts, and the massing committee determined that Alexander V. Acebo could be declared gted, although he only received a plurality of the votes cast. In 1993, once again, the canvassing committee has determined that Donald M. oper could be declared elected to the office of Secretary of State by virtue of ing received a plurality of the votes cast, despite not having accummulated a jority. (The third office in question is that of the Attorney General.) All of which is as set forth in the Opinion of the Office of the Attorney General ied under date of 4 January 1991 and recorded in the bound volume of the 1991 rate Journal, pages 860-861. Dissolution Thereupon, the Joint Assembly dissolved. ROBERT H. GIBSON Secretary of the Senate, Clerk IN JOINT ASSEMBLY, JANUARY 7, 1993 2:00 P.M. The Senate and House of Representatives met in the Hall of the House of nesentatives pursuant to a Joint Resolution which was read by the Clerk and is ollows: J.R.S. 3. Joint resolution to provide for a Joint Assembly to hear the inaugural ;sage of the Governor. RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES: That the two Houses meet in Joint Assembly on Thursday, January 7, 1993, at n'rinrk in thr 11-Prnnnn tn rnonivr. THURSDAY, JANUARY 7, 1993 925 Presiding Officer Honorable Barbara W. Snelling, President of the Senate, in the Chair. Clerk Robert H. Gibson, Secretary of the Senate, Clerk. Recognition The Chair recognized former Governors and their wives/husbands: Governor Madeleine M. Kunin and Dr. Kunin Governor and Mrs. Thomas P. Salmon Mrs. Deane C. Davis Governor and Mrs. Philip H. Hoff Governor and Mrs. E Ray Keyser, Jr. Governor and Mrs. Robert T. Stafford Mrs. Harold J. Arthur Mrs. George D. Aiken The Chair then recognized the Honorable United States Senator of the State of Vermont: U.S. Senator and Mrs. Patrick J. Leahy Supreme Court The Supreme Court was escorted within the presence of the Joint Assembly by the Sergeant-at-Arms, Kermit A. Smith. Committee Appointed Senator Mary Ann Carlson of Bennington District moved that a Committee of three Senators and three Representatives be appointed by the Chair to wait upon His Excellency, the Governor-elect, and escort him into the Chamber to receive the Oath of Office. Which was agreed to. The Chair appointed as members of such Committee: Senator Mary Ann Carlson, of Bennington District Senator John M. C. Carroll, of Windsor District Senator Richard T. Mazza, of Grand-Isle District Representative Scan P. Campbell, of Rockingham Representative Peter T. Mallary, of Newbury Representative Richard A. Westman, of Cambridge Governor-Elect Dean Presented The Committee performed the duty assigned to it and appeared within. thc Chamber accompanied by His Excellency, Governor-elect Howard B. Dean. ' 218 BIENNIAL REPORT OF LEGISLATIVE LETTERS No. 62 March 10, 1955 Legislative Letters Hon. Merritt S. Hewitt, Jr., Chairman, General Committee, House of Representatives, Montpelier: As a result of my meeting with your committee on recent date and conversations with Mr. Robert Dow, Member of the Committee and Representative from Reading, I understand that my opinion is desired as to the legal liability of the state for torts committed by its wards who (a) may have been institutionalized, or who (b) may have been committed by appropriate court order to foster parents. The general rule as to state liability in suits against it for any cause is well set forth as follows: "The State is a corporation, and as such may make contracts and may suffer and commit wrongs, and may enforce its rights and redress its injuries by civil action. But as a soverig-n power, it cannot be compelled by the process of courts of its own creation, and much less by that of other courts, to defend itself from prosecution. Such immunity is placed upon the ground that the general welfare requires that the State should not be deprived or dispossessed of its property without its consent; * * *. Any liability therefore, on the part of the State for the negligent acts or omissions of its officers or agents, must be one voluntarily assumed by constitutional legislative enactment, or it does not exist. * * *" Shearman and Redfield on Negligence, Revised Edition, Vol. 2, p. 694-695. Vermont has not thus far permitted suits against itself as a general proposition. An exception is made in connection with approaches and bridges on state highways. In the Vermont case of Lemieux v. City of St. Albans, 112 Vt. 512, the court said, page 514: " t* * *is the exercise of a governmental function and no liability attaches for the negligence of its officers or employees engaged in such work.'" (Italics supplied.) This case recognizes the immunity of the state from suit except when it consents thereto. The final question to be touched upon is whether the maintenance of jails and hospitals, and procedures for commission of THE ATTORNEY GENERAL 219 dependent and neglected children are governmental functions. We think they are. "The weight of judicial authority in this country is in favor of the doctrine that the maintenance of a jail is a governmental function; * * Wilcox v. City of Rochester, 190 N. Y. 134, 144, 82 N. E. 1119. "Making provision for the poor, the sick and the injured is essentially a public duty with which the State is primarily charged. * * *" Shearman and Redfield on Negligence, Revised Edition, Vol. 2, p. 730. Based upon the foregoing, we are of the opinion that the State of Vermont is immune from suit for the tortious acts of its prisoners, hospitalized wards and wards in the custody of foster parents in those instances where commission of the prisoner or ward has been the result of an order of a competent court of this state. ROBERT T. STAFFORD, Attorney General No. 63 March 17, 1955 Legislative Letters Hon. John E. Hancock, Speaker, House of Representatives, Montpelier: This will acknowledge your letter dated March 3, 1955, wherein you state: "In connection with my duties as Speaker of the House it has been called to my attention that a request may be made for a secret ballot, when voting on a question before the House. I am aware of the provision in section 9 of the Vermont Constitution wherein it appears that upon the request of a member, and supported by five other members, a roll call shall be had upon any question. However, in the same paragraph there appear in parenthesis these words 'except where the votes shall be taken by ballot.' If you feel it is proper for your office to do so, I wish you would give me your interpretation of the meaning of this sentence, and specifically whether or not I would be obliged to rule that the secret ballot was in order if re- 220 BIENNIAL REPORT OF quested by the House, particularly in the event that a demand for a roll call was also made and sustained by the Constitutional number." Section 9 of chapter II of the Vermont Constitution, referred to in your letter, is as follows: "The votes and proceedings of the General Assembly shall be printed (when one-third of the members of either House think it necessary) as soon as convenient after the end of'the session, with the yeas and nays of the House of Representatives on any question when required by five members, and of the Senate when required by one Senator, (except where the votes shall be taken by ballot), in which case every member of either House shall have a right to insert the reasons of his vote upon the minutes." This section of the Constitution has come down to the present without substantial change. In the Constitution of 1786, it appeared as follows ( §14, Ch. II): "The votes and proceedings of the General Assembly shall be printed (when one-third of the members think it necessary) as soon as conveniently may be after the end of each session, with the yeas and nays on any question, when required by any member (except where the votes shall be taken by ballot) in which case every member shall have a right to insert the reasons of his vote upon the minutes." The particular reason for the phrase "(except where the votes shall be taken by ballot)," may be found in section 31 of the Constitution of 1786, which provided: "All elections, whether by the people or in the General Assembly, shall be by ballot * * *." (Italics supplied.) Thus, it appears that the constitutional provision for vote by ballot in the early form of our constitution referred to the use of ballots for elections in the assembly and that otherwise votes upon request of a member were to be by "yea and nay." In the Constitution of 1793, section 14 of chapter II of the Constitution of 1786 appeared as section 14 of chapter II and unchanged, except for substitution of the word "convenient" for the words "conveniently may be." However, section 31 of the Constitution of 1786 became section 34 of chapter II of the Constitution of 1793 and the requirement that all elections by the people or the legislature be by ballot was omitted. Notwithstanding this omission, it is our understanding that from that time to the present, the election of officers by the General Assembly under the provisions of what have become, in the present constitution, sections 42 and 43 of chapter II, has been by ballot. THE ATTORNEY GENERAL 221 The present Constitution also expressly calls for the use of a ballot for the election of a governor, lieutenant governor and treasurer, if none is elected by the freemen of the state. (Vt. Const., Ch. II, §39.) We believe that it is to such elections by ballot that the phrase in parenthesis "(except where the votes shall be taken by ballot)" refers, as it exists today in section 9 of chapter II of the Constitution. Accordingly, we are of the opinion that with the exception of the matters of elections above discussed, the Constitution requires a yea and nay vote upon any question before the House of Representatives when required by five or more members thereof and, in the face of such requirement by the requisite number of members, a secret ballot would be inappropriate. ROBERT T. STAFFORD, Attorney General Legislative Letters No. 64 March 31, 1955 Hon. Leslie Barry, Senator from Chittenden County, General Assembly, Montpelier: It is my understanding that you desire an opinion from this office as to whether or not a town may at special town meeting adopt the provisions of Senate Bill 12, enacted as No. 65 of the Acts of 1955. No. 65 of the Acts of 1955 is as follows: "Section 1. Section 8568 of the Vermont Statutes, Revision of 1947, as amended by section 2 of No. 70 of the Acts of 1949, is hereby amended so as to read as follows: 8568. Sunday entertainment; vote. A person shall not, between twelve o'clock Saturday night and twelve o'clock the following Sunday night, exercise any secular business or employment, except works of necessity and charity, nor engage in any dance, nor shall a person operate, promote or engage in any play, game, sport or entertainment, except winter sports, tennis or golf, during such hours which disturbs the public peace or for which any compensation is received, directly or indirectly. However, the legal voters of a town, at an annual meeting duly warned for that purpose may, by majority vote of the legal voters present and voting, permit the conducting of basketball, football, baseball, moving