22. IRV can comply with Vermont’s Constitution

The essence of this question revolves around Chapter II sec. 47 of the Vermont Constitution, which requires the General Assembly to elect a Governor, Lieutenant Governor, or Treasurer whenever there is no election by the people. Would IRV preempt the General Assembly and provide an alternative method of resolving the situation when there was no majority?

This would be unconstitutional if an IRV bill attempted to bypass the General Assembly’s authority, but that can easily be avoided. Under existing law and under H.665 only the General Assembly canvassing committee appointed in January can declare a candidate elected. Under existing law and H.665, other bodies including a canvassing committee consisting of members appointed by the major parties and the court in the case of recounts or other challenges can advise the official General Assembly canvassing committee as to which candidate received "the major part of the votes." The actual voting method is not mentioned in the constitution and it has changed over time. The General Assembly may pass a law which defines in statute what "the major part of the votes" means within any particular system of voting, whether that be instant runoff voting, or our existing system. If, after transfers, a candidate ends up with a majority, this can be legally defined as "the major part of the votes." In this case, the election is not given to the General Assembly since the second controlling phrase, "[if] there shall be no election," does not get activated. Since voting for alternative choices is proposed to be optional, it is still possible for there to be an outcome after the transfers in which there is still no majority, and with no candidate receiving "the major part of the votes" there would have been "no election" and the General Assembly would proceed to elect from among the top three candidates.

Another constitutional question that might have been raised, as to whether the constitution allows voters to express more than one preference on a ballot, is answered definitively by precedent of other court challenges in states such as Ohio, Massachusetts and Michigan. In all cases, preference voting has been universally upheld. In some of these court challenges, it was unsuccessfully argued that IRV, or other preference voting systems, gave voters more than one vote and thus violated the one person one vote rule. This is wrong on several counts. First, the one person one vote rule simply is a shorthand description of equal voting power for each voter. Otherwise, at-large elections such as the Chittenden County Senate race where voters get six votes, or the two-seat representative districts, where voters get two votes, would be problematic. But more fundamentally, IRV does not give voters more than one vote for Governor. The name for preference voting systems used internationally and by political scientists is the "single transferable vote" (STV). The name describes the fact that there is only one net vote to be had, but that the vote for the candidate for whom it will ultimately count can be transferred. Even if one concluded, contrary to court precedent and political science understanding, that IRV did entail more than one vote, the specific wording in the Vermont Constitution is accommodating in that it uses the plural noun "votes" in describing the task of the voters to "bring in their votes for Governor..."

Finally, the changes envisioned by the use of IRV are far less troubling than the existing flagrant deviations from the voting procedure as far as it is described in sec. 47. The details that are no longer complied with are: 1. the voters "bring their votes for Governor, with the name fairly written." (The ballots are now preprinted and provided by the polling officials as a result of the reforms of 1890, and preprinted party ballots have been deemed constitutionally acceptable since at least 1832. Also, voters are no longer fequired to "bring" in their votes, but may send in absentee ballots, contrary to an 1864 opinion of the Vermont Supreme Court.) 2. The Constable receives the ballots and seals them up. (The General Assembly long ago provided for a more practical secure and convenient polling procedure with local polling officials who are not constables.) 3. With no counting of the ballots, the constables "deliver them to the Representatives chosen to attend the General Assembly" in January. (Currently, the ballots are counted locally, a summary sheet is prepared and the results transferred to a return form which is delivered or mailed to the Secretary of State within 48 hours. Then a statewide canvassing committee, consisting of representatives of the major parties, reviews the return forms from all over the state and prepares a draft certificate of election for the use of the General Assembly.) 4. In January the General Assembly meets and appoints a committee to "receive, sort, and count the votes for Governor", Lieutenant Governor and Treasurer. (The General Assembly does appoint a committee in January, but it never sees the votes, does not sort or count them, but instead reviews and adopts a report provided by the Secretary of State.)

All of these existing deviations from Constitutionally mandated procedures, however, are probably not "unconstitutional" in that the goals and purpose of section 47 is to assure a fair and honest determination of the voters’ will. The technologies and customs of the times have changed markedly since the 1700's. Printed ballots are easily distributed, the mails are more reliable, voting machines can make the sorting of ballots unnecessary, etc. As the Vermont Supreme Court ruled in Temple vs. Mead (1832), when the use of printed ballots instead of handwritten ballots was challenged, Section 47 "was intended to secure to the freemen the privilege of voting for the officers therein named by ballot. . ."and the procedure of balloting may evolve with the times.