This portrait of Gov. John S. Robinson, created nearly four decades after his death, hangs in a back hallway at the Vermont statehouse. Photo by Mark Bushnell
As most Americans are well aware by now, the person who wins the most votes in a presidential election doesn’t always end up becoming president. That’s because at the national level, the winner is actually decided by the Electoral College, about which we’ve heard so much lately.
People might not realize, however, that in Vermont, too, it isn’t always as simple as the top vote-getter winning the office. If a candidate for statewide office hasn’t won at least half the votes, then we end up with more of a selection than an election: the state legislature picks the winner.
Lawmakers’ power to decide an election—to even turn a numerical loser into a winner—is written into the Vermont Constitution. And while it’s a rare occurrence, it has happened multiple times in Vermont’s history.
Since Vermont’s founding, the governor’s race has failed to produce a majority winner 21 times. In all but four cases, the legislature picked the people’s top choice; and in only one of those cases did the selection of the second-place finisher seem blatantly partisan—more on that in a moment.
So, why does Vermont law give the state legislature this power? The reason is that the framers of Vermont’s constitution wanted statewide office holders to have broad support, and they feared that in a contest with many candidates, someone could win with as little as, say, 30 percent of the vote.
So who could ensure that the winner was the best choice for the majority of Vermont communities? Why, naturally the legislature, the thinking went, since they were the representatives of the people.
The first time the legislature picked the second-place finisher came in 1789, while Vermont was still an independent republic. Incumbent governor Thomas Chittenden won about 43 percent of the vote to 26 percent for Moses Robinson. Despite Chittenden’s outsized numerical advantage, lawmakers picked Robinson for a couple of reasons. One was that Robinson was a member of the new lawyer elite that was vying with old revolutionaries like Chittenden. The other reason was that the legislature was troubled by a sketchy land grant that had benefited Chittenden (as well as Ira Allen, brother of Ethan).
Chittenden might not have liked the results, but he knew and accepted that this was how the system was supposed to work. After all, he had helped write the Vermont Constitution. As former Vermont State Archivist Gregory Sanford once explained, after the Legislature nullified his numerical victory, “Chittenden doesn’t call out the old revolutionary guard from their farms to undo it.”
Thomas Chittenden’s son, Martin, was the beneficiary of the legislature’s next reversal of the popular vote. In 1813, Martin Chittenden was edged out in the election 49.5 percent to 48.7 percent by Jonas Galusha, but the legislature, in an equally tight vote, picked Chittenden.
No such resolution was found in 1835, when after 63 rounds of voting, the legislature pronounced itself deadlocked in deciding who should become governor, so the lieutenant governor served as governor for what was then only a one-year term.
Which brings us to the most fascinating case of legislative involvement in a governor’s race. Readers who are squeamish about partisan politics might want to avert their eyes.
Although he was the top vote getter in the 1853 election, Erastus Fairbanks was denied the governorship by a vote of the Vermont legislature. When he ran for the office again in 1860, he won a majority of the vote and became a strong supporter of the Union at the start of the Civil War. Photo by Mark Bushnell
The year was 1853 and temperance and slavery were the hot-button issues. Just the year before, incumbent governor Erastus Fairbanks had signed into law a controversial bill banning the manufacture and sale of liquor, and his political adversaries were out to get him. When election results came in, Fairbanks, a Whig, had easily outdistanced his rival, Democrat John Robinson, 43.9 to 38.3 percent. A decisive victory, but not a majority of the vote.
Then the closed-door politicking began.
At the time, political allegiances in Vermont were split between three parties. The most powerful were the Whigs, who supported spending public money on railroads, canals and other things that might stimulate the economy. Their chief challengers were the Democrats, who said such spending would disproportionately benefit the wealthy. But the Democrats were divided. Members of a splinter group, the Free-Soil Democrats, had launched their own party because they believed Democrats should oppose the expansion of slavery to new states.
Neither the Democrats nor the Whigs could elect their own candidate alone; they needed to court members of the Free Soilers.
A deal was struck. Or at least the rival Democratic parties came to some sort of understanding. Strong Democratic support helped elect a Free Soiler, Horatio Needham, speaker of the House. In return, enough Free Soilers voted for Robinson to earn him the governorship.
That’s a rather simple way of explaining the machinations that took weeks of sporadic voting—31 rounds of votes for speaker and 26 for governor—to accomplish.
The Democrats didn’t stop there, however. They also worked with Free Soilers to elect two Democrats who had finished second in the polls as lieutenant governor and treasurer.
Pure political muscle had secured the Democrats control of the state’s three top positions, but they paid dearly for it.
Evidence of the price was right there in the newspaper reporting on events at the statehouse, which showed almost universal disgust for the legislature’s actions.
“The recent election of Governor (if it be an election) by the Joint Assembly furnishes a most striking instance of the finality of a legislative act, and the submissiveness of the people to it,” the Vermont Temperance Standard in Woodstock wrote.
The Standard even questioned the legitimacy of Robinson’s winning tally, pointing out that Robinson’s name appeared on only 120 of the 241 votes cast: “John S. Robinson is now elected (?) Governor of Vermont by a minority of one.” The Legislature had thrown out two of the ballots because they were blank, giving Robinson the slimmest possible majority of the 239 votes counted.
The Burlington Free Press’s reporter didn’t even bother to include the ballot totals for the lieutenant governor’s race. “It is of no use to give the figures,” he explained. “The work was done as in the defeat of Governor Fairbanks, by reunion and good management on the part of the Democrats, faithlessness and desertion on the part of the sham Free Soilers, and a few renegade Whigs.”
Even Needham, the new speaker, was attacked. The Middlebury Register wrote: “While all respect Mr. Needham as an experienced, good-natured, and venerable legislator, few will be found to dispute that his election is either a crime or a blunder.”
The Brattleboro Eagle’s editor also skewered the speaker. “Mr. Needham’s efforts to perform the duties assigned him in the Speaker’s Chair have been even less successful than was anticipated, and all parties now acknowledge the error that was committed in placing him in a position for which he has no natural or acquired (ability).”
Robinson’s abilities were even less known. “Mr. Robinson is apparently about 50 years of age,” the Free Press reported, “rather tall, stooping somewhat, with iron grey hair, very florid complexion, and eyes so prominent that they seem ready to drop upon the floor.”
Robinson did little to fill in this hazy sketch. He was sworn into office in a private ceremony in his new executive chambers and he delivered his first address to the legislature in writing.
In that rather bland text, he tried to justify his election and to mend some fences. He opened by reminding people that lawmakers were there “to discharge the duties devolved upon them under the Constitution and Laws,” such as sometimes picking a new governor.
Despite people’s strong political beliefs, he said, “the legislation required for the domestic government of the State does not ordinarily involve our political opinions, or excite the asperity of party controversy.”
Read the story on VTDigger here: Then Again: Sometimes the legislature picks the governor.