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Milne's Miracle: Vermont's Almost-Governor Fights On

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Scott Milne, left, and Lt. Gov. Phil Scott on Election Night - CREDIT: OLIVER PARINI
  • Credit: Oliver Parini
  • Scott Milne, left, and Lt. Gov. Phil Scott on Election Night

You can forgive Scott Milne for believing in the impossible.

Last Tuesday, the inexperienced, underfunded Republican gubernatorial candidate did what nobody expected: He nearly took down Gov. Peter Shumlin, the seemingly all-powerful Democratic leader of a heavily Democratic state.

Now, Milne's in the market for another miracle.

This time, he may try to persuade the Democratic legislature to ignore the will of the voters, historical precedent and his own pledge to abide by the election's results in order to install him as the next governor of Vermont.

But in that vain attempt, he may empty the reservoir of goodwill afforded any near-victor who is gracious in defeat.

Milne's already pushing it.

Last Wednesday, he scheduled a concession speech at the Sheraton Burlington Hotel, canceled it and then snuck out of the building without speaking to reporters.

He's sent mixed signals about whether he'll demand a recount, but told Seven Days' Mark Davis on Tuesday that he probably won't.

And he's threatened to keep the campaign alive until January. That's when the legislature will pick the next governor, since no candidate notched 50 percent.

In interviews from his hidey-hole, the almost-gov has labored to walk back his pre-election commitment to the Associated Press' Dave Gram that he would concede the race if he failed to win a plurality.

"If I'm ahead, I expect the legislature will honor the wishes of the people of Vermont," Milne said at the time.

In the end, Shumlin came out 2,434 votes ahead, according to complete results to be certified Wednesday by the state canvassing committee. According to the secretary of state's office, Shumlin won 46.4 percent, Milne 45.1 percent and Libertarian Dan Feliciano 4.4 percent.

Since coming up short, Milne has changed his tune. He told Seven Days last week that his wasn't a commitment to Gram, but a "challenge" to Shumlin to abide by the election's results.

"[Democrats] had control of both houses. He obviously had more to lose than I did. And he didn't take me up on it," Milne said of his purported challenge. "I imagine now he would like to take me up on it, but he didn't when the time was right."

Asked if he had, in fact, reversed his position, Milne said, "I don't believe I've changed my mind. I believe there was a vote in which 54 percent of the people said they wanted a different person than Peter Shumlin."

Right, but didn't 55 percent say they wanted a different person than Scott Milne?

"Except I'm not the incumbent governor, but you're right," he said. "That's true."

Um, what does incumbency have to do with the threshold for victory?

"I believe the election was a referendum on Peter Shumlin, and he lost," Milne said.

Huh.

Milne continued his non-concession tour this week in a bizarre 15-minute interview with radio host Mark Johnson Tuesday morning on WDEV. Displaying his trademark sarcasm, bitterness and pomposity, Milne attacked, in quick succession, Secretary of State Jim Condos, the press, Shumlin and Johnson himself.

"I'm going to continue to talk to folks like you and, you know, all the big shots that want to talk to me, but mostly I'm talking to people on Main Street who [supported my campaign]," Milne said. "If those people think it's best for me to step aside, that's what I'll do — very, very clearly."

It's unclear, however, if he's talking to the people who matter most right now: the Republican legislators whose votes he'll require to snag the seat from Shumlin.

Rep. Don Turner (R-Milton) and Sen. Joe Benning (R-Caledonia) — the minority leaders of the House and Senate — indicated last week that they'd support Milne in January. But other rank-and-file members say they won't.

"I think the person who gets the most votes wins," Rep. Kurt Wright (R-Burlington) says. "It was incredibly close, but unless something changes, I would expect to be voting for the person who got the plurality."

Party leaders aren't helping Milne's case, either. Though Lt. Gov. Phil Scott, the state's top Republican, says Milne is free to fight on, he says he wouldn't personally vote for him in January.

"If it was me, I would vote for the person who had the most votes overall," Scott says.

Former governor Jim Douglas, who introduced Milne at his campaign kickoff and narrated the candidate's first television ad, says much the same: "The tradition in most cases is to confirm the plurality choice of the electorate, and I think that's a good practice."

Even if Milne's allies thought it wise to join him at the Alamo, the numbers just don't add up. When a joint assembly of the House and Senate convenes in January to pick the next gov, it will include 112 Democrats and Progressives, 62 Republicans and 6 independents. The winner needs 91 votes.

To reach that number, Milne has proposed a novel approach: that legislators should vote the way the districts they serve did.

But even if they followed that rubric, according to an analysis conducted by the Vermont Press Bureau's Neal Goswami, Milne and Shumlin would tie at 90 votes apiece. And that's assuming that a whole lot of Democrats whose districts voted for Milne — including House Speaker Shap Smith (D-Morristown) — cast a ballot for Milne.

Breaking news: They won't.

"My expectation is that people will observe historical precedent, which is that the winner of the plurality ends up winning the race," Smith says. "He clearly is trying to ignore historical precedent, and that's his prerogative. I don't know whether people will jump to his side on that one."

Ever the history buff, Milne was quick last week to cite the example of T. Garry Buckley, the second-place finisher in the 1976 lieutenant governor's race. That year, the legislature passed over plurality-winner John Alden and installed Buckley instead.

"If we move forward, I expect Peter Shumlin has a good likelihood of facing the same fate as John Alden, and I will be Vermont's next governor," Milne said in a press release last Thursday.

What Milne didn't mention was that at least some of the legislators voting on that January day 38 years ago knew that attorney general Jerry Diamond was investigating Alden for fraud. He was later convicted.

According to former state archivist Gregory Sanford, the legislature has passed over the plurality winner just three of the 23 times it's faced the dilemma.

In 1789, legislators ditched incumbent Thomas Chittenden in favor of Moses Robinson after the former was ensnared in a sketchy land deal. In 1835, lawmakers cast 63 inconclusive ballots before giving up and letting lieutenant governor Silas Jennison serve as acting governor. And in 1853, the Democrats and Free Soil Democrats teamed up to steal the state's top jobs from the Whigs, whose slate of candidates won pluralities.

It's worth noting that, after that little episode, no Democrat won the Vermont governorship for another 110 years.

According to Sanford, Milne's follow-your-district scheme simply has no precedent.

"I'm not sure that's ever been done," he says.

Though it has been altered several times since, the process originates with the Vermont Republic's 1777 constitution.

"The thought was, if nobody was to have received a majority, that [legislators] were capable and, perhaps, most qualified to choose the best person to lead this state," says Vermont Law School professor Peter Teachout.

Milne's model, he says, "is not consistent with what the framers wanted." Neither, though, is the notion that legislators must choose the first-place finisher.

"They wanted legislators to be able to select the person who came in No. 3," Teachout says. "I think it was a feeling that it would be the subject of some open deliberation in the legislature before legislators cast a ballot."

Notions of democratic representation have changed plenty in the intervening 237 years, and Vermont has steadily chipped away at the custom. Since 1915, members of Congress have been elected by plurality; since 1939, members of the Vermont House have been; and since 1991, attorneys general, secretaries of state and state auditors have.

Only Vermont's governors, lieutenant governors and treasurers are subject to majority rule today. And Douglas thinks it's time for that to go, too.

"I think the constitution ought to be changed, frankly, so the person with the most votes wins, which is the case in most states and is the case in most elections," he says.

Douglas isn't the first to come up with that idea. Eleven times in Vermont's history — including as recently as 2012 — legislators have proposed constitutional amendments to elect those three jobs by plurality. None of those proposals have made it through the state's complex amendment process.

Where politicians stand on the matter often corresponds to how they'd be affected by it.

When Democratic lieutenant governor Doug Racine lost the 2002 gubernatorial race to Douglas by a margin of 42.4 percent to 44.9 percent, he recalls a conversation he had with his Republican foe shortly before conceding.

"[Douglas] said, 'This is very gracious of you.' And I said, 'I'm sure you would do the same,'" Racine recalls. "He looked at me and said, 'You never know.'"

Douglas says he doesn't recall that conversation, but he agrees that in that race, only Racine committed to respecting the will of a plurality. Douglas' thinking evolved over the years, he says. By the time he faced a challenge from Democrat Gaye Symington and left-leaning independent Anthony Pollina, he was committed to plurality rule. Then, liberals were contemplating joining forces to elect one of their own if Douglas failed to clear the 50 percent threshold. In the end, the point was moot, since Douglas won 53.4 percent.

"That led me to believe even more strongly that we ought to change the constitution," Douglas deadpans.

The way Racine sees it, Milne's arguments are "convenient for him, frankly."

"You can make your arguments to justify any conclusion you want to come to," he says.

Taking a stand against plurality rule is dangerous, as Sen. Dick Mazza (D-Grand Isle) points out, "because you never know when it's going to bite you."

And that's what's most puzzling about Milne's, Turner's and Benning's positions on the matter. If recent trends persist, it's far more likely that a Democratic legislature will face the question of whether to elect a Republican plurality-winner than the opposite scenario.

And you can bet that if Milne's and Shumlin's roles were reversed, the GOP candidate would be screaming bloody murder that the arrogant Democratic majority was attempting to subvert Vermont's democracy.

The original print version of this article was headlined "Milne's Miracle"

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