Election and Party Laws in Vermont

By Terry Bouricius

This is Chapter 6 of Building Progressive Politics: The Vermont Story, a 1993 pamphlet by Marxist Terry Bouricius, that chronicles how the only successful left third party in the U.S. today was built over the course of three decades. The remaining chapters will be published on this blog in the coming days.

Laws governing how elections are conducted and how parties are organized limit prospects for alternative parties. It is important to remember that the existing rules of the game are subject to change. Of course we must recognize that the people with the direct power to change how government officials are selected were themselves selected by the existing rules and won. Change occurs only when it is forced upon the decision makers or when they see it in their own interest. To gain some perspective I will first give an overview of how election and party laws have evolved in Vermont.¹

The Ballot

In 1892 Vermont switched to using the “Australian ballot.”² Previously, as provided in the Constitution, voters would “bring in their votes for governor, with his name fairly written,” to the polling place. Throughout much of the 19^th century, each party printed and distributed ballots among its supporters, listing its nominees. The Australian innovation was to have the government print a standardized ballot listing all of the candidates, requiring the voter to mark his preference. The first election under this system was chaotic and evoked widespread dissent. Illiterate voters were especially disadvantaged. As a further refinement in 1894, party columns were used on the ballot this was abandoned in Vermont in 1912. For many years candidates were grouped by office sought with their party identification after their name. The invention of the Independent Vermonter Party ploy allowed a candidate’s name to appear multiple times on a ballot – once for each party nomination. This is the voting system most suited to the fusion strategy. In 1978, however, a reform eliminated this possibility in Vermont. Since then candidates have been listed alphabetically, with their names appearing only once, followed by the names of any and all parties that are nominating each candidate. To drive the final nail in the coffin of the Independent Vermonter Party, the law also prohibited the use of the word “independent” in a party name.

Primary Elections

In Vermont’s early years there was no need for any sort of nomination process since a voter could write anyone’s name on a ballot. All campaigns were “write-in” campaigns. The Australian ballot required a formal process for deciding what names would be printed on the government-produced ballot. For many years parties simply held caucuses and conventions to select candidates.

The introduction of primary elections in 1916 further blurred the distinction between governmental elections and what is essentially a private organizational nominating process. Some 65% of those who voted in the general election of 1916 participated in the State’s first primary that September. Participation in primary elections has declined even more sharply than participation in general elections. Today, on average, the turnout in primaries is only 26% of the general election, or as low as 16% of registered voters.

Those first primary elections were “open,” meaning a voter could choose to vote in any party primary. No party required voters to join in exchange for the privilege of deciding the candidates of that party. From 1921 until 1970 the law required voters to declare which party primary ballot they wanted. In 1970 Vermont returned to the totally “open” primary. Voters were given all party primary ballots and instructed to vote only one of them. In 1978 the consolidated primary ballot, which included four major parties,³ was referred to as the “bed sheet,” measuring 19 inches by 25 inches.

The impact of open primaries on political parties is staggering. Depending on how exciting the primary in each party is in a given year, voters flow back and forth. Many voters choose to vote in what they consider not to be t heir real party, for the worst candidate, in order to improve their preferred party’s prospects in the November election. Attempts to switch to closed primaries, with registration by party, or even forcing voters to declare their party preference when they receive their ballot have been blocked.

Open primaries preclude the possibility of meaningful party membership and candidate accountability. The Democrats and Republicans are accustomed to this fact and accept it.⁴ For an alternative party, especially a smaller alternative party, it is disastrous. Parties become mere vehicles for individual candidates rather than the candidates being the vehicles for the party, its platform, and its genuine members. Open primaries for “star” candidates with good campaigning skills and broad approval rather than ideological consistency – often to the exclusion of compassionate, thoughtful people who would make better representatives. Closed primaries have not overcome the weak party tendency, but the open primary absolutely forbids the possibility of having candidates who are accountable to a party and its platform. Open primaries for small parties are also vulnerable to takeover by sectarian groups, or wealthy individuals.

Primaries are the internal private organization’s selection process for their candidates – not governmental elections. The primary elections are, however, regulated and even financed by the state. Since the Democrats and Republicans control the government it is understandable that they have “raided” the state coffers to fund their private club functions (party primaries).⁵ The government funding and “openness” of the primaries promotes voter confusion about the essential nature of these elections.

Primaries are widely confused with first-round elections. In a first-round election voters can vote for any candidates they wish, regardless of party affiliation, and a runoff election is held among the top vote-getters. In a primary, voters cannot vote for candidate X on the Democratic Party ballot and candidate Y on the Republican Party ballot, since the primary system requires voters to choose a party affiliation before voting.

Not all political parties in Vermont hold primaries. Vermont law distinguished between “major” and “minor” parties. Minor parties nominate candidates by party committee. Vermont law defines a major party as a candidate that has received more than 5% of the vote for its candidates for Governor, Lieutenant Governor, Attorney General, Secretary of State, Treasurer, or Auditor of Accounts in the previous election is organized in at least 15 towns.⁶ The organizational structure, procedures, time lines, and open primary candidate selection process for major parties are minutely detailed in state law (see Appendix C).

Minor parties are not required, nor are they allowed to hold primaries. Free from the open primary dilemma, minor party status would appear to offer the possibility of maintaining candidate accountability.

However, once a minority party achieves a reasonable measure of success unless it somehow stops it members from running for statewide office, it quickly is forced into the major party open primary trap.⁷

The key advantage to remaining a minor party is that state law provides that “a minor political party may organized in the manner set forth in this chapter or in another manner which its members deem appropriate. Minor political parties shall comply with [various specific filing and procedural requirements of major parties.”⁸ It is not clear whether state law would allow any party to have a membership requirement. By law even minor party Town Committees are formed by Town Caucuses of “the voters of the party residing in the town.” The Secretary of State has written an opinion that:

The statute does not provide a litmus test for party voter status or grant any authority to any person to limit participation of others on some doctrinal or other test, and since elections are by secret ballot in Vermont, who can say who is a voter of the party. If a voter appears at the caucus door, and his or her name appears on the checklist, the voter should be permitted to enter.

While the open caucus is not as big a threat to a party that hopes to actually stand for something as is the open primary, it may block the concept of “joining” a party. It could be argued that the term “voters of the party” refers to those who vote in the party primary election, and thus minor parties are free from this rule. The entire law could be challenged as undue restriction of the right to freely associate and form a genuine political party.

The route around this problem that the Progressive Vermont Alliance has charted is to endorse independent candidates rather than to nominate them. An organization that is not formally a party is not subject to these laws. The Progressive Vermont Alliance does apply a litmus test including a candidate’s support of our statement of principles (see Appendix D). An independent candidate may have a party-like name listed on the ballot. Tom Smith and I, for example, used the label “Progressive Coalition” in 1990 and will use simply “Progressive” in November 1992. This option, however, will disappear once a political party is formally created with the name “Progressive.” An independent candidate who collects sufficient signature on a certification of nomination (petition) may select a label but “the political or other name on a certificate of nomination shall be substantially different from the name of any organized political party.” This is one of the reasons the Progressive Vermont Alliance chose the name “Vermont Organizing Committee” for its interim non-nominating party – so as not to prevent our candidates from using the “Progressive” label.

Independent candidacies off some advantages, such as more time to make strategic plans, since the nominating certificates do not need to be filed until after the primary. For example, if the winners of the Democratic and Republican primaries are anti-choice, a pro-choice independent candidacy may suddenly make sense. This advantageous time line also applies to minor party candidates. Of course there are also disadvantages. Independent candidates can be overlooked by endorsing organizations that survey declared candidates running in the primaries. Vermont law also requires Independents to gather twice as many petition signatures to get on the ballot – and they must go through an additional step of getting the signatures certified by sometimes uncooperative Town Clerks.

Ballot access in Vermont is easy.⁹ An Independent candidate for the Vermont House of Representatives only needs 100 certified signatures, while a candidate for U.S. Congress or President only 1,000. As few as three people in a town can organize a minor political party and nominate a candidate for the Legislature running only in that town.

Absentee Ballots

Another significant reform in the voting process was the introduction of the absentee ballot in 1919. Absentee ballots have been critical in many recent Burlington elections. Ward 3 includes a large number of elderly voters, for example. While voters may request an absentee ballot by phone, our preferred method is to visit voters and ask if they want an absentee ballot. If they do, we have them sign a request form which we deliver to the City Clerk. This ensures that the voter doesn’t neglect to make the call, and may increase the chances the voter will vote for the campaign that provided this assistance.

Some campaigns have liberally construed the law controlling who may vote by absentee ballot. The state lists various acceptable reasons for using such ballots. The reasons include necessary absence from town on election day, illness, disability, and religious restrictions. To encourage voter participation, particularly by elderly and low-income voters, campaigns may encourage the use of absentee ballots. Isn’t a single mother without a car physically disabled from getting to the polls? An attempt to relax the absentee ballot laws was unsuccessful in the last legislative session.

Voter Registration

Vermont requires that voters be registered weeks before the election. As long as a voter votes regularly and doesn’t move, he or she doesn’t have to reregister. New applicants for the voter checklist take the Freeman’s Oath as required by the Constitution.¹⁰ This oath must be notarized, complicating the registration process. A campaign volunteer who participates in a voter registration drive must first become a notary public.

Any resident, no matter how recent, may register to vote. At various times people have attempted to block university students from voting, but without success. Registering is seen as a responsibility of the prospective voter, not of the state. In Europe it is common for the state to proactively seek to register all eligible voters. That task falls to campaigns in Vermont. Since unregistered people are most likely low-income and young, voter registration drives are a primary tool of Progressive campaigns.

Progressives have consistently sought reform to streamline voter registration. Proposals include: “same day registration” allowing prospective voters to simply show up at the polls with adequate identification and a willingness to sign a statement (subject to perjury) that they have not and will not vote in any other place in that election; “motor-voter” which promotes voter registration when Vermonters register a vehicle or renew a driver’s license; eliminating the need to have the Freeman’s Oath notarized, thus allowing self-administered postcard registration. I have sponsored all of these in the House of Representatives. All have been killed, unanimously by Republicans and a split of Democrats.¹¹

While simplifying voter registration could increase participation of low-income voters, the initial contact would no longer be with a Progressive partisan with campaign literature. On balance, increasing voter registration, and participation, by whatever means, is clearly desirable and necessary for progressive gains.

Footnotes:

1. Several milestones are significant. For example, in Vermont women gained the right to vote in School District elections as early as 1880. Women were voting in town elections by 1917 – three years before they won the vote in state and federal elections.
2. This is not to be confused with the current Australian preferential proportional representation balloting system advocated by some reform groups.
3. In addition to the Democratic and Republican Parties, both the Liberty Union and Libertarian parties had met the legal requirement for being considered “major” parties.
4. The 1992 Democratic Party Convention adopted resolutions sharply at odds with the policies of their gubernatorial candidate, Howard Dean. Howard Dean was expected to win the primary (held after the convention). Reporters and Party officials alike chose to ignore this contradiction because it is not news – it is normal.
5. A bill to change the Vermont Presidential Primary into a binding primary was introduced in 1992. Rep. Tom Smith and I pointed out that only a tiny minority of Vermonters participate in primaries and offered an amendment to have the Secretary of State bill the parties for the expense of running them. Not surprisingly, every single Democrat and Republican voted against our amendment.
6. Ever minor parties must be organized in at least 10 towns to be allowed to nominate candidates for statewide office. A minor party organized in a single District may nominate candidates for that District.
7. In order to nominate candidates for the Legislature, a minor party must organize Town Committees and file the names of the members with the Secretary of State. To run very many candidates, a party needs more than 15 towns.
8. Vermont Statutes Annotated, Title 17, Chapter 45, Section 2318.
9. V.S.A., Title 17, Chapter 45, Sec. 2304.
10. Secretary of State summary entitled “Laws Relating to Political Party Organization 1991” reprinted as Appendix C of this paper.
11. V.S.A., Title 17, Chapter 49, Sec. 2403.
12. The one exception is the office of Justice and of the Peace. State law expressly forbids independent candidates. Only parties may place candidates on the ballot.
13. The oath, intended to assure that voters wouldn’t take bribes and that indentured servants would not simply vote as directed by their masters contains extremely archaic English.
14. “You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the state of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person.”
15. Don Hooper, Democratic Secretary of State and former Rainbow Coalition, endorsee, made this a campaign issue in 1992.

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