Could the Vermont legislature adopt instant runoff voting for governor and other statewide offices by ordinary statute, or did it need a constitutional amendment first?

Plain-English summary

Senator Doyle's Government Operations Committee was considering S. 22, a bill to establish instant runoff voting for statewide offices. Sorrell's opinion divided the answer along the lines of which constitutional section governed which office.

Section 47 of Chapter II of the Vermont Constitution governs the offices of governor, lieutenant governor, and treasurer. It directs voters to "bring in their votes for Governor, with the name fairly written," and says that if no candidate gets "the major part of the vote," the General Assembly fills the office by joint ballot from "the three candidates...for whom the greatest number of votes have been returned."

S. 22 would have replaced this with a ranked ballot and a Washington Superior Court appointed runoff count committee that would eliminate all but two candidates and recount with reranking. Two features of that procedure clashed with Section 47. First, Section 47 contemplates a single name per voter; ranking is different. Second, Section 47 contemplates a legislative joint ballot among the top three when no one wins a majority; the IRV bill substituted a court-appointed committee. So a constitutional amendment, ratified by Vermont voters, was a legal precondition for IRV in those three offices.

Section 48 governs the offices of secretary of state and auditor of accounts and gives the legislature broader discretion. It only requires those officials to be elected "upon the same ticket with the Governor" and tells the legislature to "carry this provision into effect by appropriate legislation." Similar enabling language appears for senators and representatives (§ 45), assistant judges, sheriffs, and state's attorneys (§§ 50, 53), and probate judges (§ 51). The Constitution was not an obstacle to IRV for any of those offices.

The opinion suggested that even though the legislature had authority to legislate IRV for the section-48 offices alone, there was practical sense in waiting for a constitutional amendment for all statewide offices. A unified procedure would avoid voter confusion, and a constitutional debate would help inform voters about the new system. Sorrell cited the Massachusetts Supreme Judicial Court's footnote in McSweeney v. City of Cambridge describing Cambridge's preferential voting system as "so complicated that few voters participating in it are likely to understand it fully."

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Vermont has continued to debate ranked choice voting since 2003. Proposal of Amendment 5 (Article 1) and other measures have moved through the General Assembly. Burlington adopted IRV for mayoral elections in 2005 and repealed it in 2010, then revived it. Anyone evaluating current authority for IRV in any Vermont office should consult both the present text of Vt. Const. ch. II §§ 45, 47, 48, 50, 51, and 53 and any current statute creating ranked-choice voting at the local level.

Historical summary

For state legislators (at the time): The opinion gave three working rules. (1) IRV for governor, lieutenant governor, and treasurer requires a constitutional amendment, which means a multi-biennium process plus a statewide vote. (2) IRV for secretary of state, auditor, and other Section 48 / 45 / 50 / 51 / 53 offices is within ordinary legislative power. (3) The political logic of waiting for a unified constitutional change is real, even when the legal logic permits going piecemeal.

For constitutional law researchers: The opinion treats Temple v. Mead (1832) as the only Vermont Supreme Court case that meaningfully reads § 47, and reads it narrowly: the case decided only that "written" includes "printed," not that the constitutional procedure can be loosened generally.

For election administrators: The opinion contains a useful summary of which statewide offices are governed by which constitutional section, and which ones the legislature can change by statute.

Common questions

Did the AG say IRV is unconstitutional?
No. The AG said IRV for governor and the other Section 47 offices is unconstitutional unless and until a constitutional amendment is ratified. For the Section 48 offices, IRV could be adopted by ordinary statute.

What does "joint ballot" mean in Section 47?
The Vermont Senate and House sit together to vote on candidates for the relevant office when no candidate received "the major part" of the popular vote. The constitutional language anticipates this joint vote among the three top candidates.

Was S. 22 ever enacted?
The opinion does not record the bill's fate. Vermont has continued to debate IRV in the years since 2003 without statewide adoption.

Citations and references

Constitutional provisions:
- Vt. Const. ch. II § 47 (governor, lieutenant governor, treasurer)
- Vt. Const. ch. II § 48 (secretary of state, auditor)
- Vt. Const. ch. II §§ 45, 50, 51, 53 (senators, representatives, assistant judges, sheriffs, state's attorneys, probate judges)
- Vt. Const. ch. II § 76 (1995 gender-inclusive revisions did not alter sense or meaning)

Cases:
- Temple v. Mead, 4 Vt. 535 (1832) (single-name ballot tradition; "written" includes "printed")
- Opinion of the Judges on the Constitutionality of An Act Providing for Soldiers Voting, 37 Vt. 665 (1864)
- McSweeney v. City of Cambridge, 422 Mass. 648 (1996) (Cambridge preferential voting upheld; observed system was complicated for voters)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/FO%202003-1.pdf

Original opinion text

2003-1 Informal Opinion

February 24, 2003
Senator William Doyle, Chair
Senate Government Operations Committee
State House
115 State St.
Montpelier, VT
Re: Instant Run-Off Voting – Constitutional Issues
Dear Senator Doyle:
I am writing to confirm my advice that the Legislature allow the voters to
consider any proposal that would establish an instant runoff voting system for
statewide offices. Voter approval of a constitutional amendment is legally required
before the runoff system can be applied to elections for the offices of governor,
lieutenant governor and treasurer. A constitutional amendment is not legally
required for the other statewide offices, and the Legislature could change these
voting procedures without voter participation. As a practical matter, however, the
Legislature may want to await a constitutional change so that a common procedure
will apply to all statewide offices.
A constitutional change is legally required for the offices of governor,
lieutenant governor and treasurer because the present election procedure for these
offices is established by the Constitution. The Constitution provides that these
offices must be filled through the one-office, one-name voting procedure that
Vermont has used for the past two hundred years. The Constitution also provides
that when no candidate wins a majority under this procedure, the General
Assembly must fill the office by a joint ballot.
It has been suggested that the instant runoff procedure conforms to these
constitutional requirements. I respectfully disagree. The differences between the
constitutional and the instant runoff procedures are readily apparent when the
language of the Constitution is compared to the language of the instant runoff bill.

For example, the Constitution provides that "[t]he voters … shall … bring in
their votes for Governor, with the name fairly written…." Vt. Const., ch. II, § 47
(emphasis added). The instant runoff bill provides that "[b]allots … shall allow a
voter to rank candidates for an office in order of choice…." S. 22, Sec. 3 (adding
17 V.S.A. § 2473a(c)) (emphasis added).
Thus, the Constitution directs voters to select a single candidate or "name"
for the office of governor. It neither requires nor authorizes voters to select more
than one name. It does not contemplate that voters will list multiple names and
rank them in order of choice.
The Constitution goes on to address the prospect that in some instances no
candidate will receive "the major part of the vote," and that "there shall be no
election." Vt. Const., ch. II, § 47. In that circumstance the Constitution provides
"the Senate and House of Representatives shall by a joint ballot, elect to fill the
office…one of the three candidates for such office (if there be so many) for whom the
greatest number of votes have been returned." Id.
The instant runoff bill would establish a different procedure. It provides that
in this circumstance the Washington Superior Court "shall appoint an instant
runoff count committee." S. 22, Sec. 7 (adding 17 V.S.A. § 2593(b)(2)). This
committee would eliminate all candidates "except the two candidates with the
greatest number of first choices." Id. Then:
Ballots which rank eliminated candidates and which
indicate one of the final candidates as an alternate choice
shall be counted as votes for whichever of the final
candidates is ranked higher for that office on each ballot.
In each round, each ballot is counted as one vote for the
highest ranked advancing candidate on that ballot.
Id.
This ranking and counting procedure would depart from the Constitution in
two respects. First, it would eliminate the third-place candidate as a matter of
course, infringing the constitutional status afforded "the three candidates … for
whom the greatest number of votes shall have been returned." (This problem could
be resolved by letting all three participate in the runoff count.) Second, it would
displace the joint ballot of the Senate and House of Representatives with the
process of a court-appointed committee.

Arguably, the joint ballot process would still apply in the rare instance of a
tie vote. However, the constitutional reference to "three candidates" anticipates
plurality votes as well as tie votes. This reference, coupled with the requirement
that joint ballots be used "if, at any time" no candidate receives "the major part of
the votes", shows an intent that the Legislature should elect the governor when the
popular vote results in a plurality or a tie.
This intent was just as apparent prior to the "gender inclusive" constitutional
revisions in 1995. The earlier language, dating back to 1836, described the problem
as "no election by the freemen" and required joint ballots "to fill the office, not filled
by the freemen…." Records of the Council of Censors 763 (Paul S. Gillies & D.
Gregory Sanford eds., 1991). Please note that the 1995 revisions did "not alter the
sense, meaning or effect of the [revised] sections of the Constitution." Vt. Const.,
ch. II, § 76.
It has also been suggested that the constitutional requirements imposed by
Section 47 have been honored in their breach more than in their observance, and
therefore may be disregarded. See, e.g., Final Report of the Vermont Commission to
Study Instant Runoff Voting (January 1999). However, I am aware of just two
opinions in which the Vermont Supreme Court has considered this Section. There
is nothing expressed in either of them that lessens the importance of the
constitutional requirements.
The case Temple v. Mead, 4 Vt. 535, 539-40 (1832), is cited for the proposition
that the courts must give effect to the "spirit" of the Constitution "without regarding
too strictly the literal meaning of the terms made use of." This is certainly a fair
statement of the law. However, the "literal meaning" argument that the Court
rejected in that case was the argument that a printed ballot was not a "written"
ballot. As the Court observed, "[t]he definition of the word writing includes
printing; it means no more than conveying our ideas to others by letters or
characters…." Id. at 542.
The Temple case is instructive for another reason. The opinion discusses the
ballot required by Section 47, and describes it as "a paper on which is the name of
the person he intends for the office." Id. at 541 (emphasis added). The Court
then explains that "[t]he clause in the constitution directing the election of the
several state officers, was undoubtedly intended to provide that the election should
be made by this mode of voting, to the exclusion of any other." Id. at 542
(emphasis added). This interpretation underscores the constitutional nature of the
requirement that a voter select just one "name" or "person" for each office and casts
doubt on any system that would require voters to rank multiple candidates on a
preferential scale.

The only other Vermont Supreme Court opinion that considered the
gubernatorial election language had nothing to do with the marking of ballots.
Rather, the question was whether a Civil War law allowing soldiers to cast absentee
ballots complied with the requirement that voters "bring in their votes." See
Opinion of the Judges of the Supreme Court on the Constitutionality of "An Act
Providing for Soldiers Voting", 37 Vt. 665 (1864). In this instance, the Court
applied a very literal standard and held that the law was not constitutional.
However, the Court reached this conclusion "without the advantage of argument by
counsel" or even a conference of the justices. Id. at 678-79. The opinion itself was
published as an "appendix" apart from the "cases argued and determined," and it
has generally been ignored. It has no bearing at all on the instant runoff voting
issues.
The Constitutional provision for electing the Secretary of State and the
Auditor of Accounts is quite different from the provision for electing the Governor,
Lieutenant Governor and Treasurer. The Secretary of State/Auditor of Accounts
section gives the Legislature broad discretion to establish voting procedures for
these offices. See Vt. Const., ch. II, § 48. It does not require "the name" to be fairly
written, nor does it require joint ballots by the General Assembly. It provides only
that the Secretary of State and the Auditor shall be elected "upon the same ticket
with the Governor" and that "the Legislature shall carry this provision into effect by
appropriate legislation."
Therefore, the Legislature already has the constitutional authority to require
or to permit instant runoff voting procedures for the Secretary of State and the
Auditor of Account. Similar enabling language appears in the Constitutional
provisions for electing senators and representatives (ch. II, § 45); assistant judges,
sheriffs and state's attorneys (ch. II, §§ 50, 53); and judges of probate (ch. II, § 51).
The Vermont Constitution is not an impediment to instant runoff voting in any of
these cases.
Notwithstanding this authority to legislate instant runoff voting for the
Section 48 offices, there may be some practical advantage to proceed first with a
constitutional proposal for the Section 47 offices (Governor, etc.). If the proposal
passed, this would avoid the confusion that might result if different systems applied
to the different statewide offices. Also, a constitutional debate would help to inform
the voters about the proposed changes.
S. 22 provides for a "voter education campaign to educate voters on the use
and purpose of the instant runoff voting method." Sec. 3, adding 17 V.S.A. §
2473a(d). The need for a voter education campaign is substantiated by a footnote in
a court opinion that considered the Cambridge, Massachusetts preferential voting
system. The Massachusetts Supreme Judicial Court characterized that system
(sometimes cited as a model) as "so complicated that few voters participating in it
are likely to understand it fully." McSweeney v. City of Cambridge, 422 Mass. 648,
654, 665 N.E.2d 11, 15 (1996) (holding that the Cambridge system did not violate
the U.S. Constitution or the Massachusetts Declaration of Rights). A statewide
discussion involving citizens as well as legislators may help to inform voters and
elections officials about the changes that would be required to introduce instant
voting to Vermont.
In summary, for all of these reasons, my advice is that voter approval is
legally required before the instant runoff system can be applied to elections for the
offices of governor, lieutenant governor and treasurer. The voting system for other
statewide offices can be changed by legislation. But it may be advisable to treat all
statewide offices alike and await the outcome of a constitutional vote before making
any changes.
Please let me know if you have related questions or need additional
information.
Thank you.

Sincerely,

William H. Sorrell
Attorney General