Majority Requirement: Officers
While the Vermont Constitution is clear on the need for majority election of governor, lieutenant governor, and state treasurer, there has been confusion on whether the majority requirement applies to the two other state constitutional officers (secretary of state and auditor of accounts) or to the attorney general's office. The current constitutional language (Section 48, Chapter II) simply says that the secretary and auditor "shall be elected by the voters of the State upon the same ticket with the Governor, Lieutenant Governor and Treasurer." The attorney general is not mentioned in the Constitution.
Prior to 1884 the secretary and auditor were elected by the General Assembly. The adoption of Amendment 28 (Proposal #20) in 1883 made those offices popularly elected and Act 69 of 1884 set out the election process. Section 7 of Act 69 simply stated that "The votes for secretary of state and auditor of accounts shall be sorted and counted, and the result declared by the committee appointed by the Senate and House of Representatives to canvass the votes of governor, lieutenant-governor and treasurer." There was no mention of a majority requirement.
The office of attorney general was abolished after 1795 and not re-created until passage of Act 57 of 1904. Act 58 of that year set out the election process by simply adding "attorney general" after the election provisions for the secretary of state and auditor. There was still no mention of a majority requirement.
The statutes were revised in 1906 and the revised language suggested the majority requirement now applied to these offices. Section 199 of the Public Statutes of Vermont, 1906 noted that "in the event of no election by the freeman" of the secretary, auditor, or attorney general, a joint assembly of the legislature would make election among the top three vote getters for the office.
A January 4, 1991 (mis-dated January 4, 1990) opinion of the attorney general argued that the majority requirement did not apply to the election of auditor, noting that the Constitution only specifically required a majority for governor, lieutenant governor, and treasurer and that Act 269 §4(a) of 1974 eliminated the majority requirement for auditor. The General Assembly accepted this opinion by allowing, without a joint assembly vote, the election of Auditor of Accounts Alexander Acebo even though he did not in receive a majority in the 1990 election (see Journal of the Senate of the State of Vermont, 1991, pp.860-861).
In 1993 the General Assembly, citing the same Opinion, let stand without joint assembly vote the election of Donald M. Hooper as secretary of state even though he had not received a majority of the votes (see Journal of the Senate of the State of Vermont, 1993, p. 934).