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Maine High Court Hears Arguments on Ranked Choice Voting

Mal Leary
Maine Public/file
Former state Sen. Dick Woodbury formally submits signatures to the Secretary of State's office in October of 2015.

Maine’s ranked-choice voting law had its day in court Thursday.

The Maine Supreme Judicial Court heard oral arguments that could determine the fate of the citizen initiative passed by voters in November. The court’s views on the constitutionality of the law will likely influence legislators to either keep the first-in-the-nation system, ditch it altogether or try to amend the constitution.

The state Supreme Court has been asked to weigh several questions about ranked-choice voting, including its constitutionality. But first and foremost, the court has to decide whether it should opine at all.

During oral arguments held in Augusta Thursday, Jamie Kilbreth, the attorney for the Committee on Ranked Choice Voting, said voters have settled the issue. Ranked-choice voting is the law.

“This is a tail wagging the dog kind of problem,” he said.

“It’s a fairly large tail, however,” said Chief Justice Leigh Saufley.

Large enough that the court’s actions could shape future decisions by the Legislature. If the court declares what’s known as a solemn occasion, it will inevitably have to advise on the constitutionality of a law approved by voters.

Kilbreth argued that opponents are using the court for political cover to kill voter-approved ranked choice.

But Assistant Attorney General Phyllis Gardiner said the court’s guidance is needed. The 2018 election looms, and she said if the constitutionality of ranked-choice voting isn’t resolved now, it could lead to chaos next year.

Judge Joseph Jabar seemed to agree.

“If we don’t take any action now there’s definitely going to be a challenge after the next election. So if we don’t do anything, voters are not going to know how to vote because they don’t know if it’s going to be a plurality system or a ranked-choice voting system,” he said.

Opponents of the law have raised two primary constitutional issues. Among them is whether a ranked-choice system designed to produce a majority winner satisfies the constitutional requirement that winners are elected by a plurality, or the most votes.

Attorney Joshua Dunlap said it doesn’t. Dunlap represents the Maine Heritage Policy Center and the House Republican caucus, two opponents of ranked choice. But when Dunlap attempted to argue his point, Saufley jumped in.

She asked whether it wasn’t a question of simple math — if one achieves a majority, don’t they also achieve a plurality?

Dunlap conceded — sort of.

“A majority is a plurality your honor, yes,” he said.

But Dunlap went on to say that’s only because of the way ballots are counted in ranked choice.

Ranked-choice voting works by allowing voters to rank their candidates by order of preference. If nobody obtains more than 50 percent — a majority — after the first round of counting, the candidate with the fewest votes is eliminated.

Voters who chose the eliminated candidate have their ballots added to the totals of their second-ranked candidate, and the ballots are retabulated. The count continues until one candidate achieves a majority.

Dunlap, the Office of Attorney General and conservative groups say that method blocks the first candidate, who achieves a plurality from winning. And that’s not constitutional.

If ranked choice stands, it would apply to legislative, gubernatorial and congressional elections.

That means the Supreme Court opinion, if it gives one, could also affect the field of candidates for next year’s governor’s race and a U.S. Senate contest.

“Hard to say how that plays out in people’s calculus, but I think people are going to be watching these proceedings very carefully,” said Secretary of State Matt Dunlap.

Dunlap said the system, in which voters rank their favorite candidates from first to last, is designed to give independent candidates and moderates a better chance of winning. With a few exceptions, he said moderates and independents have not fared well in recent elections.

That includes two-time candidate for governor Eliot Cutler, who narrowly lost to Gov. Paul LePage in 2010. He later said he would have won if Maine had ranked choice. He came in third four years later, blaming his second loss on fear of the spoiler effect, an issue that ranked choice claims to resolve.

Cutler has said he won’t run a third time. But that was before voters chose ranked choice in November.

The system could also influence LePage’s potential challenge to independent U.S. Sen. Angus King.

University of Maine political science professor Mark Brewer said LePage would be a formidable candidate, especially if ranked choice is overturned.

“A ranked-choice voting system makes his road to victory more difficult, and I think it might change his calculus, for sure,” Brewer said.

But for now, all those calculations hinge on what the Supreme Court may or may not say about ranked-choice voting. The court has not given a timetable for a decision.

Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.