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A Look At The Legal Issues In Bruce Poliquin's Court Challenge To Ranked-Choice Voting

Robert F. Bukaty
Associated Press
U.S. Rep. Bruce Poliquin, R-Maine, speaks at a news conference, Tuesday, Nov. 13, 2018, in Augusta, Maine.

Maine 2nd District incumbent Bruce Poliquin's federal court challenge to ranked-choice voting raised several legal issues with the system. On Tuesday Poliquin filed an injunction and temporary restraining order to halt the count of ranked-choice voting results.  Dimitri Bam, associate dean for academic affairs at the University of Maine School of Law, unpacked some of those issues with Maine Public's Morning Edition host Irwin Gratz.GRATZ: As I read the filing for the injunction it seems to me they made three main arguments. The first was based on Article 1, Section 2 of the Constitution, and an appeals court ruling that they say makes it clear a plurality, not a majority, is what's meant by the wording: The House of Representatives shall be composed of members chosen every second year by the people of the several states.

BAM; Yes, Article 1 Section 2 lays out the qualifications of who is eligible to serve in the House of Representatives. It says nothing about how those people were chosen. It is interesting that the case that Rep. Poliquin chose to cite is about a challenge to plurality requirements in New York City, in which the voters said you have to have a majority for the Senate, under the 17th Amendment. The court of appeals there said no, plurality is just fine, you don't need a majority. And, in fact, I believe some states actually still continue to use runoffs for House elections as well. The idea behind Article 1 Section 2, and much of the Constitution, is to leave the discretion for how to conduct those elections to the states.

Their second argument is grounded in the 14th Amendment, and they say since not everyone may have marked more than one choice on their ballots it's possible that some voters’ votes won't be counted in a ranked-choice tally, while others will be, which they claim would violate the Equal Protection Clause in the 14th Amendment.

BAM: Right. And that's an argument that has been tried in other jurisdictions where ranked-choice voting has been tried. The most famous case is that the 9th Circuit, where the court said this is just wrong because every voter has an equal vote, every voter has an equal opportunity to rank as many candidates as they choose to rank. And that's true with many other methods of election, right? So you have a cumulative voting system, which some jurisdictions have tried, where you can sign your vote - you have 10 votes and you distribute them to various candidates. Somebody may choose to distribute all of their votes to one person. Some may choose to spread it. In a runoff election, like we're going to see in Mississippi for the Senate, some voters may choose not to even show up the second day, and some will. Though some voters chose to vote twice in this election, some will only vote in one round. So, with the many methods of voting there is, as long as we have an equal opportunity to vote there's no requirement that every single person cast the same vote.

Their third argument is based on the Voting Rights Act, which says that voters need to be clear about their choices, and they would argue that a ranked-choice ballot, by its nature, fails to provide such clarity because of the various possible match-ups that may ultimately occur in the counting.

BAM: Claim 2 and Claim 3 make the same kind of lack of access to information, difficult to nail, confusing ballot - you know, that's an issue where discretion is left to the court to decide. Is this ballot so confusing, so unclear, that really no reasonable voter could have understood it? You know, I look at the ballots, I don't believe that's true. But, of course, that's a judgment call. What I think is the best comparison is to look at what other kinds of elections have been going on in the country that have been upheld, right? Sometimes the ballot will say you can vote for up to four people, and that's what voters do. So I don't see ranked-choice voting as inherently confusing. It has certainly been tried in other states, in other jurisdictions. None of those courts have ever held it to violate that kind of First Amendment Voting Rights Act principle. Could a court find that to be the case? I think it's, in theory, plausible. But given the amount of precedent and history that there is now showing that this is not about a ballot that’s too confusing, and the kinds of various voting methods that jurisdictions throughout the United States have tried that are much less clear, I don't see that as the winning argument.