Federal Judge Denies Poliquin's Challenge To Maine's Ranked-Choice Voting Law

Dec 13, 2018

A federal judge has denied Republican U.S. Rep. Bruce Poliquin’s legal challenge to Maine’s ranked-choice voting law and his request to invalidate the runoff he lost to Democrat Jared Golden.

Judge Lance Walker’s 30-page ruling was thorough and potentially devastating to Poliquin and Maine Republicans’ quest to rid Maine of an election system that allows voters to rank candidates for federal office in order of preference.

Not only did Walker disagree with the array of constitutional claims Poliquin’s attorneys made against the law, but he also declined to grant Poliquin’s request to order a new election in Maine’s 2nd Congressional District race.

“As I indicated in my order denying Plaintiffs’ request for a temporary restraining order, there is no dispute that the RCV Act—itself the product of a citizens’ initiative involving a great deal of first amendment expression—was motivated by a desire to enable third-party and non-party candidates to participate in the political process, and to enable their supporters to express support, without producing the spoiler effect,” he wrote. “In this way, the RCV Act actually encourages First Amendment expression, without discriminating against any voter based on viewpoint, faction or other invalid criteria. Moreover, a search for what exactly the burden is that Plaintiffs want lifted is not a fruitful exercise.

“I fail to see how Plaintiffs’ first amendment right to express themselves in this election were undercut in any fashion by the RCV Act (ranked-choice voting act),” Walker wrote. “They expressed their preference for Bruce Poliquin and none other, and their votes were counted.”

Poliquin’s attorneys made several claims against ranked-choice, which allows voters to rank candidates in order of preference and uses an instant runoff tabulation if no candidate obtains an outright majority on Election Day. Among their claims is that the runoff prevents voters from strategically ranking candidates because, unlike a traditional runoff that takes place on a different day, they don’t know which candidates will advance to the final round.

During last week’s oral arguments, James Gimpel, a University of Maryland professor who was paid $300 an hour by Poliquin’s attorneys to stand as an expert witness, said voters were effectively blind and “clueless.”

But Assistant Attorney General Phyllis Gardiner, who represents the secretary of state, countered that the purpose of ranked-choice is to allow voters to more broadly express their preferences, not to see whether voters can correctly guess winners.

Walker also dismantled another claim that ranked-choice violates the equal protection clause of the 14th amendment because voters who only pick one candidate could have less say in the eventual outcome than those who rank multiple candidates.

“Plaintiffs have not demonstrated that their votes received less weight,” he wrote. “They understood that a majority victory was the standard to avoid a second round of ballot counting.”

Walker, who was appointed by President Donald Trump, said the Constitution gives states broad discretion to conduct elections. It’s a concept enshrined in the 10th Amendment that’s often embraced by conservatives.

“We knew going in that states occupy the field in the conduct of elections and that’s why every state does it a little bit differently. The judge’s ruling really underscores that,” says Secretary of State Matt Dunlap, a defendant in Poliquin’s lawsuit.

Dunlap says his office was confident it would prevail.

“It really emphasizes a lot of what we already knew, but it’s still a bit of a relief to hear it,” he says.

The same goes for U.S. Rep.-elect Golden, whose victory against Poliquin marked the nation’s first use of ranked-choice voting in a federal election. The two-term Republican was the first incumbent to lose a 2nd District race since Democratic U.S. Rep. Daniel McGillicuddy was defeated in 1916.

Despite Poliquin’s legal challenge and last-minute request for a recount, Golden has participated in orientation for new members of Congress and is prepared to be sworn in Jan. 3.

Democratic House leader Nancy Pelosi told reporters last week that the U.S. Constitution gives the U.S. House of Representatives final say in determining its membership — meaning Golden will likely be seated because Democrats will soon have the most seats.

Golden’s campaign manager Jonathan Breed says Poliquin is within his rights to challenge the legality of ranked-choice, but he says at some point the Republican has to concede.

“I think that at some point the people of Maine are just going to be tired of playing political games,” he says.

Breed also says Poliquin’s chances of reversing the election outcome through the hand recount currently underway are slim. He and Dunlap say there have been only minor fluctuations in Golden’s lead.

“I would expect at this point nothing to change,” Breed says.

Poliquin’s campaign did not respond to a request for an interview. But in a statement released on Twitter, Poliquin instead cited a seemingly unrelated claim by some voters in the 1st District that they had received 2nd District ballots on Election Day.

Since Golden emerged as the apparent winner in the runoff, Poliquin and Maine Republicans have raised questions about ballot security, the party affiliation of a staffer at the Secretary of State’s office, the software used to tabulate the runoff and, more recently, the prospect that ballots for the 2nd District contest were somehow distributed to 1st District municipalities.

Maine election officials have attempted to ignore most of the allegations and dismissed most of them as Republican attempts to undermine confidence in a ranked-choice system that replaced a plurality system that often benefited GOP candidates.

Meanwhile, Poliquin still has also not said if he’ll appeal Judge Walker’s ruling. If he does appeal, James Monteleone, an attorney with Committee for Ranked Choice Voting, says Poliquin is unlikely to win.

“The court recognized that nothing stuck. There’s no constitutional claim there,” he says.

Monteleone says it’s a high bar to convince the 1st U.S. Circuit Court of Appeals to appeal the lower court ruling, and he says Judge Walker’s thorough ruling further elevates that bar.

“The court’s opinion here is really focused on factual findings, the court’s factual conclusions drawn from the actual voting data that occurred. And the conclusions that the court reached were that the plaintiffs didn’t suffer what the court calls a burden,” he says.

Monteleone also says an appeal comes with risks for Poliquin and for Republicans attempting to invalidate Maine’s ranked-choice voting law, because every unsuccessful legal challenge establishes a precedent that could embolden other states to implement the voting overhaul.

“There’s no question that as these cases continue to be addressed, supporters of ranked-choice voting in other places are given confidence that they can move forward and adopt this without fear that the courts will intervene and say that it’s unconstitutional,” he says.

While that’s good news for groups hoping for a proliferation of ranked-choice in other states, it’s unquestionably bad for the Republicans, who view the system as a threat to their chances in future elections.