Federal Judge To Hear Ranked-Choice Voting Arguments In Maine — Here’s Your Guide

May 22, 2018

A federal judge will hear arguments Wednesday in yet another case involving Maine’s landmark ranked-choice voting law.

The Maine Republican Party is suing the Maine secretary of state in hopes of blocking the voting system from being used in its June 12 primary election. The GOP argues that ranked-choice voting changes the way it nominates its candidates and violates the party’s First Amendment rights.

In court filings, the Secretary of State countered that the Republicans’ factual assumptions are “highly debatable and empirically unproven.” The state’s filing, written by assistant Attorney General Phyllis Gardiner, also notes that the Maine Republican Party uses a version of ranked-choice voting to elect its officers.

“The [Maine GOP] chooses its own leadership pursuant to a ranked-choice voting method, but has filed this lawsuit after the eleventh hour, causing considerable disruption to the election process, alleging that [ranked-choice voting] somehow violates its First Amendment Rights of association by using the same voting method to select the party’s nominees for public office,” the filing reads.

The state also noted that the GOP doesn’t have a constitutional right to pick and choose which legal requirements it wants to use when the state is running — and paying for — its primary election.

Unlike some states, Maine’s primary elections are funded by taxpayers, yet only voters enrolled in a state-recognized party can participate. Unenrolled voters, the state’s largest voting block, cannot vote in a party primary without first enrolling in that party.

“The election process is not an a la carte menu,” the state wrote in a brief filed last week.

Using The Courts To Block RCV

The lawsuit is the second by a Republican-led organization that seeks to block ranked-choice voting. If successful, it would only apply to the GOP primary.

In April, attorneys for Republican-led Senate unsuccessfully argued that state election officials don’t have the authority to implement the system for the June 12 primary election. The Maine Supreme Judicial Court rejected their argument by upholding a previous ruling by Kennebec County Superior Court Justice Michaela Murphy, who said the system is the law of the land and should be implemented.

The new case will be reviewed by U.S. District Judge Jon Levy. A former Maine Supreme Court justice, Levy was nominated by President Barack Obama and confirmed by the U.S. Senate in 2014.

Maine voters adopted the new election system via ballot initiative in 2016.

How RCV Works

When using ranked-choice voting, voters rank candidates in order of preference. If no candidate obtains a clear majority — more than 50 percent — after the first round, the vote moves into the runoff tabulation. The candidate with the fewest votes is eliminated, but the voter's second choices are added to the totals of the other remaining candidates and the ballots are tabulated again.

The process continues until one candidate has a majority and is declared a winner.

Supporters of ranked-choice voting say it will make campaigns — and candidates — less acrimonious because candidates hoping to obtain second- and third-place rankings will need to avoid scorched-earth attacks if they want to appeal to a broad cross-section of voters.

The Concept

Ranked-choice voting proposals had been debated in the Legislature several times before voters ratified a citizen-initiated bill two years ago.

While Republicans largely remain opposed to it, Democrats have come to embrace ranked-choice voting after suffering two devastating defeats — in the 2010 and 2014 governor’s races. Republican Gov. Paul LePage won both those contests, and his victories have sometimes been attributed to a split among progressive and left-leaning independent voters in races with more than two candidates.

Republicans hoped a similar split would occur in the 2012 U.S. Senate race in which independent Angus King was the clear front-runner. GOP outside groups even spent money to boost the candidacy of Democrat Cynthia Dill, but King still won handily.

GOP Resistance

Republicans have fought to maintain the current plurality election system since ranked choice was approved by voters. They were assisted in their efforts when the Maine Supreme Judicial Court last year found that the new election system violates an obscure provision of the Maine Constitution for some elections, including gubernatorial ones.

The court’s opinion gave GOP legislators cover in their attempts to repeal ranked choice. The Legislature, which is divided between Republican and Democratic control, eventually passed a bill that will repeal ranked choice if a constitutional amendment isn’t enacted by voters by 2021.

But ranked-choice supporters organized a people’s veto campaign to overturn the repeal law. It will be on the ballot on June 12 — the same time that Maine voters are using the new system for the first time.

Future In Partisan Hands?

Although ranked-choice voting is designed to make elections less acrimonious and less partisan, the fate of the voting system could largely be determined by voters who identify as partisans, and less so by the state’s biggest voting bloc: independents.

On June 12, every registered Maine voter will have a chance to decide whether they want to keep at least part of the ranked-choice voting system that voters approved in 2016. That’s because there will be a people’s veto question on the June ballot that asks all Maine voters whether they want to overturn a law that will repeal ranked choice if a constitutional amendment to allow it to be used in all statewide races isn’t enacted by 2021.

While all voters will have a say in the people’s veto outcome, how many unenrolled voters will go to the polls in June?

The question is important because Maine is not among the 15 states that has open primary elections. If you’re an unenrolled voter, the only way to participate in a primary candidate election is to change your registration to affiliate with a particular political party.

In Maine, you may register as Democrat, Republican, Green Independent or Libertarian on primary election day. The caveat: You must remain affiliated with the party for a minimum of three months before you’re allowed to change your registration to unenrolled again, or switch to another party.

In open primary states, voters may choose which party’s ballot to vote on without registering with the party.

Maine’s system could affect the future of ranked-choice voting because it’s possible the June primary won’t interest a lot of unenrolled voters.

Unenrolled voters make up nearly 37 percent of the electorate, according to the latest voter registration statistics from the Maine Secretary of State. Democrats have 32 percent, followed by Republicans (27 percent), Greens (4 percent) and Libertarians (.05 percent).