Attorneys for Republican Congressman Bruce Poliquin attempted to persuade a U.S. District Court judge Wednesday that Maine’s landmark ranked-choice voting law violates the U.S. Constitution because its unique runoff system produces a “faux majority” winner of elections and disenfranchises voters.
Those arguments were presented to U.S. District Court Judge Lance Walker during a hearing that could have significant ramifications for the voting system that Mainers approved via ballot initiative two years ago. The legal challenge could also be just the first step in Poliquin’s attempts to reverse a 2nd Congressional District race won by his opponent, Democrat Jared Golden, and is part of a broader effort to invalidate a voting method that some Republicans view as an existential threat.
Supporters of the system say that Poliquin’s attorneys are using an array of sometimes contradictory claims against the law and that their failure could ultimately bolster ranked-choice voting against what has so far been a withering legal and political campaign.
The case is also being watched closely by national advocates for ranked-choice voting who hope to implement the system in other states.
The arguments were highly technical, often delving into theories of voting behavior and intent. Poliquin’s attorneys attempted to argue that the ranked-choice voting method disenfranchises voters.
Maine’s Secretary of State, a defendant in the case, and Golden’s attorneys countered that the system is straightforward and gives voters greater freedom to express themselves.
Poliquin held a slight lead after the first round of voting on Election Day, according to unofficial results. However, Golden vaulted ahead during the runoff when the second- and third-place rankings of voters who picked independent candidates Tiffany Bond and Will Hoar first. Golden’s apparent victory marked the first election in which a candidate for federal office was selected using ranked-choice voting.
Under ranked-choice, voters rank candidates in order of preference. If a candidate gains a majority of votes after the initial count, they win. If no candidate receives a majority after the initial count, the election proceeds to a runoff and the rankings of eliminated candidates are used to determine the winner.
Poliquin’s attorneys used James Gimpel, professor of government at the University of Maryland, as an expert witness. Gimpel, who according to court documents is being paid $300 an hour by Poliquin’s attorneys, argued that ranked-choice disenfranchises voters because it’s not a traditional runoff and voters can’t strategically rank the candidates because they don’t know which candidates will advance to the runoff round.
“This leaves them clueless!” Gimpel thundered at one point during his testimony.
Jamie Kilbreth, an attorney for Golden, attempted to portray Gimple as an unreliable expert, noting that he testified last year in favor of a gerrymandered congressional district in Pennsylvania that was struck down by the courts.
Kilbreth also claimed that Gimpel’s arguments in the Maine case were wildly speculative and theoretical – not based on any analysis or interviews with Maine voters. He also questioned Gimple’s knowledge of the National Republican Congressional Committee's paid effort to find and voters who would claim they were confused by ranked-choice voting. Gimpel said he had no knowledge of such a campaign.
Phyllis Gardiner, the assistant attorney general representing the Secretary of State, refuted claims by Poliquin's attorneys that voters were somehow disenfranchised because they didn't know the candidates in the runoff. She said ranked-choice didn't affect voters' constitutional rights any more than a traditional election.
"The purpose of ranked-choice voting is not to see whether voters can guess correctly ... the purpose is to allow voters to express their true preferences," she said.
Judge Walker gave the two sides a wide berth during arguments, jumping in only occasionally to seek clarification. He overruled repeated objections by Golden’s attorneys to Gimple’s testimony, saying, “I will give the witness's (Gimpel’s) testimony the weight that it deserves.”
After the hearing, Lee Goodman, Poliquin's lead attorney would not say if he thought Walker would rule his way.
"I believe Judge Walker heard all sides, is giving all sides a fair hearing and is trying to do the best he can with some very weighty and difficult legal issues," Goodman said.
Legal experts have said that Poliquin’s case has little or no chance of success. Walker appeared to affirm those opinions last month, dismantling several of Poliquin’s constitutional claims when he ruled against halting the runoff tabulation.
Poliquin and his campaign have gone on to say that the runoff tabulation was conducted by a “black-box algorithm” and “artificial intelligence.” However, the election results have been replicated independently by several individuals who have used publicly available ballots from every town in Maine’s 2nd Congressional District and tabulation rules.
Poliquin has also requested a recount of the results. That process, which is expected to take about a month, begins Thursday at a counting facility in Augusta. Election officials announced Monday that the recount is likely to be completed in January because of the holiday season.
Completion of the recount could coincide with the swearing in of the new Congress in January. Golden has been attending orientation ceremonies in the interim. His attorneys have described Poliquin’s legal challenge as sour grapes and an effort that could harm constituent services during the transition of power.
Walker said he expected to have a decision by next week.
Originally published Dec. 5, 2018 at 1:03 p.m. ET.