How A Very Narrow Ruling In Maine Supreme Court Could Affect The Presidential Election

Aug 31, 2020

The Maine Supreme Court is being asked to decide when a petition circulator needs to be a registered voter — before or after they turn in petitions for verification. This might sound narrow, but far more than that is riding on the court’s ruling, because this question is about ranked-choice voting in the presidential election.

Maine Public’s Mal Leary spoke with All Things Considered host Nora Flaherty to explain how.

Flaherty: Why is this more than a dispute over the law on circulating petitions?

Leary: Well, in a word, it’s that this decision could decide who’s elected president of the United States. Remember, Donald Trump took Maine’s 2nd Congressional District in 2016, by about 10 percentage points over Hillary Clinton. He focused a lot of energy, campaigning in the district five times, spending a lot of money on advertising and get-out-the-vote efforts.

It’s important to remind folks here that election of the president is to the Electoral College, and while right now, Democrat Joe Biden has about a 10 point lead overall in the polls among all voters, the race is very close in a lot of states with a lot of electoral votes in play. Campaign strategists could see scenarios where the next president wins by one or two electoral votes.

So what will the court ruling settle besides this very narrow issue concerning petition circulators?

Republican strategists foresaw that the 2nd District could well be in play this election, so when Democrats used their majorities in the Legislature to extend ranked-choice voting to the presidential contest, the Republicans launched a so-called people’s veto petition drive. So under the state constitution, if enough signatures are filed, ranked-choice voting for president is suspended until the voters decide the issue. So the practical impact of a court ruling is ranked-choice voting is used this fall, or it’s not used this fall.

So just to clarify, Maine has voted on a popular referendum for ranked-choice voting how many times?

We’ve had three votes and people have upheld it. But we’ve never had the question of presidential elections being applied under ranked-choice voting until the Legislature passed it themselves last year.

And campaign experts believe that President Trump gains an advantage by not having ranked-choice voting, so they want to block it?

That’s right ranked-choice voting is in essence a form of runoff election. Under the traditional method of counting votes, the candidate that gets the most votes wins. It’s a plurality election. But under ranked-choice voting, the voters get to list their second or third or more choice, depending on how many candidates are on the ballot. And this year, in addition to Republican Trump and Democrat Biden, there are candidates from the Green Party, the Alliance Party and the Libertarians. So when you get to the ranked-choice voting part of the process, the 3%, 4% or 5% that they collectively get could end up tipping the election to either Trump or to Biden.

So they are hoping for a spoiler?

Exactly. And that has happened, if you recall. In the 2nd Congressional District in 2018, Jared Golden was behind in the plurality. But when ranked-choice voting was applied, he was elected to Congress.

So when will the court decide this appeal?

Well, the court gets to set its own pace, even on such important and high-profile cases as this one. They have scheduled oral arguments on the issue Thursday afternoon. Then they have to deliberate and decide the appeal and no one’s quite sure how long that will take.