Staff with the Maine Secretary of State's Office Wednesday resumed the ranked-choice voting count for Maine’s 2nd Congressional District race, as a federal judge began reviewing a request from incumbent Rep. Bruce Poliquin’s campaign to issue a restraining order to stop the count. They expect to finish the tabulation Thursday.
After a hearing Wednesday in U.S. District Court in Bangor, Judge Lance Walker said his decision on a temporary restraining order won't come until Thursday, at the earliest. Meanwhile, Maine Secretary of State Matt Dunlap said his office intends to proceed with the vote count as planned.
"I believe we have a legal obligation to keep going," Dunlap said.
Lee Goodman, Poliquin’s Washington DC-based attorney and a former chairman of the Federal Elections Commission, said he asked the judge Lance Walker to hear the whole case in an expedited hearing.
“We offered the court the opportunity to consider the motion for temporary restraining order and the motion for a primary junction in one swoop today, in one hearing, out of respect for the court’s time and efficiency,” said Goodman.
The hearing went for two and a half hours. Walker heard arguments from several parties, but deferred taking testimony from expert witnesses on constitutional law until after he decides on whether to halt the implementation of ranked-choice voting.
Assistant Maine Attorney General Phyllis Gardiner, who represents Dunlap in the case, said stopping the ballot count would harm the integrity of the ranked-choice voting process. She pointed out that Maine voters have twice endorsed ranked choice voting.
James Kilbreth of Portland, one of Jared Golden’s attorneys, argued that it would be unprecedented for Walker to order a halt to the ballot count or to declare Poliquin the winner.
James Monteleone, who represented independent candidate Tiffany Bond and the Committee for Ranked-Choice Voting, said the challenge comes very late in the game.
“Any candidate that had reason to doubt its constitutionality had ample time to present these questions to the court at a point in time that a conclusion could be reached, that guidance could be given by the court and voters would know when they went to the polls exactly how their votes would be counted,” said Monteleone.
Poliquin and three other voters say the election initiative approved two years ago violates the U.S. Constitution in several ways. But some legal scholars and ranked-choice advocates say Poliquin’s challenge is dubious and motivated by the fact that he could lose his 2nd District re-election contest to Democrat Jared Golden after the runoff is completed this week.
Poliquin led Golden by roughly 2,000 votes heading into the runoff, but an exit poll conducted by FairVote, Colby College and the Bangor Daily News suggests that Golden could win the runoff round with the help of second- and third-place rankings of voters who picked independents Will Hoar or Tiffany Bond as their first choice.
Addressing reporters at the State House on Tuesday, Poliquin attempted to frame his lawsuit as a defense of longstanding precedent for how federal elections have been carried out — that the winner is the one with the most votes on Election Day.
“What bothers is me is that we do not know if this vote-counting process is legal under the U.S. Constitution,” he said. “My job is to make sure I uphold and defend the Constitution.”
Earlier on Tuesday, Goodman, attempted to make the legal argument that Maine’s ranked-choice voting law violates the U.S. Constitution in several ways.
He said state election officials should halt the runoff process now and wait for a federal judge to rule on the request for an injunction.
“We believe that to respect the people of Maine, we ought to wait until a federal court has given us that declaration,” he said.
But legal experts and national advocates for the ranked-choice voting law are skeptical of the lawsuit, for reasons that go beyond its legal arguments.
Michael Morley, an associate professor at the Florida State University College of Law, said the timing of Poliquin’s lawsuit — after the election — probably won’t work in his favor because of something called laches, a legal term of art that essentially means that it comes too late.
“Courts are very reluctant to change the rules of an election after it’s already occurred,” he said.
But Goodman said during a press conference on Tuesday that filing the lawsuit earlier may have been too soon to get a favorable ruling.
“I believe everybody was hoping that we would never reach this point,” he said. “But we did reach this point.”
Goodman also said it wasn’t clear earlier that ranked-choice voting would be used, a curious statement given that state election officials declared months ago that it would be used for congressional races on Election Day. It was also used during the June primaries.
Goodman also asserts that ranked-choice voting violates the U.S. Constitution because winners must obtain a majority rather than just a plurality.
But Morley said that argument would mean that the several states that use runoffs to determine election winners would also be in violation of the law. He also noted that the court opinion that Poliquin’s lawsuit is leaning on merely allowed states to use plurality elections to determine winners.
“But that is different from saying that plurality-based voting is constitutionally mandatory — that you have to use plurality-based voting,” he said.
Morley also challenged the lawsuit’s assertion that ranked-choice voting violates the constitution’s equal protection clause in the 14th Amendment because voters who pick just one candidate in a race have less of a say in the outcome of the election than those who rank multiple candidates.
Under ranked-choice voting, voters rank candidates in order of preference. If one of the candidates obtains a majority after the first count, they win. If there’s no majority winner, the candidate with the fewest first-place rankings is eliminated and each of their voters’ second choices are added to the tallies of the remaining candidates. The process continues this way until the ranking tabulation produces a winner or all the ballots are exhausted.
Morley said that under ranked-choice voting, all voters have the chance to rank as few or as many candidates as they want.
“If it turns out those second- and third-order preferences have already been eliminated from the running, well that happens in the context of other elections. It’s called voting for the losing candidate,” he said.
Rob Richie, president of FairVote, a group pushing ranked-choice voting in other states, said the lawsuit follows a national trend of politicians filing lawsuits when they don’t like election results.
“It’s essentially a ratcheting up of sore-loser behavior. And that’s the overall frame for this,” he said. “We see nothing in the lawsuit that is going to stick.”
Golden, who could be the first candidate to unseat an incumbent in the 2nd Congressional District since 1916, issued a statement saying Poliquin’s court challenge is an affront to the law.
— Jared Golden (@golden4congress) November 13, 2018
And the law is what state election officials say they intend to follow until a judge tells them to stop counting ballots.
Secretary of State Matt Dunlap the team counting ballots will continue Thursday at 9 a.m. He said they have about 20 boxes of ballots to enter into the high-speed tabulator. While they could conceivably complete that process Wednesday afternoon, they’ve previously agreed to provide a two-hour notice so that the press and all the attorneys watching count can be there to observe it.Dunlap said his office will still provide the two-hour notice tomorrow, so it’s possible that there will be a count in the early afternoon – potentially around the same time that U.S. District Court Judge Lance Walker decides whether he’ll intervene in the count.
Update 5:30 p.m. November 14, 2018.