Capitol Notebook: Ranked-choice voting heads to high court

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Lawyers from the state’s top firms have lined up on all sides of a debate over the constitutionality of a radical new voting method enacted by Maine voters in November.

The dispute over ranked-choice voting now heads to the Supreme Judicial Court, where arguments will be heard in April.

If ranked-choice voting is upheld, Maine would be the first state to use the new method of electing all state and federal officials where voters rank candidates, and in successive rounds of vote counting, eliminate last-place candidates until you eventually find a majority winner, sometimes after many rounds.

Voters approved the ranked-choice system last November, and the unresolved questions around its constitutionality have brought it to the state’s highest court.

The key question on constitutionality revolves around the fact Maine’s Constitution now states that the winner of these elections are decided by a plurality, and don’t require a majority.

Senate Republicans, joined by some Democrats, have asked the court to declare a “solemn occasion” and determine if RCV conforms to the Constitution. They worry that if the issue is not resolved prior to next year’s elections, a plurality winner in the first round of voting could bring a lawsuit on constitutional grounds.

Political players on all sides of the spectrum, from Senate Democrats to the Maine Heritage Policy Center, filed legal briefs on the question.

Attorney General Janet Mills, the chief critic of RCV constitutionality, cites the plurality provisions in her arguments.

“The ranked choice statute violates the plain meaning of the relevant Constitutional provisions and ignores their history,” she argues. “The Constitution must be amended before such fundamental changes in Maine’s electoral process can occur. … The citizen initiated law to establish ranked choice voting creates a fundamentally different system of casting ballots, counting votes, and determining the outcome of elections for the offices of governor, state senator and representative than the one designed by the framers of Maine’s constitution.”

Before they even decide to rule on the matter, the justices must find that it is appropriate for them to do so, and that the question is truly a “solemn occasion” that would justify their ruling on the issue. Lawyers backing RCV argued that it was not appropriate for justices to intervene because the RCV vote last year represented the will of the people, and it is now the law.

Kate Knox of Bernstein Shur, representing some Senate Democrats, argued justices should not interfere with the political process, or give an opinion on a law already on the books. She argued that any questions should be resolved through litigation on an actual case, or controversy on a developed record and that the Court should not intervene at this point.

A deep dive into Maine’s 19th century history, which provides the backdrop for the plurality language now in the Constitution, was outlined by lawyers for the Republican House members and the Maine Heritage Policy Center. They cited the hotly disputed election in 1879, where the lack of a majority vote for governor almost brought armed conflict to Augusta.

That election was disputed, there was an attempted seating of rival Legislatures, and some suspect shenanigans as outgoing Gov. Alonzo Garcelon, a Democrat, challenged the election of opposition legislators, throwing the Republicans into a fury.

Hannibal Hamlin and James G. Blaine rushed back from Washington. Hamlin, a former vice president, was quoted as saying, “If they do usurp the laws of the State, I favor going to the State House and take the revolutionists by the nap of the neck and pitch them into the stream, and I will be one to go and assist.”

Augusta was close to armed struggle, until Civil War hero Joshua Chamberlain was called in and calmed the waters.

That was a true constitutional crisis, and led to the change in Maine’s Constitution, approved by voters in 1880, to decide elections by a plurality. The RCV proposal, if upheld, would be as dramatic a change in Maine elections.

Portland resident Marian McCue is the former editor and publisher of The Forecaster.

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