Republican 2nd District Congressman Bruce Poliquin filed a federal lawsuit Tuesday against Maine’s Secretary of State Matthew Dunlap in an attempt to stop a tabulation of ranked-choice ballots in his race against Democratic challenger Jared Golden.

The suit filed in federal court in Bangor is asking for an injunction against Dunlap to stop what would be the first congressional race in the nation to be decided through ranked-choice voting. Neither Poliquin nor Golden secured a majority of the vote in the first round of counting, pushing the tabulation to voters’ second choices in an attempt to determine which candidate has the support of more than 50 percent of voters.


Maine voters have approved the process twice at the ballot box.

Poliquin’s suit claims the use of ranked-choice voting violates the U.S. Constitution because the document “sets a plurality vote as the qualification for election” to Congress.

Poliquin is joined on the lawsuit by three registered voters from the 2nd District, including Penobscot County Republican Committee chairman Brett Baber, who is an attorney from Veazie.

“Instead of respecting this important constitutional principle, the RCV Act directly contravenes it by denying individuals who obtained the highest number of votes after the first round of balloting – in this case, Bruce Poliquin – from being declared the winner of the general election,” reads the complaint.

In a related development, the plaintiffs also sent a letter asking Dunlap’s staff to stop processing ballots ahead of a ranked-choice run-off that is expected to happen on Wednesday.

“Given this filing, we respectfully request that you preserve the status quo and cease further run-off calculations until such time as the court has had a chance to address plaintiffs’ constitutional concerns,” attorney Joshua Randlett wrote to assistant attorney general Phyllis Gardiner, who provides legal counsel to the Secretary of State’s office. “In our view, it is in the best interest of the people of the State of Maine as well as the Secretary of State to receive a definitive declaration on the constitutional issues before proceeding further with the ranked-choice voting tabulations.”

As of late Tuesday morning, ballot processing was continuing at a steady pace – and would continue until a court orders otherwise, Dunlap’s office said.

“We are aware of the pending litigation,” the Secretary of State’s office said in a statement. “We are continuing to process ballots to complete the tabulation of votes and will continue to do so. If we receive a court order to halt the process we will review it with our legal advisors.”

Republicans have long panned the state law as unconstitutional, although the state’s constitution remains silent on how federal elections should be conducted.

Poliquin is leading Democratic challenger Jared Golden by roughly 2,000 votes, according to unofficial election results. The two-term Republican congressman and Golden – a Marine Corps veteran and state lawmaker – each have roughly 46 percent of the vote. But because neither received more than 50 percent, votes cast for independents Tiffany Bond and William Hoar – who received 8 percent combined – will be reallocated based on who those voters ranked second on their ballots.

On Monday, staff with Dunlap’s office continued scanning paper ballots from across the largest and most rural congressional district east of the Mississippi River. Ballot counting was ongoing Tuesday as the lawsuit was filed.

Digital files supplied by towns that scan ballots at the polling place already had been loaded into the system by Monday morning. But Deputy Secretary of State Julie Flynn estimated Monday night that ballots from 150 towns that hand-count ballots still had to be prepped and scanned into the computer system before all voting results could be run through the ranked-choice algorithm.

Poliquin’s campaign has raised concerns about ballot boxes sent to Augusta without padlocks while the Maine Republican Party asked Dunlap to reassign a staffer involved in the ranked-choice processing who had “liked” tweets supporting Golden. Dunlap responded that all ballot boxes – even those without padlocks – have arrived with a metallic seal that would alert staff to any tampering after the ballots left the polling location.

He also accused Republicans of attempting to undermine voter confidence in the election system.

“I think it’s intended to be a distraction, it’s intended to cast doubt on this process,” Dunlap said on Monday. “And I think it’s irresponsible and a disservice to the people of Maine.”

Besides Poliquin and Baber, the lawsuit was filed on behalf of two other 2nd District residents, Terry Hamm-Morris and Mary Hartt. None of the four plaintiffs ranked their votes during the November 6 election, according to their complaint.

Jon Breed, the campaign manager for Golden, said Poliquin was trying to change the rules after votes had already been cast.

“If Rep. Poliquin’s concerns were anything other than in self interest, he should have filed this lawsuit before votes were cast, or when the Maine Republican Party challenged Maine’s election system last year,” Breed said in a prepared statement. “Bruce Poliquin knew the rules going into this election. The Secretary of State must count every vote according to Maine law until a majority winner is clear.”

But Poliquin in a Facebook post continued to say voters were confused about ranked choice voting restating previous Republican arguments about the law.

“This system only adds additional cost to taxpayers, creates overwhelming confusion for our citizens, and is ripe for mishandling and unlawful electioneering actions, as evidenced already,” Poliquin wrote. “Mainers deserve better than their money being wasted, their frustrations growing, and their sacred right of voting being manipulated.”

It was not immediately clear how soon the court wold take up the case. The deadline for responses to the request for a preliminary injunction is Dec. 4.

The case has been assigned to Judge Lance Walker.

Walker was first appointed a Maine District Court judge by Gov. Paul LePage in 2014 and has been on a fast track since. He was elevated to Maine Superior Court a year later and in April was nominated by President Trump to serve on the federal bench. He was confirmed by the U.S. Senate in October.

John Brautigam, an attorney for the Committee on Ranked Choice Voting, said they would be asking to join the lawsuit as a friend of the court arguing against stopping the ranked choice tabulation.

Brautigam said the ranked choice voting laws have previously been upheld by state and federal courts and he believed Maine’s law would also withstand any federal legal challenge.

“We are confident this law will be upheld in Maine,” Brautigam said. He also said stopping the tabulation process was not in the best interest of voters.

“I don’t see how there is any harm to anybody by having the law, that was implemented by the voters and reaffirmed by the voters upheld,” Brautigam said. “This process needs to be completed. They are about one day short, 24 hours, of completing it and to interrupt that process and start throwing up obstacles before they complete the process is not going to be of service to anyone.”

Also weighing in Tuesday was the Maine Center for Clean Elections and the League of Women Voters of Maine, which backed the ranked-choice voting law in 2016 and 2017.

“Ranked choice voting has been reviewed by Maine courts four times in the last two years; we have no doubt that the federal court will uphold the law. Ranked choice voting is here to stay as the voters have twice demanded, and we will fight to protect it,” Jill Ward, the president of the League of Women Voters, said in a prepared statement.

Ward cited four different times Maine courts have issued rulings on the law including:

– In May 2017, the Maine Supreme Judicial Court issued a unanimous advisory opinion, concluding that parts of the new law that apply to general elections for the state Legislature and governor are unconstitutional under the Maine Constitution but noted the state’s constitution did not govern primary or federal elections.

– In April 2018, a Kennebec County Superior Court justice granted the Committee for Ranked-choice Voting a temporary restraining order, requiring the office of the Secretary of State to continue implementing ranked choice voting for the June 2018 primary election.

– In April 2018, in response to a request by the Maine State Senate seeking a declaratory judgment and injunctive relief, the Maine Law Court confirmed that ranked choice voting would take effect for the June 2018 primary election.

– In May 2018, a federal judge denied the Maine Republican Party’s request to throw out the ranked choice voting system for the Republican June 12 primaries.