Judge orders state to use ranked-choice voting for June primaries

By Kevin Miller and Scott Thistle, Portland Press Herald | Apr 04, 2018

A judge ordered the Secretary of State’s office to move forward Wednesday with implementing ranked-choice voting for Maine’s June primaries despite concerns about conflicting language in state law.

Meanwhile, an attorney representing the Maine Senate filed a new complaint asking the court to prohibit Secretary of State Matthew Dunlap from going forward without funding for the new voting system in place.

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In a 14-page opinion, Kennebec County Superior Court Justice Michaela Murphy agreed with advocates for ranked-choice voting that uncertainty over the election process could cause “irreparable harm” at this stage. As a result, Murphy agreed to the Committee for Ranked Choice Voting’s appeal to Dunlap to continue preparing to use ranked-choice voting for gubernatorial, congressional and legislative primaries on June 12.

“The uncertainty that halting the ranked-choice voting implementation process at this late date is significant,” Murphy wrote in her opinion, which was dated Tuesday but did not become public until Wednesday. “Clarity, stability and public confidence are essential to ensure the legitimacy of Maine elections.”

Dunlap had said last week that his office would continue working to implement ranked-choice voting while seeking clarity on the issue from the Legislature and courts. Voters approved switching to a ranked-choice system in a November 2016 ballot initiative only to see the Legislature vote last year to delay implementation amid concerns

In a traditional election, whoever gets the most votes wins, whether it is a majority or a plurality, which can be less than 50 percent. Under the ranked-choice system, voters select candidates in order of preference. If no candidate receives more than 50 percent of the vote, the candidate with the fewest first-choice votes is eliminated. Voters who preferred the eliminated candidate would then have their ballots added to the totals of their second-ranked candidates, and the ballots would be retabulated. The process continues until one candidate has a clear majority of votes.

Last week, Dunlap cast doubt on Maine’s plans by pointing to the discovery of conflicting language in the existing law dealing with whether candidates are elected by a plurality of majority of votes. The Committee for Ranked Choice Voting quickly filed a complaint seeking a court injunction order requiring Dunlap to move forward with implementing the law.

Murphy’s ruling means that Maine will be the first state in the nation to use ranked-choice voting during statewide elections this June. At the same time, Maine voters will also be casting ballots about whether to continue using the process in future elections. That’s because the Committee for Ranked Choice Voting collected enough petition signatures for a “people’s veto” of a bill passed by the Legislature last year that delayed and potentially repealed the switch to a new system.

House Speaker Sara Gideon, D-Freeport, said Murphy’s ruling represented the will of the voters.

“Mainers have said clearly that they want election reform and they want it now,” Gideon said in a prepared statement. “It is now the duty of the entire Legislature to appropriate the funds required for the Secretary of State to run our election.”

In the new complaint filed Wednesday on behalf of the Senate, attorney Timothy Woodcock laid out several concerns. Among other issues, he asks the court to recognize the separation of powers between the branches of government. He also argues that Dunlap lacks the constitutional authority to spend funds that have not been appropriated for a ranked choice election. Woodcock also ask the court to find the law in question “lacks sufficient standards to constitute a valid delegation of lawmaking and rulemaking authority by the Legislative department to the Secretary of State for the development, implementation and administration of Ranked-Choice voting in the June 12, 2018 primary elections…”

In addition, he argues that if Dunlap proceeds with rulemaking for the primary election in June, that amounts to “an arrogation” of the Legislature’s authority.

The Maine Senate voted 21-13 on Monday to give Senate President Michael Thibodeau, R-Winterport, the authority to seek intervenor status in the case or to bring a new legal action after several other constitutional issue were brought to light. While the vote on the measure was bipartisan, only three Senate Democrats joined with Republicans.

Thibodeau has said that the integrity of the state’s election system could be placed in doubt without a resolution of the issues by a court, but Democrats have largely stood behind the ballot-question law and the vote taken in 2016.

A spokesman for Thibodeau said he had yet to review Murphy’s ruling Wednesday morning.

John Brautigam, an attorney for the League of Women Voters of Maine, which supports ranked-choice voting, said Woodcock’s complaint on behalf of the Senate was “a day late and a dollar short.

“The people’s veto language was finalized on November 6 – 21 weeks ago. The ballots go to the printers a week from Friday. By waiting this long they forfeited any claim to having a judge rule in their favor,” Brautigam wrote in an email message. “The legal claims are also without merit.”

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