Making Democracy Work

Ranked Choice Voting

What's Happening Right Now

Maine's landmark ranked choice voting (RCV) law is headed to court.

On Thursday, February 2nd, the Maine Senate voted to ask the state Supreme Court for a solemn occasion regarding the constitutionality of the law. The Court would first decide whether to grant the solemn occasion, and if so, would rule on the constitutional questions posed by the Senate.

On Tuesday, February 7, the Maine Supreme Judicial Court issued its briefing schedule for the solemn occasion:

  • Briefs were due March 3.
  • Responsive briefs were due March 17.
  • Oral argument was on April 13.

Here is the League's brief. You can find all the court documents here at the web site of the State of Maine Judicial Branch.

Prior to the oral argument the court received legal briefs from proponents and opponents of RCV and any other interested persons. The court also invited briefs from the governor, secretary of state, both houses of the legislature, and the attorney general. LWVME is there.

This legal proceeding -- known in Maine as a "solemn occasion"-- is a rare exception to the general rule that courts should not engage in legal analysis other than that which is necessary to decide regular cases brought by opposing parties and litigated through the lower courts.

Opinions in solemn occasion cases are not binding and are merely "advisory." But the court's opinion could have repercussions for any future decisions of the legislature regarding full implementation of the law for the 2018 cycle. And it would foreshadow how the court would apply the law in the event of a challenge during or after the 2018 election.

The RCV law approved by voters in November 2016 applies to races for governor, the Maine legislature, and Congress. Some of the arguments against the law apply only to the state races.

Oral argument in the RCV case was open to the public beginning at 8:30 a.m. on April 13th in Courtroom 7 (the historic ceremonial courtroom) of the Capital Judicial Center, 1 Court Street, Augusta. An audio recording of the oral argument is now available here.

More about the Solemn Occasion

Ranked Choice Voting appeared as Question 5 on the ballot in November 2016. Yes on 5 has been declared the winner, 52% to 48%. RCV has been approved for Maine. Read the joint media release.

Now the work of implementing the new law begins in earnest.

On February 2, 2017, the Maine State Senate voted to request a Solemn Occasion. Ten senators dissented from the request, arguing that the request will needlessly delay and cast doubt on the law. You can see the roll call vote here. This procedural move calls into question the constitutionality of Maine's Ranked Choice Voting law. The Senate has voted to ask the Maine Supreme Judicial Court for a solemn occasion, under which the Court might issue an advisory opinion on the constitutionality of RCV.

Here's the text of the order, Senate Order 12.

We think the solemn occasion is inappropriate at this time and that the Legislature should focus on implementing the will of the voters without delay. We will be weighing in with the court to argue in favor of ranked choice voting.

We believe:

  • The enacted law has the presumption of constitutionality. The Legislature should honor the will of the people and proceed to implement this law in full for 2018.

  • If the Legislature had passed this law, they would presume it to be constitutional; they should apply the same standard to a law passed by the voters.

  • The standard for a solemn occasion is very high in order to preserve the separation of powers between the judicial and the legislative branches.

  • The regular order should be preserved. The Court should not be asked to weigh in prior to the implementation of the law.

  • If an aggrieved party chooses to raise a legal challenge after 2018, it will be addressed by the courts then. But it is not clear that such a challenge will be raised then or ever.

If the Senate votes to make such a request of the Court, the Court will have to decide first whether the current circumstance rises to the high bar for a solemn occasion. If it does not, there is no further action required of the Court. If the Court does find a solemn occasion exists, it will issue an advisory opinion on the constitutionality of the new law. An adverse opinion would not strike down the law but would advise the Senate whether action might be needed by the Legislature to clear the constitutional impediment.

While we believe the constitutional arguments are strong in favor of RCV, as we have stated previously, we understand that the question of RCV constitutionality is not settled law. Here is our previous statement on RCV constitutionality. We believe the solemn occasion will not firmly settle that question and is out of order.

There may be some occasions where the Court should weigh in on a legislative issue, but this is not one of them. The law has been duly enacted by the people, and we have not seen a legitimate need for a legislative question to the Supreme Court regarding the constitutionality of a law already on the books -- especially one enacted by the people.

How Does Ranked Choice Voting Work?

Ranked choice voting lets voters rank their choices based on individual preference. First choices are counted, and if no candidate has a majority of the vote, an "instant runoff" occurs in which the candidate with the least support is eliminated. Voters that picked the eliminated candidate as their first choice have their vote counted for their next choice. In a three-person race, we now have a winner with majority support in the final round of tabulation. In a race with more than three candidates, this process is repeated until one candidate has a majority. Read more about it in RCV Basics.

Ranked Choice Voting Sample Ballot for Maine

Watch this cool video that shows how RCV works.

Why is RCV Considered as an Alternative to our Current System?

Our current voting system, plurality voting, works well when there are only two candidates because one of them is guaranteed to win with majority support. But three and four-way races among competitive candidates are common in Maine and can lead to results where the winner fails to receive a majority of the votes cast (50% + 1). Dating back to 1974, the winner has failed to receive a majority vote in 9 of the last 11 gubernatorial elections in Maine. In 5 of those races, the elections were won with less than 40 percent support. Given the frequency with which this was happening in Maine elections, the League of Women Voters of Maine convened a study in 2008 to consider alternative voting systems. That study concluded in 2011 with an endorsement of ranked choice voting as the best way to ensure a majority vote in competitive, single-seat, multi-candidate elections.

What are the Benefits of Ranked Choice Voting?

✓ Gives voters more meaningful choices: Ranked choice voting allows candidates from outside the two major parties to compete. It helps create a richer dialogue on the issues and increases the diversity of views available for voters to consider.

✓ Eliminates spoilers and strategic voting: Ranked choice voting allows voters to support their favorite candidate without worrying that they might "throw their vote away," or worse, split their votes with like‐minded voters and unintentionally help elect the candidate they like the least.

✓ Reduces negative campaigning: Candidates running in ranked choice elections must ask for second and, sometimes, third choice rankings. Voters are less likely to rank a candidate highly who is negative toward their preferred candidate.

✓ Reduces the influence of money in politics: Campaigns and special interest groups spend a lot of money on negative advertising. By making negative advertising less effective, ranked choice voting reduces the need for, and influence of, money in politics.

Where is RCV being Used?

✓ More than 50 colleges and universities use ranked choice voting for some or all of their student government elections.

✓ 11 cities across the United States currently use ranked choice voting to elect city officers, including San Francisco, Cambridge, and Minneapolis.

✓ 5 states provide military and overseas voters with ranked choice ballots to participate in federal runoff elections.

✓ 4 countries, including Australia, Ireland, Malta, and New Zealand, use ranked choice voting in federal elections.

✓ Numerous public and private sector organizations, including the Academy of Motion Pictures Arts and Science, use ranked choice voting for their elections.

Read more about who uses RCV.

Additional Information

Ranked Choice Voting in the News

High court hints it will have to rule on Maine ranked-choice vote legality,Bangor Daily News, April 13, 2017.

Maine's highest court hears ranked-choice voting arguments, AP story in U,S. News & World Report, April 13, 2017.

Maine AG, Republicans tell high court they believe ranked-choice voting is unconstitutional, League says otherwise, Bangor Daily News, March 3, 2017.

Briefs Filed in Ranked-Choice Voting Constitutional Challenge, Maine Public reports, March 3, 2017.

Maine Adopts Ranked-Choice Voting. What Is It, and How Will It Work? in the New York Times, December 3, 2016.

Read the joint media release.

Maine starts planning ranked choice voting systems, League president Jill Ward quoted in AP article, November 11, 2016

Should we vote for candidates in order of preference? Newsweek article, October 30, 2016.

For Those Who Don't Want to Vote for the Lesser of Two Evils, yes! magazine article, October 13, 2016.

How ranked-choice voting could make voters more open to third-party candidates, PBS Newshour, September 2, 2016.

Are 'Instant Runoffs' a Better Way to Vote?, Stateline from the Pew Charitable Trusts, September 2, 2016.

How Paul LePage got elected, and how Mainers think they can fix a broken voting system, Boston.com September 1, 2016.

Group promotes voting change for Maine with ranked-choice beer tastings,, Portland Press Herald, August 24, 2016.

Support ranked-choice voting,, Sarah Palmer's LTE in the BDN, August 5, 2016.

Better way to vote, Gina Coppens's LTE in the BDN, August 2, 2016.

YES on Question 5: Ranked Choice Voting!, Ned White blog post in the BDN, July 23, 2016.

Correcting record about ranked choice voting, Ann Luther's op-ed in the Journal Tribune, June 28, 2016.

Maine Voices: Ranked-choice voting passes every test of true democracy, LWVME President Jill Ward's op-ed in the Portland Press Herald, June 11, 2016.

As a Republican, this is why I support ranked-choice voting, BDN op-ed June 8, 2016.

Maine attorney general says ranked-choice voting may require amending constitution, Portland Press Herald, March 5, 2016.

Maine officials, legislators question legality of ranked-choice voting, Portland Press Herald, January 20, 2015.

Maine election officials certify ranked-choice voting proposal for 2016 ballot, Portland Press Herald, November 18, 2015.

More than 70,000 Maine voters want ranked choice voting on November 2016 ballot, press release from the Committee for Ranked Choice Voting, October 19, 2015.

Our View: Group looks to 2016 for ranked-choice vote, editorial in the Portland Press Herald, January 31, 2015.

No more spoilers, a focus on the issues: 6 reasons it's time for ranked choice voting in Maine, Dick Woodbury's op. ed. in the Bangor Daily News, January 27, 2015.

Maine ranked-choice voting advocates gather signatures, Portland Press Herald, January 3, 2015.

Group collecting signatures for ranked choice voting, WGME, January 3, 2015.

Mainers seek ranked-choice voting petition signatures, Seacoast Online January 1, 2015.

Campaign for ranked-choice voting measure needs about 15,000 signatures, Portland Sun, December 12, 2014.

Ranked Choice, The Times Record endorses RCV, November 16, 2014.

Ranked-choice voting advocates gathered 36,000 signatures on Election Day, story in the Portland Press Herald, November 12, 2014.

Portland Press Herald endorses RCV petition, October 31, 2014.

Advocates of RCV launch petition drive in Maine, story in the Bangor Daily News, October 27, 2014.

Moot Court on Ranked Choice Voting in Maine

Some people, including members of the League of Women Voters, would like to see ranked choice voting used in Maine's statewide elections. However, even some proponents worry that there may be an obstacle: the Maine Constitution stipulates that the governor and legislature be elected by "a plurality of all votes."

Would ranked choice voting be constitutional in Maine?

In February, 2014, The League of Women Voters of Maine convened a Moot Court to explore the constitutionality of ranked choice voting in Maine. We invited members of Maine's legal and public-policy community to hear the arguments, weigh in, and discuss the issues with the advocates and the panel.

We were extremely pleased to have a distinguished panel for this event:

  • Catherine R. Connors of Pierce Atwood
  • James T. Kilbreth of Dummond Woodsum
  • Hon. Daniel E. Wathen of Pierce Atwood

The advocates for and against the question were Timothy Shannon of Verrill Dana and John Brautigam of John Brautigam Esq. LLC. Our moderator was H. Cabanne Howard. Here is Tim's Brief for the Appellee. And here is John's Brief for the Appellant.

Both sides were very well represented. Audience members were polled prior to the arguments and then again after the arguments. These polls revealed no strong consensus among the attendees. After the arguments, the number of undecided votes was greatly reduced, but opinion was still split equally between the Yes and No groups.

The illustrious panel reached a unanimous conclusion that Ranked Choice Voting would not be constitutional in Maine.

You can listen to an audio recording of the Moot Court event here.

Although the moot court panel found as they did, lawyers in and out of Maine continue to be divided on the question. Judge Wathen, for one, was interviewed later, and said, "The case is one on which reasonable minds can and do differ." He conceded that the arguments in favor of RCV constitutionality were persuasive and that the case might be winnable.

In addition, almost two years later, panelist Jamie Kilbreth issued a memo indicating that he had concluded RCV would be constitutional. Here's that memo. You can read more arguments by proponents at rcvmaine.com.

In March, 2016, Maine's Attorney General issued a letter in response to a legislative inquiry indicating that she felt RCV raised significant constitutional issues.

In January, 2016, the League issued this statement regarding the constitutionality of RCV in Maine.