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:
Prior to the oral argument the court will receive 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 will be there. We are preparing to submit a brief arguing in support of the law.
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 will be 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. [Note that location of oral argument on April 13 has changed since the issuance of the original procedural order. It will be held at the Capital Judicial Center in Augusta.]
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.
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.
Watch this cool video that shows how RCV works.
✓ 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.
✓ 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.
The League's Position on Ranked Choice Voting, also called Instant Run-off Voting
The League's 2008 - 2011 Study materials on RCV then called Instant Run-off Voting
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.
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:
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.