Making Democracy Work

Ranked Choice Voting Outdated Background

Legislative and Legal History in Maine

Recent History

Late on Tuesday afternoon, April 17, the Maine Supreme Judicial Court ruled in favor of ranked choice voting. To quote their ruling, "...ranked-choice voting is the law of Maine with regard to the primary elections on June 12, 2018..." You can read the final opinion here.

That's it. We will have ranked choice voting in the Republican and Democratic primaries for governor, in the Democratic primary for the 2nd Congressional District, and in the Republican primary for State Representative in District 75 (Turner, Leeds, Livermore).

Senate Republicans sued the Secretary of State to stop ranked choice voting, but the suit failed. The Secretary of State, represented by attorneys from the office of the Attorney General, argued that it should go forward, and so it will. The Maine Supreme Judicial Court heard oral arguments last Thursday, and they put this on a fast track. You can read the League's amicus brief here. All the other court records are also available online. Final proofing of ballots for the June 12 primary is on deadline for April 20 at the latest.

Key factors in the case were rebalanced last week when Secretary of State Matt Dunlap sent a letter to the Legislature on April 9 explaining that he didn't need any more money from the legislature to implement RCV for the June primary. At oral argument in court on Thursday, the justices seemed skeptical of the Senate's case. But you never know ....

In the special session on October 23, 2017, the legislature narrowly passed a bill that delays implementation of ranked choice voting until the 2022 elections and repeals the law entirely unless a constitutional amendment passes before then. The League opposed this bill but continues to support a constitutional amendment.

We were disappointed and dismayed that the legislature would completely disregard the expressed preference of Maine voters. The League of Women Voters of Maine issued the following joint statement in response to the legislature's action on LD 1646 An Act To Bring Maine's Ranked-choice Voting Law into Constitutional Compliance:

"In our democracy, legislative decisions should be measured against the standard set by the will of the voters. By that standard, the legislature's actions today failed. Less than a year after the second largest majority of voters in the history of citizen initiatives approved ranked choice voting, the legislature is poised to deny voters the benefits of the law we enacted for the 2018 election cycle. The amended version of LD 1646 also sets in motion a process that is likely to result in the automatic repeal of the entire RCV law in 2021. These attacks on the citizen-initiated law effectively dismiss the people's voice as expressed less than a year ago. We urge our lawmakers to take whatever steps may be available to them to reverse this decision, and preserve and protect the citizen-approved law."

Friday, November 3, was the veto deadline for bills passed during the October 23 special session, and Governor LePage allowed the RCV bill to become law without his signature. It will go into effect 90 days after the special session finally adjourns, November 6. That would give an effective date of February 5, 2018. The bar is high to pass a Constitutional Amendment, and we are far from clearing that bar as things stand. Without a Constitutional Amendment, RCV would be automatically repealed at the end of 2021.

To forestall that outcome, proponents of RCV launched a peoples veto effort to reverse the defacto repeal of RCV passed by the Legislature's special session. They had until February 2, 2018, to gather just over 60,000 signatures to put a peoples veto on the ballot in June, 2018. On Friday, February 2, the people's veto campaign submitted over 70,000 signatures.

Gathering the required number of valid signatures keeps the Legislature's enactment from going into effect on schedule, leaving the RCV law passed by voters in place until the June election, when voters would again weigh in on RCV. In that case, the June primaries would be conducted using RCV, a significant step toward proving the law's effectiveness and establishing a system of implementation by election officials.

The League has endorsed the peoples veto effort. Read our public statement from November 13.

This would be a partial repeal of the recent legislative enactment. The partial repeal would preserve RCV in those races for which there is no constitutional question, while suspending RCV in those races where there are conflicts with the Maine Constitution.

The people's veto campaign to restore ranked choice voting delivered over 70,000 signatures to the Secretary of State by the deadline of Friday, February 2. In doing so, they immediately suspended the law passed by the Legislature that delayed implementation of RCV. Put another way, RCV goes ahead for the 2018 primaries IF at least 61,123 out of those 70,000 signatures is certified. This not only requires use of RCV for the June primaries, but also puts the people's veto on the ballot in the same election. Since the number of signatures far exceeds the required threshold, we are confident that the veto question will qualify for the June ballot. Here is the League's statement from February 2.

The Secretary of State had 30 days -- until March 5 -- to verify the signatures and certify the question for the June ballot.

Meanwhile, late on Friday afternoon, February 16, the Committee for Ranked Choice Voting, joined by eight Democratic candidates, filed suit in Maine Superior Court asking the judge to rule that the Secretary of State must proceed with RCV implementation. You can read Bangor Daily News coverage here. You can read the complaint here. We will post the defendant's factual allegations and legal arguments when they become available.

The lawsuit is based on concerns about whether the Secretary of State has done enough to prepare for implementation of RCV. Lawsuit or no, we expect that the primary elections in June will be conducted using RCV at the same time that we vote on whether to preserve RCV for the future.

On March 5, 2018, the Secretary of State certified the RCV people's veto for the June Ballot. That meant we'll also be using RCV to vote for candidates in the June 12 primary at the same time that we'll be voting to preserve RCV for future elections to federal office. You can read the SOS press release here.

There was a little bump in the road this week when the Secretary of State became aware of some left-over, pre-initiative language in the RCV statute + the law that is in effect through the June election. The conflicting language has to do with whether primary elections are decided by simple plurality or by RCV. But that controversy appears to be put to bed, and it looks like we still are on track for RCV to be used in June.

On Friday, March 30, the Committee for Ranked Choice Voting was in court seeking an injunction requiring the Secretary of State to proceed with RCV implementation for June. It looks like they may get it. Attorneys for the Secretary of State did not object, and no opponents of RCV were present to oppose the injunction, either. The injunction would restore the presumption that RCV will be in effect for June, right back to where we were before we hit this bump.

But it still wasn't over. On Monday, April 2, Senate President Mike Thibodeau brought forward a virtually unprecedented Senate Order, SO 28, authorizing the Senate President to engage legal counsel to represent the interests of the Senate and initiate litigation regarding ranked choice voting. That measure passed with bipartisan support. By Tuesday, the Senate was in court.

The League of Women Voters of Maine filed a brief in that case urging the Law Court to reject legal challenges and uphold ranked choice voting. Briefs were due at noon today. Oral argument in the Maine Supreme Court was held on Thursday afternoon, April 12.

Other Background

Maine's Supreme Judicial Court Weighs in on Ranked Choice Voting.

Ranked choice voting passed as a citizen initiative in November, 2016.

In a unanimous opinion issued on Tuesday, May 23, the Maine court granted the State Senate's request for a solemn occasion on the new law and went on to rule on the merits, indicating their view that ranked choice voting is inconsistent with the Maine state constitution. You can read the opinion here. The opinion applies only to state races (governor, state senate, and state house of representatives). Races for federal office are not affected.

Legislature Fails to Act

Ranked choice voting was one of the last items to be taken up at the end of the last legislative session. LD 1624, the bill introduced by Senator Cathy Breen (D-Falmouth) that would amend the constitution to eliminate the obstacle to full implementation of RCV, failed final passage. We support a constitutional amendment to permit ranked choice voting in state elections, so we're disappointed.

Another bill, LD 1625, introduced by Senator Garrett Mason (R-Lisbon) to repeal the RCV law in total died in nonconcurrence. We strenuously opposed efforts to repeal the RCV law in total.

With this outcome, the entire law enacted by voters in the 2016 initiative remains in force calling for full implementation of the law in 2018,including for those races where the Maine Supreme Court has advised that there may be constitutional issues. This invites a future court challenge and preserves uncertainty with regard to the conduct of the 2018 election.

Where That Leaves Us

The will of the voters should be honored. The opinion of the court must be respected. But there is a path forward, and our elected leaders should take it. To avoid election-by-litigation and still respect the change that Maine voters clearly called for last November, we need the leadership of both political parties to set aside their differences and work together.

The best option now -- one that preserves voters' intent while honoring the Constitution -- is to suspend the use of ranked choice voting in elections for the three offices for which the state supreme court found it unconstitutional: the general elections for the Maine House and Senate and governor. The Legislature should allow ranked choice voting to proceed in the other elections covered by the new law -- primary elections for state and federal offices, and general elections for the U.S. House and Senate. When and if voters pass a constitutional amendment in the future, the law could take effect for all elections.

Our View

The legislature has the opportunity - and the responsibility - to reconcile the law with the constitution.

The Supreme Court opinion is only a partial, temporary setback. Our public officials could and should address the issues identified by the Court by changing the statute to preserve RCV for federal races.

At the same time, we continue to support a constitutional amendment to validate what the voters demanded at the ballot box for state races.

But while the amendment is under consideration, the legislature has the power and obligation to protect those parts of the law that are unrelated to the Court's advisory opinion. We urge them to do so.

Maine has a way forward on ranked-choice voting. Lawmakers should take it. LWVME President Jill Ward's op-ed in the Bangor Daily News, October 4, 2017.

League of Women Voter of Maine Urges Legislature to Honor Will of Voters Regarding Ranked Choice Voting, LWVME Press Release, May 25, 2017.

Augusta must honor the will of Maine voters and ensure full implementation of the law, LWVME issues joint press release, May 23, 2017.

Key Points to Consider

Cost: In his public testimony to the Appropriations Committee, Secretary of State Matt Dunlap said that he didn't need an appropriation in the budget right now, that his office had enough money to begin the planning. In any case, costs are not likely to exceed what voters approved at the ballot last year and may be substantially less.

Timing: We don't need a delay. We can do this for 2018 if we stop arguing about "whether" and start talking about "how." It's not too hard, it's not too confusing, and it's not unusual for RCV elections to be conducted at the same time and on the same ballot with other elections. Here's what that might look like.

Let's get to work. We respect the regular order and stand behind due process, which should include public discussion and rule-making about how best to move forward once the legal and statutory issues are resolved. Working together, we can do this!

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.

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.

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

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 has 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.

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.

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.

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. 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.

The wording of the question that appeared on the ballot is as follows;

Do you want to allow voters to rank their choices of candidates in elections for U.S. Senate, Congress, Governor, State Senate, and State Representative, and to have ballots counted at the state level in multiple rounds in which last-place candidates are eliminated until a candidate wins by majority?

[end table] Over several months beginning in 2013, former State Senator Dick Woodbury met with a working group convened by the League of Women Voters to develop a proposal for ranked-choice voting. Read the proposed legislation here.

In October 2014, Sen. Woodbury and other civic leaders launched an ambitious campaign to collect up to 70,000 petition signatures to bring RCV reform to a public referendum.As of October 19, 2015, they had collected over 70,000 signatures and delivered them to the Secretary of State to put the question on the ballot in 2016. The signatures were certified for the ballot in November, 2015, and the measure was presented to the 127th Legislature in its second session.

On March 15, 2016, the Legislature decided to send the measure directly to referendum, where it will appear on the general election ballot in November, 2016.

Click Here to Learn More or to Sign Up for the campaign.

Maine's Supreme Judicial Court weighs in on Ranked Choice Voting.

In a unanimous opinion issued on Tuesday, May 23, the Maine court granted the State Senate's request for a solemn occasion and went on to rule on the merits, indicating their view that Ranked Choice Voting is inconsistent with the Maine state constitution. You can read the opinion here. The opinion applies only to state races (governor, state senate, and state house of representatives). Races for federal office are not affected.

Ranked Choice Voting was one of the last items to be resolved at the end of this legislative session. LD 1624, the bill introduced by Senator Cathy Breen (D-Falmouth) that would amend the constitution to eliminate the obstacle to full implementation of RCV, failed final passage. We support a constitutional amendment to permit ranked choice voting in state elections, so we're disappointed.

Another bill, LD 1625, introduced by Senator Garrett Mason (R-Lisbon) to repeal the RCV law in total died in nonconcurrence. We strenuously opposed efforts to repeal the RCV law in total.

Two committee amendments are advancing. One passed by the House is based on League testimony and would allow RCV to go forward in primary elections and in general elections for federal office in 2018, while suspending application of RCV to general elections for state offices until such time as we have a constitutional amendment to permit them.

The other amendment, which has not yet been advanced on the floor of either chamber, would repeal RCV only for those races where there appears to be a constitutional impediment, but allow implementation for the other races in 2020 - a two-year delay. We strongly urge the legislature to amend the RCV law to allow implementation of RCV for those elections that are permitted by the Supreme Court's advisory opinion.

With this outcome, the entire law enacted by voters in the 2016 initiative remains in force calling for full implementation of the law in 2018,including for those races where the Maine Supreme Court has advised that there may be constitutional issues.