AUGUSTA — A ballot question that would swap Maine’s traditional election system for one in which seats in Congress and the State House are filled by ranked-choice voting could violate the Maine Constitution, a top state election official said.
Deputy Secretary of State Julie Flynn, the longtime head of the elections office, said the issue involves whether Maine’s governor and legislators can be chosen by a majority of votes, rather than a plurality, as the constitution provides. She said she’s concerned that if voters approve the ranked-choice system in November, candidates elected under the system could be challenged in court.
Flynn said her office has discussed the issue with the Maine Attorney General’s Office and has been advised that the agency “is in agreement with our concerns about constitutionality.”
Kyle Bailey, campaign manager for the Committee for Ranked Choice Voting, a state organization that gathered the signatures to put the question to voters, said the campaign consulted with legal experts and was assured that the system is constitutional. Bailey said that although the constitution makes specific mention of a plurality as the determining factor in State House and gubernatorial races, a system that selects winners with a majority would satisfy the requirement.
“A majority is always a plurality and a plurality isn’t always a majority,” he said. “If you get 52 percent of the vote, you’re the majority winner, but you’re also the plurality winner.”
Bailey acknowledged, however, that the constitutionality of the system is an “unresolved issue” for some. He said the campaign proposes to implement the system in 2018, which would give the Legislature a chance to make changes, such as passing a constitutional amendment, which would need approval by Maine voters. In fact, Bailey said, the constitutional amendment already has been drafted by the League of Women Voters, an organization that backs election reform and has endorsed the ranked-choice voting campaign.
“The first conversation is, do we want to use ranked-choice voting, and if so, let’s make that decision first before amending the constitution,” Bailey said.
If voters support the question and any constitutional barriers are cleared, Maine could become the first state to swap its traditional voting system for ranked choice. The campaign here is backed by election reform advocates in other states. The campaign’s political action committee has received over $163,000 in donations and spent over $173,000, according to its latest finance report.
SEVERAL CONSTITUTIONAL HURDLES
Ranked choice, otherwise known as instant runoff voting, has been adopted for some municipal elections, including in Portland, which first used the system to elect its mayor in 2011.
Flynn doesn’t believe that Portland’s system violates the state constitution, in part because the city’s elections are governed by its municipal charter. Also, the plurality language in the constitution appears in Article V and Article IV, which address the process for gubernatorial and State House elections, respectively.
The Maine Constitution initially required that gubernatorial and State House candidates receive a majority of votes. The change to a plurality system stemmed from the 1878 gubernatorial election when the Democrat-controlled Legislature selected Democrat Alonzo Garcelon after the contest failed to produce a majority winner. Garcelon only received 22 percent of the vote, compared with Republican Gov. Seldon Connor’s 45 percent. Maine amended its constitution two years later to require a plurality vote.
Bailey said ranked-choice voting has survived legal challenges in several states. In each instance, courts have affirmed the system’s constitutionality, most recently in a 2011 U.S. Court of Appeals decision.
The previous court cases don’t appear to specifically address the plurality question, which Flynn first raised in 2013 before a legislative committee. She did so during testimony on L.D. 860, one of several efforts to install ranked-choice voting that have failed in the Legislature.
In addition to the plurality issue, Flynn noted that the constitution requires that votes are received, counted and authorized by municipal election officials. The ranked-choice proposal, she noted, would require the secretary of state to conduct the second and subsequent rounds of counting if a winner didn’t receive a majority of votes after the first count.
Under ranked-choice voting, voters rank candidates in order of preference. If no candidate gets more than 50 percent of the votes cast after the first tally, the candidate with the fewest votes is eliminated. Voters who chose the eliminated candidate have their ballots added to the totals of their second-ranked candidate and the ballots are retabulated. This process continues until one candidate has a majority of votes and is declared the winner.
According to Flynn, the runoff process could conflict with the constitution because it enlists the secretary of state in the counting, not municipalities, as prescribed in state law.
Advocates for the change say it ensures that candidates appeal to a cross-section of voters, not just the narrow, active constituencies that often decide party primary contests, where turnouts are lower. Also, they say, the system not only ensures that the winning candidate receives the majority vote, but that there are no so-called spoiler candidates.
Voters, they argue, can pick their top choices without fear of wasting their ballots. That’s because their second or third choice could ultimately help decide the winner, even if their first choice is eliminated.
Ranked-choice voting has been repeatedly debated – and defeated – in the Legislature, largely at the behest of party leaders who have successfully thwarted election changes, including open primaries, that could empower third-party candidates.
No organized opposition to the ranked-choice ballot initiative has appeared yet, but that could change. Maine’s referendum law allows the Legislature to enact citizen-proposed laws after they’ve gathered the signatures to qualify for the ballot, a process that pre-empts sending the referendum to voters. Traditionally, state lawmakers decline to act, thus letting voters decide.
HOUSE DEFERS, OVER OBJECTIONS
On Tuesday, the House of Representatives voted to let the bill enacting the ranked-choice change, L.D. 1557, go directly to voters without a public hearing. Rep. Heather Sirocki, R-Scarborough, objected to the decision, citing Flynn’s previous testimony.
“This bill has failed in committee many times for good reason – I believe because it so blatantly violates our constitution,” Sirocki said.
She added, “Was the potential unconstitutionality of this proposal to radically change the way we vote explained to more than 60,000 Mainers that signed the petition? Will it be explained to hundreds of thousands of Mainers who are expected to vote on this bill in November?”
Sirocki failed to convince the Democrat-controlled House of Representatives. The House voted 78-67 to effectively send the issue to voters, over Republican objections.
The Republican-controlled Senate has yet to take up the bill.
Flynn said Wednesday that there’s nothing in Maine’s referendum process that can prevent an unconstitutional ballot question from appearing before voters. She was unsure if election results could be overturned if a court found the system unconstitutional.
“This is a matter for the courts to decide and only if the voters pass it,” she said.