AUGUSTA — The state’s highest court heard arguments Thursday on whether a ballot question approved last November to elect top state and federal officials under a ranked-choice voting system complies with the Maine Constitution.
Issues debated in the hourlong hearing before the Maine Supreme Judicial Court included the impact on the two-party political system, the Legislature’s responsibility to enact the will of the people and whether the change would create a constitutional crisis.
Several cities around the United States, including Portland, use ranked-choice voting, but no states employ it for statewide offices.
The law fundamentally changes the way voters select the state’s top elected officials – legislators, the governor and Maine’s four congressional delegates. Attorneys representing the Maine Senate and House of Representatives, as well as the campaign to pass the ranked-choice voting law, made arguments to the justices.
In ranked-choice voting, voters rank candidates in order of preference. If no candidate has more than 50 percent 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. The process continues until one candidate has a clear majority and is declared the winner.
In February, the state Senate asked the court to offer guidance after some opponents of the new law questioned whether it complies with the Maine Constitution. A key question is whether revising the electoral system can be done with a simple change in state law or requires a more complex constitutional amendment.
James Kilbreth, an attorney for the Committee for Ranked Choice Voting, said the issue didn’t need to come before the court at all. He argued that because voters had approved the law, the Legislature just needed to move forward with a means of enacting it as the will of the people. Kilbreth even suggested that were the court to intervene, it would be overreaching its authority by helping the Legislature do its job.
“This is the tail-wagging-the-dog kind of problem,” Kilbreth said.
“Mr. Kilbreth, it’s a fairly large tail,” Chief Justice Leigh Saufley replied, drawing light laughter from the roughly 200 people who crowded into the state’s historic ceremonial courtroom at the Capital Judicial Center in Augusta.
Saufley’s observation reflects the fact that if the law stands, elections and even political campaigns in Maine will be drastically changed and far different from what voters have experienced in the past.
Those opposing the law say the fundamental right to vote is governed by the state constitution, which also specifically spells out how votes are to be counted and by whom – in Maine’s case, by local ballot officials such as city and town clerks.
Saufley also reminded Kilbreth that the Maine Constitution, unlike those in many other states, allows the Legislature to ask the high court for advice, especially if it believes a bill before it or an action it is about to take could be unconstitutional. But Kilbreth said that did not include the case at hand because voters had already approved the ranked-choice voting law.
Other justices, including Donald Alexander, said it’s possible that the Legislature could move forward with the new voting system only to find out later, after it is challenged in the courts, that it is unconstitutional. He said lawmakers may need advice to move forward, because implementing the new law would require an expenditure of funds, currently estimated at $1.5 million. Alexander and Justice Joseph Jabar also focused on the idea that ranked-choice voting could lead to a dismantling of the two-party political system.
Alexander repeatedly asked attorneys if that was actually the intent of ranked-choice voting supporters. “We are going to have a lot of people abandoning the political parties if ranked-choice voting remains,” he said.
Jabar also expressed concern, as did some of the other justices, that the Supreme Judicial Court would ultimately have to decide on the constitutionality of the new law, either in a non-binding advisory opinion to the Legislature now or after the first disgruntled candidate to lose under the new law brought a lawsuit.
Jabar said uncertainty over that outcome could also be confusing to voters and candidates. He said candidates were more likely to be more moderate in their positions with ranked-choice voting and would likely steer away from their more conservative or liberal bases.
“I think they will campaign differently if we had ranked-choice voting as opposed to plurality voting,” Jabar said.
Advocates for the change have said depolarizing the political system and forcing candidates to win a majority of voters rather than a simply plurality will draw ideologues from both the left and the right back to the center, where most voters are already.
But Josh Dunlap, arguing against the new law on behalf of the House Republican Caucus and the Maine Heritage Policy Center, said the state constitution intentionally spells out that a plurality is how elections are decided. He called the current voting system “a first past the post,” a reference to a race in which the candidate with the most votes, regardless of whether its a majority or not, wins.
Opponents also questioned whether a shift to a central, statewide ballot-counting and tabulating procedure is also in conflict with the constitution, which calls for votes to be tabulated locally. Supporters of the new law say it doesn’t dictate either of those methods and that local municipalities could still count ballots, especially if the Legislature directed them to do so. The new law does call on the Secretary of State to create a new system for ballot counting under ranked-choice voting.
That expense has been estimated to be about $1.5 million, but it’s a figure that Justice Alexander said he doubts is accurate. It also would be wasteful for the Legislature to spend money on a new system that could be found unconstitutional, Alexander said.
The justices do not have a deadline for issuing an advisory opinion to the state Senate, but will probably do so relatively quickly because the Legislature’s constitutional adjournment date is June 21.
Scott Thistle can be contacted at 791-6330 or at: