AUGUSTA — Republican Senate President Michael Thibodeau said Thursday that he’s requesting a legal opinion from the state Attorney General’s Office about whether a citizen-initiated referendum proposal to establish a ranked-choice voting system in Maine violates the state constitution.
“It’s the prudent thing to do,” Thibodeau said. “All I know is that we can’t pass legislation in this building without first finding out if it violates the Maine Constitution. This is simply to determine if the Legislature has any role in preventing a citizen referendum that potentially violates the constitution from appearing before voters.”
Thibodeau’s move follows a Portland Press Herald report in which a top state election official reiterated her concerns that ranked-choice voting is at odds with a provision in the Maine Constitution that says winners of gubernatorial and State House races are determined by a plurality of votes cast. Ranked-choice voting would swap the traditional plurality system with one that determines a winner after he or she secures a majority of votes cast.
Deputy Secretary of State Julie Flynn, the longtime head of the elections office, said Wednesday that 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 Attorney General’s Office and has been advised that the agency “is in agreement with our concerns about constitutionality.”
Thibodeau said his request for a legal opinion seeks to verify those findings and determine whether lawmakers have a responsibility – or authority – to intervene or seek an opinion from the Maine Supreme Judicial Court.
Both steps would be unusual for a Maine referendum campaign. Flynn said Wednesday that there’s nothing in Maine’s referendum process to prevent an unconstitutional ballot question from going to voters.
A spokesman for the Attorney General’s Office did not immediately respond to a request for comment.
The Committee for Ranked Choice Voting, a state organization that gathered the signatures to put the question to voters, insists that the system it seeks to implement in Maine conforms to the state constitution. Kyle Bailey said the campaign consulted with legal experts. He said that while 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.
Bailey acknowledged that the constitutionality of the system is an “unresolved issue” for some and that a 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 League of Women Voters has provided technical and legal advice on the drafting of the ballot initiative.
The ranked-choice voting campaign successfully certified over 70,000 signatures to put the issue before voters in November. 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.
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.
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.
Staff Writer Steve Mistler can be contacted at 620-7016 or at:
Twitter: @stevemistler
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