Maine voters will be heading to the polls next November with many weighty decisions to be made: election of all legislative positions for state representative and senate as well as five or six referenda questions and a president as well. One of the questions, a people’s referendum, may present some constitutional issues. Ranked choice voting is seen by some as the answer to making sure our state elected officials receive a majority vote in order to be duly elected; a majority being more than 50 percent, rather than a plurality, the highest number of votes cast, as the state constitution current dictates.

In a two-person race this is obviously not an issue, but when more than two seek the same office, a majority may not go to the person receiving the highest number of votes. One only need look at the last two elections for governor to see the issue that the supporters of ranked choice voting attempts to solve. Gov. Paul LePage won both elections with 39 percent and 48 percent, respectively, in the past two gubernatorial elections. Many feel that the angst toward our current governor is driving this initiative since nobody raised the issue when Govs. Angus King or John Baldacci won similar races without garnering the majority ranked choice voting requires.

The process dictated by ranked choice voting requires a person to vote for their first choice, their second choice and third all on the same ballot. If no candidate receives a majority on the first ballot, then the secretary of state will add up the votes for second and third place until a majority is reached and a winner determined. Not a simple process as most towns’ voting machines are not set up for this type of voting and will all have to be replaced or reprogrammed if the question passes. But we’ll save that discussion for another day. Let’s examine the constitutional issue this question raises.

The citizen’s petition has been submitted with sufficient signatures to place it on the ballot next November. Once certified by the secretary of state, the bill then goes before the Legislature which routinely moves it onto the next statewide ballot. Last week, the legislature held the bill seeking to have the constitutionality of the bill determined by the attorney general. The secretary of state has already ruled that, in his opinion, the bill goes against the state’s constitutional provisions for elected state officials.

This is not the first time this issue has come before the Maine Legislature. In recent years several bills seeking to enact rank choice voting have been unanimously defeated in committee on constitutional grounds. Why would this be unconstitutional you may ask? A bit of history will help answer that question. Back in 1879, there was a three-way race for governor where none of the candidates received a majority of the votes cast, which was the constitutional mandate at that time. In such cases, the Legislature was charged with determining the winner. With the Republicans in control of the Legislature, after the election, and the governor, at the time, a Democrat, the conclusion would not be so simple.

The governor determined that several legislative races were in doubt and declared the Democratic Party to be the winner of several races and therefore in control of the Legislature. A political battle brewed over the decision of who would ultimately prevail. With armed militias from all sides of the issue facing each other on the capitol steps, two legendary political figures emerged to help calm the troops. Joshua Chamberlain, retired commander of the state’s militia and Republican Sen. James Blaine resolved the 12-day conflict by requesting the Maine Supreme Court determine the results of several of the disputed legislative races, which ultimately gave control to the Republicans. Eventually, the Legislature appointed the Republican candidate for governor as the winner.

This may all seem supportive of having ranked choice voting as a viable choice to resolve such disputes. Fortunately, or unfortunately, depending on your perspective, the Legislature, at the time sought a different solution by changing the state’s constitution to say the winner of any state election for governor, senator or representative would be decided by a plurality of the votes cast, the most votes received, rather than by majority, thus the constitutional issue that the current ranked choice voting ballot question faces.

The question before the Legislature today is, should the voters be told, up front, that there is a constitutional issue before they vote on this question or wait to see if the vote passes to decide if the Constitution needs to be fixed. The supporters of ranked choice voting agree that if the question passes then a constitutional change will need to be made, which couldn’t happen until the next gubernatorial election in 2018, and it may not pass. Many believe the cart is currently before the horse and that if a change in the Constitution is needed it should take place before the vote on ranked choice voting.

It is this discussion that some in the Legislature want to have before simply placing the question on the ballot without a full public vetting of the constitutional issues. The question will appear on the ballot no matter what decision the Legislature makes, but the point to be made is should the voters be better informed as to the issues this question raises?

All very fascinating, only time will tell. Stay tuned.

— Rep. Bob Foley, (R-Wells) represents House District 7, which includes most of the Town of Wells.

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