This column has been updated to reflect that the author has retracted his conclusion that a people’s veto campaign now under way would force the vote-counting process to be used in races for governor and Legislature, in possible conflict with the state Constitution. After reviewing the people’s veto petition, Amory says he concludes that the question would affect only races that are not mentioned in the Constitution. His full statement:

“My op-ed relied on the veto question that was approved by the Secretary of State and is now being circulated among Maine voters, which said the veto would apply to “the parts of a new law that would delay the use of ranked-choice voting in the election of candidates for any state or federal office….” I have now reviewed the Peoples Veto petition, which (unlike the ballot question) limits the veto to the portions of the recent law that would apply to primary and federal elections. The petition should control over the ballot question, so if the People’s veto is adopted ranked choice voting should only apply in primaries and federal elections, not state legislative or gubernatorial elections. 
I apologize for any confusion my op-ed caused, and continue to support a constitutional amendment to authorize ranked choice voting for all state and federal elections.”

 

Sorry to get down in the legal weeds, but Maine voters need to understand the likely effect of the people’s veto petitions being circulated with regard to ranked-choice voting.

As paraphrased by staff writer Peter McGuire in the Maine Sunday Telegram (Nov. 12, Page B3), Kyle Bailey, campaign manager for the Committee for Ranked Choice Voting, said that if the people’s veto is adopted, “the ranked-choice method will only apply to primaries and congressional elections, not legislative or gubernatorial elections, the parts of the law the (Law) Court ruled against.”

I don’t think that’s correct.

A little background: Under ranked-choice voting, voters rank candidates in order of their preference. If no candidate gets a majority, votes for losing candidates are reallocated according to voters’ ranked preferences until a candidate gets a majority. Ranked-choice voting was adopted by a 2016 referendum, but the Law Court unanimously advised the Legislature that it would violate the Maine Constitution if applied to legislative or gubernatorial races. On Oct. 23, the Legislature passed a law that would delay the use of ranked-choice voting until 2022, and then retain it only if the state constitution is amended by Dec. 1, 2021, to specifically allow ranked-choice voting in state elections.

The proposed people’s veto is clear on its face: It would “reject the parts of that law that would delay the use of ranked-choice voting in the election of candidates for any state or federal office until 2022, and then retain the method only if the constitution is amended by Dec. 21, 2021 … .” The people’s veto would, therefore, keep ranked-choice voting in effect for all Maine elections, not just primaries and congressional elections.

Mr. Bailey says the Law Court’s opinion would prevent ranked-choice voting in legislative and gubernatorial elections, even if the people’s veto is passed. He is wrong: The opinion was purely advisory and had no legal effect. If the people’s veto gets the necessary signatures to go on the ballot, the original ranked-choice statute adopted through the referendum will go back into effect for all Maine elections until the people’s veto is voted either up or down at a statewide election. If the people’s veto is adopted by a majority statewide vote, then ranked-choice voting would remain in effect as originally drafted, for all elections, unless and until the Law Court determines it is unconstitutional in a legal action brought by someone who has standing.

Standing generally requires that a person bringing a lawsuit be injured, and it is at least possible that no one would be injured by ranked-choice voting until some candidate who lost under ranked-choice voting can show that he or she would have won under the old plurality-wins-all voting regime. Who knows how many election cycles it will take for that to occur?

It is possible, if not likely, that whoever wins a first-round plurality in a ranked-choice election will ultimately get an absolute majority after losers’ votes are re-allocated. The winner in the ranked-choice election would then also have won under the former system. If that’s the case, the Law Court could find that the losers lacked standing to challenge the results.

I realize that I don’t wear the black robe of a Law Court justice and am frequently wrong. I know, however, that if it obtains the necessary signatures, the people’s veto may well lead to ranked-choice voting for all 2018 Maine elections – legislative, gubernatorial and federal, including primaries and general elections. It is also likely that if the people’s veto is ultimately adopted by a majority statewide vote, ranked-choice voting will remain in effect for all Maine elections until the Law Court finally makes a legally binding ruling on its constitutionality.

In the meantime, the state could be put through a long period of uncertainty over the outcome of its elections while the legal process unfolds. Do we really want to cast doubt over the legitimacy of our elections, raising serious questions over who won, whether elections should be rerun and whether elected officials have the power to act on our behalf to address our grave challenges? Remember Bush vs. Gore, anyone?

I would support a constitutional amendment to adopt ranked-choice voting in all Maine elections. The people’s veto takes us down dangerous rabbit holes without advancing that ultimate goal.