AUGUSTA — Questions swirled Thursday about whether Mainers will use the ranked-choice voting system in the June primaries after Secretary of State Matt Dunlap raised concerns about a conflict in the law.

Dunlap said his office learned Wednesday about “legal concerns regarding the implementation of ranked-choice voting” caused by conflicting sections of the law dealing with whether primary candidates are elected by a majority or a plurality of votes. As a result, Dunlap said he was reviewing the law even as he moved forward with implementing ranked-choice voting for the June 12 primaries that will decide the Democratic and Republican contenders for governor, Congress and the Legislature.

But Dunlap’s surprise announcement sparked a frenzy of activity in Augusta to salvage the system less than three months before Maine was slated to stage the nation’s first statewide election using ranked-choice voting. The debate also took on political overtones when two of the seven Democrats running for governor questioned whether the doubts raised about the legality of ranked-choice voting could benefit another Democratic candidate, Attorney General Janet Mills.

“It is our intention to continue on with the implementation schedule laid out because we do not have time to do anything else, but I do bring this to the Legislature as a real conflict that could be challenged (in court),” Dunlap told members of the Legislature’s Veterans and Legal Affairs Committee. “I do not presuppose the outcome of that challenge. And I do not agree that we should just leave it to a challenge and see where the chips fall. I think it needs to be addressed.”

However, a legislative fix appears unlikely in the face of strong Republican opposition to the voting system. So the issue appeared headed to court as supporters sought a judicial order forcing Dunlap to implement the system.

The issue hinged on language in two sections of law dealing with whether candidates can win with simply the most votes – a “plurality” – in races with more than two candidates or must receive a majority to emerge victorious.

Under the ranked-choice system, voters select candidates in order of preference. If no candidate receives more than 50 percent of the vote, the candidate with the fewest first-choice votes is eliminated. Voters who preferred the eliminated candidate would then have their ballots added to the totals of their second-ranked candidates, and the ballots would be retabulated. The process continues until one candidate has a clear majority of votes.

DOUBT OVER POLITICAL PROCESS

Maine voters approved switching to a ranked-choice system in November 2016 only to see lawmakers – citing constitutional and philosophical objections – pass a bill last year to delay and potentially repeal it. In response, ranked-choice supporters collected more than 62,000 signatures to send the issue back to voters this June in the form of a “people’s veto.” At the same time, voters will get a chance to use the system for the first time for gubernatorial, congressional and legislative primaries.

Or at least that’s what they thought was going to happen on June 12. The legal debate now could focus on which section of law is applicable.

Thursday’s events also cast doubts over the process and underscored the political divisions over ranked-choice voting between Democrats and Republicans, as well as the distrust that some supporters harbor toward the Legislature and political leaders.

“In the 15 months since voters enacted Ranked Choice Voting as Maine law, Secretary of State Matt Dunlap has consistently avoided its implementation,” Dick Woodbury, chairman of the Committee for Ranked Choice Voting, said in announcing plans to seek a court injunction to force Dunlap to implement the law. “All Maine people should be stunned by this latest affront to democracy and to the rule of law. I used to believe that Maine politics had integrity. But this latest attempt to block implementation of Ranked Choice Voting is outrageous and cannot stand.”

LEGISLATIVE FIX UNLIKELY

House Speaker Sara Gideon, D-Freeport, said she found the developments “deeply disturbing” and hoped the courts will act quickly on the issue. Gideon also said she was willing to work with other lawmakers on a legislative fix to the issues raised by Dunlap – an unlikely outcome, given strong opposition to ranked-choice voting among Republican lawmakers.

Some Republicans, meanwhile, cheered Dunlap’s comments raising questions about the legality of using ranked-choice voting this June.

“The secretary’s decision coupled with Republican efforts in the Legislature will now prevent the spectacle of an election in Maine where voters choose certain candidates by ranked choice, while at the same time and in the same election, vote whether or not they want it,” Senate Majority Leader Garrett Mason, a Lisbon Falls Republican and one of four contenders in the GOP gubernatorial primary, said in a statement. “It was entirely conceivable that the voters could vote in June using ranked choice, and also vote to eliminate it, creating a crisis in confidence over the results of that election.”

Thursday’s developments also prompted some political finger-pointing among the seven Democrats running for governor, candidates whose fates could be decided by whether ranked-choice voting is used on June 12.

ARGUMENTS SNARE ATTORNEY GENERAL

Dunlap said he was alerted to the potential conflict in the statute by assistant attorney general Phyllis Gardiner, who works on election-related issues with the Secretary of State’s Office as well as the Maine Ethics Commission.

But candidate and former House Speaker Mark Eves accused Attorney General Mills – one of the other Democratic contenders – of playing a role in Dunlap’s decision.

“For the Attorney General’s Office to veto the will of the people in a way that benefits the electoral prospects of the Attorney General is so brazenly political and such a conflict of interest that you’d roll your eyes if you saw it on ‘House of Cards,'” Eves said in a statement. “But it just happened here in Maine, and Mainers shouldn’t stand for it.”

Additionally, candidate and former Rep. Diane Russell of Portland – one of the organizers behind the ranked-choice voting campaign – said the uncertainty was “all about the gubernatorial race.”

“We went through all of the right processes and now they are trying to find ‘legislative fixes’ and are using legislative shenanigans to stop the will of the voters,” Russell said.

As the chaos over ranked-choice voting spread Thursday, Mills’ office released a copy of a memo dated July 7, 2017, laying out the process creating an “ethical wall” between Mills and Gardiner in the event that Mills ran for governor. The memo stated that Gardiner would report directly to a deputy attorney general and that Mills would avoid “all informal communication or exchange of information” concerning the 2018 gubernatorial elections with Gardiner or her supervisors.

WILL IT BE IMPLEMENTED?

Mills said she planned to seek a legislative fix for the situation.

“The issue raised by the secretary of state this morning, which I was made aware of for the first time today, needs to be addressed immediately so that the will of the people may be respected,” Mills said in a statement. “The more than 62,000 citizens who signed the Peoples’ Veto petitions deserve to have their voices heard. The will of the people must not be thwarted by some technicality in the law. I will file legislation today to be presented to the Legislative Council to ensure that ranked-choice voting is in full effect for this June’s primary as the people have dictated.”

There was considerable confusion Thursday about whether Dunlap’s office still planned to use ranked-choice voting in June.

Earlier in the day, Dunlap told a Maine Public radio reporter that it was his understanding that they could not use ranked-choice voting in June, but that he was seeking additional clarity. But when he was speaking with the Veterans and Legal Affairs Committee in the afternoon, Dunlap made it clear that they would continue to work on implementing the law despite the concerns.

“I think we have to proceed,” Dunlap said.

Kevin Miller can be contacted at 791-6312 or at:

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