AUGUSTA – The Maine Supreme Judicial Court has scheduled a hearing on the ranked-choice voting system for Thursday afternoon and ordered the parties involved in the dispute to file briefs in the case by noon.

Maine Chief Justice Leigh Saufley ordered attorneys in the ranked-choice voting case to submit written arguments by noon Thursday and be prepared to appear before the court in Portland by 2 p.m. 2014 Press Herald File Photo/Gregory Rec

In a procedural order issued Wednesday night, the state’s highest court ordered attorneys representing Secretary of State Matthew Dunlap, the Committee for Ranked Choice Voting and the Maine Senate to file briefs of not more than 10 pages regarding seven key questions in a lawsuit over the voting system. Kennebec County Superior Court Justice Michaela Murphy had certified the questions earlier Wednesday and sent them to the Supreme Judicial Court.

At Murphy’s urging, the lawyers for Dunlap, the Committee for Ranked Choice Voting and the Maine Senate spent at least three and half hours in closed-door negotiations coming to terms over the questions for the high court, which include two key so-called “threshold questions” that may result in the court rejecting the case and sending it back to Murphy to decide.

Time is of the essence. Dunlap’s lead attorney, Assistant Attorney General Phyllis Gardiner, told Murphy last week that ballots for the June 12 primary election need to be sent to the printer for design and printing by Friday.

Supreme Judicial Court Chief Justice Leigh Saufley acknowledged the same in her order Wednesday night.

“The court understands that time is of the essence,” Saufley wrote ordering the attorneys to submit their written arguments by noon and to be prepared to appear before the court in Portland by 2 p.m.

Earlier in the day, Murphy thanked the lawyers from all sides, saying she knows they have been working long hours and over the last weekend to prepare the case for consideration by the high court.

“I know you all share the court’s view that we owe the people of Maine as much certainty as we can provide as they go to the polls on June 12,” Murphy said. “And that the confidence in the people of Maine in the election process has to be assured to the greatest extent possible by answering these questions just as soon as possible.”

Wednesday morning Murphy met with the lawyers behind closed doors, then asked them to stay at the Capital Judicial Center and assigned them to a vacant courtroom to continue negotiations.

One question in dispute is whether Dunlap has the legal authority to spend state funds on a ranked-choice election. Murphy had ruled this month that the ranked-choice primary should go forward and ordered Dunlap to continue preparing for one. But there are constitutional questions, raised by the Maine Supreme Judicial Court last year, about whether the system can be used for a general election.

The Maine Constitution calls for candidates for governor and the Legislature to be elected by a plurality of votes. So a statewide general election for those offices could be found unconstitutional if a ranked-choice system is used, the high court said in a previous advisory opinion to the state Senate.

Under Maine’s traditional voting system, candidates who get the highest vote totals are declared winners, even if they receive less than 50 percent in a race with three or more contestants.

Under the ranked-choice system, voters would rank candidates in order of preference. If no one had more than 50 percent of the vote after the first count, the candidate with the fewest votes would be eliminated. Voters who chose the eliminated candidate would have their ballots added to the totals of their second-ranked candidates, and the ballots would be retabulated. The process would continue until one candidate had a clear majority and was declared the winner.

Last week the Senate voted 21-13 on an order that authorized Senate President Mike Thibodeau, R-Winterport, to pursue legal action against Dunlap in hopes of resolving constitutional questions with ranked-choice voting. The Senate order came the same day Murphy ruled on another complaint requiring Dunlap to move forward with a ranked-choice election for June.

Among other points, Tim Woodcock, the attorney for the Senate, is arguing that Dunlap would be usurping the Legislature’s power to spend tax dollars on a ranked-choice election. The state law authorizing Dunlap to conduct elections does not specify that they be conducted using a ranked-choice method.

Woodcock also is arguing that there is no law in place authorizing Dunlap to direct the Maine State Police or any other entity to collect ballots from local polling places and return them to Augusta for a retabulation of the votes to determine a ranked-choice winner in a statewide primary. In a general election, the law requires state police to transport ballots to Augusta in the case of a recount, but not for the retabulation of results under a ranked-choice system, Woodcock said.

“The Senate would take the position that in order to exercise that kind of authority over the Maine State Police – or even over a private courier service, as has been suggested – there needs to be statutory authority for that,” he said.

But attorneys for the Ranked Choice Voting Committee argue that the will of the voters has the same effect as legislative action when voters approve or disapprove of citizen’s initiatives as allowed for under Maine’s Constitution. Maine voters passed ranked-choice voting in a November 2016 referendum.

James Monteleone, an attorney for the Ranked Choice Voting Committee, said Tuesday that the high court also will have to determine two other key questions. These include whether the Senate alone has standing to represent the entire Legislature as a branch of government in relation to the arguments around separation of powers.

Other fundamental questions will be whether the case is even ripe for consideration by the high court and whether lawyers for the Senate can make a case that damage has been done to the Senate by the ranked-choice law now on the books.

“We believe that the Senate, as a single chamber in a bicameral legislative body doesn’t have standing to bring claims related to the balance of power,” Monteleone said. “Case law would indicate that’s a position that’s been held elsewhere.”

Scott Thistle can be contacted at 713-6720 or at:

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