The Maine Republican Party’s claim in a federal lawsuit that ranked-choice voting could lead to the election of a candidate who isn’t the party’s true “standard bearer” is based on speculation, says an attorney for Secretary of State Matt Dunlap in a formal response to the suit.

“The underlying factual assumptions for this theory are highly debatable and empirically unproven,” Assistant Attorney General Phyllis Gardiner writes in a response filed for Dunlap in U.S. District Court in Portland on Thursday.

“Moreover, (Maine Republican Party) cites no case law to support its contention that a method of voting – as distinct from rules governing who can vote in the primary or what requirements party candidates must meet to qualify for the ballot – could somehow harm (the party’s) First Amendment rights of association,” Gardiner wrote.

“The candidates whose names will appear on the Republican primary ballot have already met the threshold requirements to become the party’s nominees (or ‘standard bearers’) for state office.”

The party went to court after changing its rules at its May 4 convention in hopes of stopping the use of ranked-choice voting, approved by voters in 2016, in the party’s June 12 primary elections.

The Republican Party filed its suit on May 4.


Under Maine’s traditional voting system, the candidate who gets the highest vote total, or a plurality, is declared the winner, even if the winner receives less than 50 percent of the vote in a race with three or more contestants.

In the ranked-choice system, voters rank candidates in order of preference. If after the first count no one wins a clear majority – more than 50 percent – of the vote, the candidate with the fewest votes is 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 continues until one candidate has a majority and is declared the winner.

The party announced the suit shortly after delegates at its biennial convention voted unanimously to change the party’s platform rules to say they preferred using a plurality vote in their primary.

In her answer, Gardiner also details how Maine’s underlying primary election law was enacted by ballot initiative in 1911.

“Similar laws were adopted in a number of states as part of a wave of Progressive Era reforms designed to remove control of the nomination process from ‘party bosses’ and ‘smoke-filled rooms’ and place it in the hands of the party’s rank-and-file voters,” Gardiner wrote.

The response to the federal suit comes just a day after the judge in the matter, U.S. District Judge Jon D. Levy, denied a request by the Committee for Ranked-Choice Voting to intervene in the lawsuit. With the primary election less than a month away, Levy said participation by the committee “would complicate a case that badly needs to be expedited.” Levy said the committee should instead file a friend-of-the-court brief in support of the Secretary of State’s Office by Monday.

The first hearing on the suit is scheduled for 2 p.m. Wednesday.

Scott Thistle can be contacted at:

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