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Journal Tribune
Updated November 9, 2019
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Poliquin sues in federal court to stop ranked-choice vote count

Melissa Packard, director of elections, cuts the wire on a seal before opening a ballot box as the ranked-choice voting tally for the 2nd Congressional District race between Rep. Bruce Poliquin, Jared Golden, Tiffany Bond and Willian Hoar continues in the Elkins Building in Augusta on Tuesday. JOE PHELAN/Portland Press Herald

AUGUSTA – Republican 2nd District Congressman Bruce Poliquin filed a federal lawsuit Tuesday seeking to stop the tabulation of ranked-choice ballots in his race against Democratic challenger Jared Golden.

Poliquin and three other plaintiffs are asking a federal judge in Bangor to block Maine Secretary of State Matt Dunlap from proceeding with the nation’s first ranked-choice voting run-off in a congressional race. Neither Poliquin nor Golden secured a majority of the vote the first count of votes in the Nov. 6 election, thereby pushing the tabulation to voters’ second-choice candidates – or perhaps third-choice – until one of the front-runners crests the 50 percent threshold.

U.S. District Court Judge Lance Walker scheduled a hearing for 9 a.m. Wednesday in Bangor on a request from Poliquin’s attorneys for a temporary restraining order that would force Dunlap to stop the process until the case is settled. Walker had scheduled an initial hearing on the case for Dec. 9, but the retabulation of votes could happen as soon as Wednesday unless the court intervenes.

Dunlap said ballot processing will continue until he hears otherwise from the court.

“If a judge tells us to stop, we’ll stop . . . I think we have to obey the law, and the law says that we proceed,” Dunlap said Tuesday afternoon.

Voters have approved ranked-choice voting twice at the ballot box, making Maine the first state to use the process in statewide elections.

Poliquin’s suit claims the use of ranked-choice voting violates the U.S. Constitution because the document “sets a plurality vote as the qualification for election” to Congress. However, the U.S. Constitution does not mention plurality or ranked-choice voting, and several constitutional scholars said Tuesday the lawsuit is not likely to prevent the state from moving forward with the run-off.

At a State House news conference Tuesday afternoon, Poliquin said he and other critics of ranked-choice voting believe the process could be “illegal” under federal law. He said it’s not true that he is challenging the process because he is likely to lose his seat if more than 23,000 votes received by two independent candidates get redistributed to second-choice candidates. “The people of the 2nd District have put their trust in me to do what’s right,” Poliquin said. “Not addressing this important constitutional issue would be completely irresponsible. I’ll tell you this would be a heck of a lot easier on me if I just walked away from this vote counting mess. But what kind of message would that send to our kids? Absolutely the wrong message.”

Poliquin repeatedly declared himself the winner on election night, “fair and square” – an argument central to the lawsuit.

“Instead of respecting this important constitutional principle, the RCV Act directly contravenes it by denying individuals who obtained the highest number of votes after the first round of balloting – in this case, Bruce Poliquin – from being declared the winner of the general election,” the complaint says. Poliquin is joined on the lawsuit by three registered voters from the 2nd District, including Veazie attorney and Penobscot County Republican Committee chairman Brett Baber.

State elections workers continued to process ballots throughout the day on Tuesday, despite a request from the plaintiffs to suspend the process while the court case plays out.

As of Tuesday evening, staff in Dunlap’s office still had to scan ballots from roughly 75 small towns in Somerset, Waldo and Washington counties before running all voting results through the computer algorithm used to calculate ranked-choice results. That tabulation could come as early as Wednesday afternoon.

Dunlap said the vote retabulation process will continue as the court goes through the litigation process. “We are implementing the law as has been enacted by the people of the state of Maine,” he said.

In their reply to the lawsuit, Golden’s attorneys said the litigation filed after the Nov. 6 election “seeks to invalidate the will of the voters” by blocking Dunlap from following state law.

“Poliquin could have joined his (Republican) Party’s challenge to this law before this court last spring, or he could have moved expeditiously to file his own challenge on the same grounds he now raises when his party’s challenge was not successful,” Golden’s attorneys wrote in their legal filing with the court. “Instead, he waited until after all of the ballots in the election had been cast, and now seeks to change the rules of that election, severely prejudicing the voters who relied upon RCV in casting their ballots, and the candidates who they supported, whether as their first or second choices.”

Republicans have long panned the ranked-choice law approved by voters as unconstitutional and successfully blocked the process from being used in general elections for governor and the Legislature. But while the Maine Constitution states those races are decided by a “plurality” of votes, the document is silent on how federal elections should be conducted.

Poliquin is leading Democratic challenger Jared Golden by roughly 2,000 votes, according to unofficial election results.

The two-term Republican congressman and Golden – a Marine Corps veteran and state lawmaker – each have roughly 46 percent of the vote. But because neither received more than 50 percent, votes cast for independents Tiffany Bond and William Hoar – who received 8 percent combined – will be reallocated based on who those voters ranked second on their ballots.

The close finish in the election night count, and the fact that the two last-place finishers were more likely to split supporters with Golden, have created the possibility that the Democratic challenger could prevail in a ranked-choice vote.

Ranked-choice voting is different than other run-off elections. Under ranked-choice, voters only cast ballots once and those ballots are then used to reallocate votes based on voter preferences if no candidate receives majority support after the first count.

But before those tabulations can be run, every ballot – or digital images of them – must be transported to the Secretary of State’s office in Augusta. Staffers must then download the massive digital files from encrypted memory devices or scan the paper ballots from the hundreds of towns that still hand-count ballots.

Poliquin’s campaign has raised concerns about ballot boxes sent to Augusta without padlocks while the Maine Republican Party asked Dunlap to reassign a staffer involved in the ranked-choice processing who had “liked” tweets supporting Golden. Dunlap responded that all ballot boxes – even those without padlocks – have arrived with a metallic seal that would alert staff to any tampering after the ballots left the polling location.

He also accused Republicans of attempting to undermine voter confidencein the election system.

“I think it’s intended to be a distraction, it’s intended to cast doubt on this process,” Dunlap said on Monday. “And I think it’s irresponsible and a disservice to the people of Maine.”

Besides Poliquin and Baber, the lawsuit was filed on behalf of two other 2nd District residents, Terry Hamm-Morris and Mary Hartt. None of the four plaintiffs ranked their votes during the November 6 election, according to their complaint.

The judge in the case,Walker, was first appointed a Maine District Court judge by Gov. Paul LePage in 2014 and has been on a fast track since. He was elevated to Maine Superior Court a year later and in April was nominated by President Trump to serve on the federal bench. He was confirmed by the U.S. Senate in October.

Ranked-choice advocates called the lawsuit baseless.

“This is a frivolous effort to cast doubt on the lawful and constitutional use of ranked choice voting in Maine,” said James Monteleone, an attorney for the Committee for Ranked Choice Voting who also represents Bond, one of the two independent candidates in the race. “Just looking at the basis of the claims here they are fairly silly. And if anyone thought these were viable legal questions that required urgent attention they had many months to present these questions to the court.”

Monteleone also said voters who selected Bond or Hoar as their first choices believing the independents would not become “spoilers” because of the ranked-choice law would be disenfranchised if Poliquin’s case were to prevail. “They purposefully selected their choice knowing that ranked-choice voting applied and that they would have an opportunity in subsequent rounds if their preferred candidate was successful,” Monteleone said. “What Poliquin is essentially asking for is to have those voters to just be set aside.”

The Maine Center for Clean Elections and the League of Women Voters of Maine backed the ranked-choice voting law in 2016 and 2017 and called for the process to move forward.

“Ranked choice voting has been reviewed by Maine courts four times in the last two years; we have no doubt that the federal court will uphold the law. Ranked choice voting is here to stay as the voters have twice demanded, and we will fight to protect it,” Jill Ward, the president of the League of Women Voters, said in a prepared statement.

Ward cited four different times Maine courts have issued rulings on the law including:

– In May 2017, the Maine Supreme Judicial Court issued a unanimous advisory opinion, concluding that parts of the new law that apply to general elections for the state Legislature and governor are unconstitutional under the Maine Constitution but noted the state’s constitution did not govern primary or federal elections.

– In April 2018, a Kennebec County Superior Court justice granted the Committee for Ranked-choice Voting a temporary restraining order, requiring the office of the Secretary of State to continue implementing ranked choice voting for the June 2018 primary election.

– In April 2018, in response to a request by the Maine State Senate seeking a declaratory judgment and injunctive relief, the Maine Law Court confirmed that ranked choice voting would take effect for the June 2018 primary election.

– In May 2018, a federal judge denied the Maine Republican Party’s request to throw out the ranked choice voting system for the Republican June 12 primaries.

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