Maine Supreme Court Invalidates Ranked Choice Voting

[Screenshot image via pressherald]

The Maine Supreme Court has ruled that a voter-approved initiative establishing ranked choice voting (RCV) violates the state Constitution. Now, the state is faced with what is likely to be a fierce fight over whether to remake or repeal the law. The Portland Press-Herald has more:

Maine’s highest court concluded Tuesday that the nation’s first statewide ranked-choice voting system violates the Maine Constitution even though it was approved by the state’s voters in a referendum in November.

In a unanimous advisory opinion, the seven justices on the Maine Supreme Judicial Court acknowledged the validity of citizen-initiative ballot questions but noted that even citizen-enacted laws can be unconstitutional.

“The object must always be to “ascertain the will of the people,” the court wrote. “Nonetheless, when a statute – including one enacted by citizen initiative – conflicts with a constitutional provision, the constitution prevails.”

[The Court’s full opinion is here.]

The State legislature must now decide whether to address whether its next step should be to amend the Constitution to allow RCV to proceed or repeal the citizen-approved bill. Early indications suggest that the amendment path faces numerous hurdles – not the least of which is the opposition of the majority members of the legislative leadership:

The court opinion itself doesn’t negate ranked-choice voting, which was supported by 52 percent of Mainers who cast ballots last fall. The justices instead spelled out the Legislature’s options, noting that lawmakers can now vote to repeal the measure or to initiate the process that leads to a constitutional amendment to allow for ranked-choice voting.

One Democratic lawmaker, Sen. Cathy Breen of Falmouth, said she would submit a bill to amend the Constitution.

“I’m grateful to the court for so clearly laying out the path we must take if we want ranked-choice voting to become law, as voters intended,” Breen said. “Voters in Maine approved ranked-choice voting because they’re tired of politics as usual. They want a better way forward, one that’s less partisan and more inclusive.”

However, the deadline for introducing legislation has passed, so Breen will need approval from the Legislative Council, which is composed of legislative leaders from both parties. Republicans are generally opposed to the ranked-choice system, and they are likely to withhold approval for Breen to submit a bill.

The council will meet Wednesday to decide what action should be taken by the Legislature, which is set to adjourn in mid-June.

A bill like Breen’s that proposes a constitutional amendment would approval by a two-thirds vote in the Legislature. It would then go to voters, who could approve it by a simple majority.

“We will weigh it, we will look at it, but obviously you’ve heard the same things I’ve heard – that there isn’t a lot of support for that concept,” Senate President Mike Thibodeau, R-Winterport, said Tuesday of the constitutional amendment proposal.

The looming fight may instead be over repeal of the bill:

A more likely outcome is that lawmakers will vote to repeal the ranked-choice measure and send the repeal to Gov. Paul LePage for his signature. LePage does not support ranked-choice voting.

“The governor has said all along that ranked-choice voting is unconstitutional,” said LePage spokesman Peter Steele. “The constitution of the state of Maine is not ambiguous; it clearly states candidates win with a plurality.”

The ranked-choice system fundamentally changes the way voters would select legislators, the governor and Maine’s four congressional delegates. Voters would rank candidates in order of preference. If no candidate had more than 50 percent of votes, 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 candidate, and the ballots would be retabulated. The process would continue until one candidate had a clear majority and was declared the winner.

But Maine’s Constitution calls for candidates to be selected by plurality, in which the candidate with the most votes wins, even if the vote total is less than a majority.

It also appears that any repeal effort will eliminate RCV entirely – even though state general elections were the only ones directly at issue in the Court’s opinion:

Sen. Dick Woodbury, an independent from Yarmouth, said the court’s opinion did not apply to primary elections or to federal congressional elections, and without any action from the Legislature the law would stand in those elections. He said the Secretary of State’s Office should immediately implement ranked-choice voting for federal elections.

But Thibodeau, the Senate president, said he and other lawmakers do not want Maine to have two election systems.

“We can’t have folks going to the polls and voting in one regard for state offices and in another regard for federal offices,” Thibodeau said. “That would be too confusing to many of the voters and that would not be fair to do to them. So we want to make sure we have consistent voting laws across the spectrum.”

Substantive disputes over the validity and desirability of RCV aside, Maine must now settle the dispute quickly so voters and candidates – and, more importantly, state and local election officials – can prepare for the 2018 elections. Although it appears that the question of what’s next is likely to generate some fierce debate, here’s hoping that the legislature and everyone else with a stake in the RCV issue can identify a path forward in time for an uneventful 2018 election.

Hoping for a smooth resolution is not the same as expecting it, however – this one could get messy. Stay tuned.

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