Citizens' Initiative

The new Ranked-Choice Voting bill is still unconstitutional

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The Committee on Veterans and Legal Affairs will convene on Monday, Oct. 16 to hold a public hearing on LD 1646, a bill that attempts to bring Maine’s voter-approved ranked-choice voting law into compliance with the state constitution. Maine’s ranked-choice voting measure, Question 5 on the November 2016 ballot, was approved by 52 percent of Maine voters.

The Maine Heritage Policy Center joined House and Senate Republicans earlier this year in submitting an amicus brief to the Maine Supreme Judicial Court, calling on the high court for an advisory ruling concerning the constitutionality of ranked-choice voting in Maine.

Because ranked-choice voting requires multiple rounds of scoring and a winner is not determined once a candidate receives a plurality of the votes, the Maine Supreme Judicial Court determined unanimously that ranked-choice voting is unconstitutional. The court did not submit rulings on the constitutionality of the system being applied to Maine’s primary elections, the administering of ranked-choice ballots or guidance on tiebreaking and recounts.

The language of LD 1646 requires that Maine apply ranked-choice voting for all primary elections, and general elections for US Senate and US Representative races.

The problem with the bill, titled “An Act to Bring Maine’s Ranked-choice Voting Law into Constitutional Compliance,” is that there’s no certainty its contents actually bring Maine’s ranked-choice voting law into compliance with the state constitution.

As noted above, the Maine Supreme Judicial Court did not issue judgment on other unknowns concerning the implementation and logistics of the law, ruling only that the measure was unconstitutional because it did not meet plurality requirements outlined in the Maine Constitution.

The measure approved by Maine voters requires ballots be tabulated at a central location over multiple rounds, which both potentially violates the constitution and adds additional costs for ballot transportation and security.

Unfortunately, the language of LD 1646 offers no certainty that the administering of ballots under a ranked-choice voting system would be constitutional. Instead, the law requires the Secretary of State “adopt rules for proper and efficient administration of elections determined by ranked-choice voting.” That doesn’t sound promising.

Additionally, Article IV, Section 5 of the Maine Constitution requires that votes cast for State Senate, Representative and Governor be “received, sorted, counted and declared in the same manner.”

This means that, for a general election, Maine voters would be required to fill out two ballots – the traditional ballot and a ranked-choice ballot – because ranked-choice ballots do not receive, sort, count and declare votes in the same manner as the traditional ballot.

This adds more layers of cost to the equation, as Maine would need to allocate funds for the printing of extra ballots and new voting machines or software that can accurately tabulate ranked-choice ballots. Voting machines in Maine today cannot tabulate ranked-choice ballots.

Further, proponents pushing LD 1646 are simply parsing words in the state constitution in an attempt to apply their unconstitutional law. The excerpt from the Maine Constitution cited above is followed by language that requires the Governor have victors “attend and take their seats” at least “7 days before the first Wednesday of December biennially.”

Because of this language, ranked-choice voting advocates believe these election rules apply only to the general election and not primary elections, which has not been confirmed by Maine’s highest court.

While advocates will insist that we must “respect the will of the voters,” the reality is that the Maine people did not ask for ranked-choice voting. The six ballot question committees that formed in support of Question 5 last November took in well over $1 million from out-of-state special interest groups, underscoring Maine’s troubles with ballot initiatives in recent years.

To put it plainly, the implementation of ranked-choice voting in Maine was initiated by out-of-state actors because our citizens’ initiative system is susceptible to abuse by big money interests, not because the Maine people asked for it.

Enacting LD 1646 would require Maine allocate at least $1.5 million in additional funds for the necessary technology, printing of ballots, transportation and security, and it would confuse voters and stress election volunteers – all for the purpose of applying an unconstitutional law, bought and paid for by outsiders, to Maine’s primary election system.

I promise it’s not worth the headache.

About Jacob Posik

Jacob Posik, of Turner, is a policy analyst for the Maine Heritage Policy Center. He can be reached at jposik@mainepolicy.org.

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