Maine voters faced a number of far-reaching ballot initiatives last November, including Question 5, which enacted Ranked-Choice Voting (RCV) in Maine after passing with 52 percent of the vote. As we said from the start, Question 5 was unconstitutional and would need review by Maine’s high court before implementation.
Maine’s Supreme Judicial Court confirmed that position Tuesday, siding with Maine conservatives in a unanimous, 44-page decision that found the measure unconstitutional due to conflicts with the Maine Constitution. The decision comes in response to the Maine Senate’s submission of a “solemn occasion” request, seeking judgment from the court on the measure’s constitutionality.
The Maine Constitution requires elections for legislative seats and the governorship be won by plurality, not a majority. Because of this, the Maine Constitution will need to be amended for Question 5 to be enacted. Amending the state constitution requires a two-thirds majority vote in the House and Senate followed by a statewide vote, a more difficult task than passing a referendum.
The Maine Heritage Policy Center, along with Republicans in the House of Representatives, filed a joint brief with the Maine Supreme Judicial Court earlier this year contending the constitutionality of Question 5. Democratic Secretary of State Matthew Dunlap and Attorney General Janet Mills submitted similar briefs, noting that Maine’s constitution “must be amended before such fundamental changes in Maine’s electoral process can occur.”
Article IV of the Maine Constitution states, in regard to House and Senate members, that “such persons, as shall appear to be elected by a plurality of the votes,” in their legislative district shall be seated. Article V, concerning the gubernatorial election process, uses more explicit language.
“The Secretary of State for the time being shall, on the first Wednesday after the first Tuesday of January then next, lay the lists returned to the secretary’s office before the Senate and House of Representatives to be by them examined, together with the ballots cast if they so elect, and they shall determine the number of votes duly cast for the office of Governor, and in case of a choice by plurality of all of the votes returned they shall declare and publish the same.”
These articles require the winner of an election be declared after having received a plurality of the votes. The RCV system, as outlined in Question 5, produces additional rounds of voting if a candidate does not receive a majority of the votes in the opening round.
It also alters the process in which Maine tabulates and counts votes. The Maine Constitution requires votes be counted in local municipalities, but Question 5 involves the transporting of ballots to the Secretary of State’s office for instant runoff tabulations, a costly, confusing and time consuming process.
Despite the explicit need for a plurality and clear language that outlines Maine’s ballot counting procedures, proponents of RCV say that, because a majority is a plurality, Question 5 is constitutional. However, this backward line of thinking has now been refuted by Maine’s highest court.
Almost immediately after the high courts decision, Sen. Catherine Breen, D-Falmouth, said publicly that she would propose a constitutional amendment to enact Question 5, but given the composition of the House and Senate, it is unlikely RCV will ever become law in Maine.