Dems Look to Use Ranked Choice Voting in State Elections, But Constitutional Questions Remain

Democrat lawmakers are looking to expand the use of ranked choice voting (RCV) to all Maine elections, including for the Governor, State Senate, and the State House of Representatives. If a new bill introduced this week is successful, it could change how these state officials are elected.

Ranked choice voting has until now been used to ensure that the winner of a given election secures majority support, but Sen. Cameron Reny’s (D-Lincoln) new bill LD 1666 takes a different approach, using a different definition for a calculated end.

Maine has used ranked choice voting for federal offices since 2018, but the Maine Supreme Court explained in a 2017 advisory opinion that requiring candidates for state offices to earn majority support would violate the Maine Constitution, which states the candidate winning the most votes, or a plurality, prevails and does not stipulate that a majority — or more than 50 percent — is needed to win.

In light of this, LD 1666 appears to adapt the language of ranked choice voting so that it would be permissible within these constraints.

As it is currently written, this bill would amend the definition of “ranked choice voting” in Maine State Law so that the “continuing candidate with the highest continuing ranking on the most ballots in the final round of tabulation is determined to have received a plurality of the votes cast.”

The bill then goes on to include the term “plurality” in other aspects of state law pertaining to the implementation of ranked choice voting.

Sec. 12. 21-A MRSA §723-A, sub-§2 of Maine State Law governs the procedures for determining the winner of an election using ranked choice voting.

LD 1666 updates the language in this section to explicitly state that a candidate would only need a “plurality” of votes to be declared the winner of an election, but it does not seem to change the mechanics of the tabulation procedure itself.

Instead, the amendments proposed in this bill seem to consist largely of linguistic changes intended to bring the program into technical compliance with the State Constitution.

Under the proposed legislation, each round of voting would still result in two possible outcomes depending upon how many candidates are left in the running after the last-place candidate is removed.

If more than two candidates are still in the running, a new round of tabulation must begin. If only one or two candidates are still viable, the candidate “receiving a plurality of the votes cast” would be declared the winner.

This only represents a minor change in the wording of this statute, however, as the current language is also centered around the number of candidates left in the running at a given time. If the criteria is indeed as simple as winning the most votes and not necessarily a majority, then why would multiple rounds of tabulation be required?

It remains to be seen if this linguistic shift would be sufficient to bypass the constitutional requirement that state officials be elected by a plurality of votes.

[RELATED: Ranked Choice Voting — A Brief History for Maine and the Nation]

The Maine Supreme Court’s 2017 advisory opinion explained that the multi-round nature of ranked choice voting is inherently contradictory to the State Constitution’s requirement that certain offices be elected by a plurality.

“The Act prevents the recognition of the winning candidate when the first plurality is identified,” the Court explained. “According to the terms of the Constitution, a candidate who receives a plurality of the votes would be declared the winner in that election. The Act, in contrast, would not declare the plurality candidate the winner of the election, but would require continued tabulation until a majority is achieved or all votes are exhausted.”

“Accordingly, the Act is not simply another method of carrying out the Constitution’s requirement of a plurality,” wrote the Court. “In essence, the Act is inapplicable if there are only two candidates, and it is in direct conflict with the Constitution if there are more than two candidates.”

“If, after one round of counting, a candidate obtained a plurality of the votes but not a majority, that candidate would be declared the winner according to the Maine Constitution as it currently exists,” the Court said. “According to the Act, however, that same candidate would not then be declared the winner.”

These conclusions are echoed by the Maine Secretary of State’s Office in the dedicated Frequently Asked Questions page for ranked choice voting.

“The Justices of the Maine Supreme Judicial Court issue a unanimous advisory opinion at the request of legislators in May 2017, concluding that the parts of the ranked-choice voting law that apply to general elections for State Representative, State Senator and Governor were unconstitutional under the Maine Constitution because the Maine Constitution requires the winners of those offices in a general election to be decided by a plurality,” it said.

It is not immediately clear if or how the changes introduced in LD 1666 would address the contradictions highlighted by the Maine Supreme Court, but further clarity may be offered in the coming weeks during or in advance of its public hearing, for which a date has not yet been set.

Cosponsoring this bill are Rep. Laura D. Supica (D-Bangor), Senate President Mattie Daughtry (D-Cumberland), Sen. Nicole Grohoski (D-Hancock), Sen. Craig Hickman (D-Kennebec), Sen. Teresa Pierce (D-Cumberland), Sen. Mike Tipping (D-Penobscot), and House Majority Leader Matt Moonen (D-Portland).

In an email obtained by the Maine Wire, Maine Conservation Voters (MCV) has begun circulating a petition to collect signatures in support of this proposal.

MCV describes itself as being “committed to making sure all Maine people have access to a healthy environment, a strong democracy, and a sustainable economy.”

The email sent Friday indicates that a representative of the group intends to testify in support of this bill during the upcoming public hearing and “want[s] to show lawmakers just how many Mainers care about this issue.”

“The more opportunity you and other Maine voters have to express preferences for candidates who will champion our climate, environment, and democracy, the better off our state will be,” MCV wrote. “LD 1666 will do just that by expanding RCV to races for governor and the state legislature, just as Maine voters originally intended when they adopted RCV at the ballot in 2016.”

This is not the first time that Sen. Reny has attempted to bring ranked choice voting to state elections.

During the most recent legislative session, Reny introduced a constitutional amendment that would have updated the constitution to make the use of ranked choice voting permissible when electing candidates for state offices.

Because constitutional amendments require support from at least two-thirds of both legislative chambers in order to be placed on the ballot for ratification, however, a party line roll call vote in the House prevented the bill from moving forward.

Unlike the previous proposal, LD 1666 would not need to meet this higher level of support, as it only seeks to change the statutory language surrounding ranked choice voting, not the state’s constitution.

LD 1666 has been referred to the Veterans and Legal Affairs Committee for further consideration, and a public hearing for this bill is expected to be scheduled at some point in the near future.