Maine lawmakers have voted to expand the use of ranked choice voting to gubernatorial elections, as well as races for seats in the State House and Senate.
Ranked choice voting has, until now, been used to ensure that the winner of a given election secures majority support, yet Sen. Cameron Reny’s (D-Lincoln) new bill LD 1666 purports to take a different approach.
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 constitutional constraints.
An amended version of the bill was approved along nearly partisan lines in both the House and the Senate.
This measure looks to amend the definition of “ranked choice voting” under 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,” its text reads.
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 Maine 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: Dems Look to Use Ranked Choice Voting in State Elections, But Constitutional Questions Remain]
In testimony before the Veterans and Legal Affairs Committee, Maine Secretary of State Shenna Bellows urged lawmakers to support the measure.
“It is about time that Maine election laws match what Maine voters supported in that election,” she said, referring to the referendum in which Mainers voted to implement ranked choice voting statewide.
“As the Department that oversees Maine elections, we know that voters are sometimes confused and often frustrated by the lack of ranked choice voting in these state-level elections,” Secretary Bellows continued.
“We are concerned that voter confusion and frustration may eventually lead to voter apathy — something we absolutely do not want to see,” she said. “And while we can and would continue to ensure that voters know what to expect when they receive their General Election ballots, it would be much simpler for everyone if the laws matched what voters expect and wanted them to be.”
Bill sponsor Sen. Reny explained the intent behind the seemingly minor changes to state law introduced by this bill.
“The bill modifies the [ranked choice voting] statute to clarify that a ranking is not a vote, but is instead a preference expressing how the voter would like their vote to count in the tabulation process,” Reny said. “The changes in this bill are a technical update to ensure our statutory language aligns more clearly with important provisions in our state’s constitution.”
Referencing the Maine Supreme Court’s advisory opinion, Reny suggests that the Justice’s opinion “seems to have been based on an assumption that a voter’s ‘first-preference ranking’ was equivalent to the voter’s ‘vote.'”
“This bill aligns our statutory language with the way courts have more typically viewed [ranked choice voting], and should clarify the ways in which [ranked choice voting] can be used for general elections for governor and state legislature consistent with the text, history, and purpose of our state constitution,” Reny argued.
While many voting rights groups also testified in support of this bill, the Maine Policy Institute (MPI) highlighted the potentially questionable nature of the measure.
“Such a maneuver is not only legally dubious, but also deeply irresponsible,” they argued. “It erodes trust in our electoral system, invites costly litigation, and further politicizes the election administration process.”
“Rather than respect the judicial process and constitutional law, proponents of LD 1666 seek to impose a convoluted election system that has already been shown to confuse voters, delay results, and suppress confidence in elections,” MPI argued.
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.
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 did 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.
“Should Governor Janet Mills fail to veto this bill, I will back a legal effort to contest its constitutionality,” Falmouth businessman and GOP gubernatorial candidate David Jones pledged on Thursday. “This legislation smacks of a deliberate attempt to manipulate the 2026 election, with Shenna Bellows clearly in on the scheme,” he added.
This bill is now expected to be sent to Gov. Janet Mills’ (D) desk for a signature.
Disclosure: The Maine Wire is a project of the Maine Policy Institute.
