A Maine-based policy think tank has published an open letter urging Gov. Janet Mills (D) to veto a recently passed bill expanding the use of ranked choice voting to elections for Governor, State Senators, and State Representatives.
Ranked choice voting has, until now, been used to ensure that the winner of a given election secures a majority, yet Sen. Cameron Reny’s (D-Lincoln) newly-approved bill, LD 1666, changes this threshold and expands the practice to state offices in addition to the federal elections to which it currently applies.
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, meaning that a majority — or more than 50 percent — cannot be required to win.
In light of this, LD 1666 would adapt the language of ranked choice voting laws so that the methodology would be permissible within these constitutional constraints, although it does not seem to actually change anything about the ranked choice voting system itself.
Bill sponsor Sen. Reny explained the intent behind introducing these seemingly minor linguistic changes to state law, arguing that a first choice ranking is not equivalent to a vote.
“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.
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 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.”
[RELATED: Lawmakers Approve Bill Expanding Ranked Choice Voting to All Maine State Elections]
In 2017, Gov. Mills — who was then serving as Maine’s Attorney General — argued that ranked choice voting cannot be reconciled with the requirements outlined in Maine’s constitution.
“The Constitution must be amended before such fundamental changes in Maine’s electoral process can occur,” then-Attorney General Mills said in a brief to the Maine Supreme Court.
“By its plain language, as well as by necessary implication, the Constitution directs that there be one round of counting votes and that it be conducted by local officials,” she said.
Click Here to Read the Full Brief
“The proponents’ attempts to characterize [ranked choice voting] as just a new way of tabulating votes, or as another form of plurality voting, ignore essential differences between the two systems,” said Mills in a subsequent reply brief.
“[Ranked choice voting] is not consistent with the plurality voting system adopted in Maine’s Constitution,” Mills explained.
“In requiring a new method of casting and counting votes, and determining winners, the [ranked choice voting law] goes beyond specifying procedural details,” wrote Mills. “It enacts a different voting procedure than the one prescribed in the Maine Constitution and used for the past 150 years.”
Click Here to Read the Full Reply Brief
In their open letter to Mills published Friday, the Maine Policy Institute references these briefs, noting that both she and the Maine Supreme Court argued against the constitutionality of ranked choice voting when it was first introduced in the state.
“Governor Mills cannot ignore her own prior findings,” the Maine Policy Institute contended.
Although a recent case out of Alaska concerning ranked choice voting is often cited as evidence that Maine’s prior rulings on the issue are outdated, the Maine Policy Institute suggests in their letter that this is not a useful analog.
“Unlike Maine’s, Alaska’s constitution does not embed a historical shift from majority to plurality voting with language that insists on a single count,” the think tank said. “More importantly, [the Alaska case] relies on a frankly absurd legal fiction: a ballot that changes candidates, and then changes hands, multiple times between rounds is still just one vote.”
“If LD 1666 is signed into law, it will invite litigation and uncertainty in the outcome of future gubernatorial and legislative elections,” the Maine Policy Institute argued. “The same chaos that the 2017 advisory opinion and Gov. Mills’ briefs were meant to prevent could return.”
“Governor Mills, your legal reasoning in 2017 was sound,” the think tank concluded, directing their remarks at the governor. “You understood then what remains true now: the Constitution means what it says.”
Click Here to Read the Maine Policy Institute’s Full Open Letter to Gov. Mills
This year was not the first time that the Democratic senator from Lincoln County 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.
After receiving partisan approval in both the House and Senate, LD 1666 was sent to the governor’s desk for a signature. Mills now may either allow the bill to become law or veto it, effectively preventing these changes from taking effect.
If Mills does not either sign or veto LD 1666 within ten days of its passage, the bill will automatically become law without her signature.
Should the governor veto this bill, the move could only be overridden by a two-thirds majority in both the House and the Senate, meaning that it would require bipartisan support.
Disclosure: The Maine Wire is a project of the Maine Policy Institute.
