Maine lawmakers have made a last-minute move putting the brakes on the controversial effort to expand the use of ranked choice voting to state elections.
After advancing through the House and Senate, largely along partisan lines, the ranked choice voting expansion was sent to Gov. Janet Mills (D) desk for a signature earlier this month.
On Wednesday afternoon, however, both chambers agreed by voice vote to recall the bill from her desk. The Legislature then adjourned sine die later that day, carrying the bill over to the next special or regular session.
A few days before this, the Maine Policy Institute, a nonprofit policy think tank, published an open letter to Gov. Mills urging her to stand by her previous stance on the constitutionality of ranked choice voting and veto this bill.
For the past eight years, ranked choice voting has been understood as a means by which to ensure that the winner of a given election secures a majority of the vote, but a bill introduced this legislative session by Sen. Cameron Reny (D-Lincoln) sought to change this framing and expand its use to state offices.
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 sought to 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 Justices’ 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, 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.
“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.”
Because the Legislature agreed to recall LD 1666 from the governor’s desk, Mills will not be given the opportunity to sign or veto the proposed ranked choice voting expansion at this time.
It remains unclear whether the legislative action on Wednesday was motivated by a desire to spare the governor from making a controversial call, or a fear that she might veto the bill and the hope that more time could help its backers persuade her to either sign it or allow it to become law without her signature next year.
LD 1666 will now be carried over into the next special or regular session of the 132nd Legislature for further consideration.
