After being recalled from Gov. Janet Mills’ (D) desk as the eleventh-hour last year, Maine lawmakers are scheduled to discuss a controversial bill expanding the use of ranked choice voting to all state elections during a Friday work session.
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) bill LD 1666 looks 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.
[RELATED: Lawmakers Approve Bill Expanding Ranked Choice Voting to All Maine State Elections]
An amended version of the bill was approved along nearly partisan lines in both the House and the Senate last year, sending the legislation to the governor’s desk for a signature.
Before Gov. Mills was forced to make a decision on the bill, however, lawmakers recalled it and carried over into the new legislative session.
LD 1666 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.
[RELATED: Ranked Choice Voting Expansion Recalled from the Governor’s Desk at the Eleventh Hour]
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.
During a 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 this 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.
Just a few days before lawmakers voted to recall this bill from the governor’s desk, 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.
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 was not given the opportunity to sign or veto the proposed ranked choice voting expansion at the time, or to allow the measure to become law without her signature.
The Veterans and Legal Affairs (VLA) Committee will now again be considering this bill during a work session scheduled for Friday, January 30 at 10am.
Click Here for More Information on LD 1666
Disclaimer: The Maine Wire is a project of the Maine Policy Institute.
