Ballots are prepared to be tabulated for Maine’s Second Congressional District’s House election Monday, Nov. 12, 2018, in Augusta, Maine. The election is the first congressional race in American history to be decided by the ranked-choice voting method that allows second choices. (AP Photo/Robert F. Bukaty)
Legal experts and constitutional scholars interviewed by the Press Herald mostly agree that a lawsuit filed Tuesday challenging Maine’s ranked-choice voting law is unlikely to prevail.
Rep. Bruce Poliquin, along with three other Maine residents, sued Maine Secretary of State Matthew Dunlap in federal court, claiming that ranked-choice voting violates the U.S. Constitution. Lawyers for the plaintiffs also filed a motion for preliminary injunction and a request for a temporary restraining order, seeking to halt the processing of ballots in the 2nd Congressional District race.
“It’s hard to predict what any judge will do, but I don’t think the arguments have any merit. I think it’s a political move,” said Dmitry Bam, a constitutional law professor at the University of Maine School of Law.
Poliquin’s lawsuit claims the use of ranked-choice voting violates the U.S. Constitution because the document “sets a plurality vote as the qualification for election” to Congress.
But Bam said there is nothing in Article 1, Section 2 of the U.S. Constitution – which governs federal elections – that references a plurality of votes. Plurality means more than any other candidate but not a majority.
Last year, the Maine Supreme Judicial Court issued an advisory opinion that said ranked-choice voting violated the Maine Constitution, which requires elections for state office to be decided by a plurality of votes.
“(Poliquin) seems to be saying that (plurality) is built in because it’s always been done that way, but that’s not how it works,” Bam said.
Mark Gaber, senior legal counsel for the Washington D.C.-based Campaign Legal Center, called the lawsuit “frivolous.”
“Courts have not questioned the constitutionality of ranked-choice voting, and indeed have cited it as a lawful form of voting,” he said
Rick Hasen, a professor of law and political science at the University of California at Irvine, doesn’t believe the suit has much chance, but he also drew attention to how late it was filed.
“The use of ranked-choice voting is not a surprise and its implementation rules have been available for a while,” Hasen wrote on Twitter.
Jim Burke, a law professor at UMaine, said he wouldn’t have expected a suit to be filed before the election.
“You can always file stuff with a court, but I would have been shocked if any federal court took this case before something arose because judges hate giving advisory opinions,” he said.
Paul Mills, a Farmington attorney who has written extensively on Maine’s electoral process and is the brother of Governor-elect Janet Mills, said he fully expected a suit to be filed and said having a court decision on record will be helpful going forward.
“I guess there is some ray of light to take this through, but the overwhelming feeling seems to be that it’s not going to be successful,” he said.
In addition to the absence of the word “plurality” from the U.S. Constitution, the document seems to clearly say that states have latitude to run their elections in the manner they see fit.
Gaber said even some U.S. Supreme Court judges are on record with the position that states get to choose how they conduct their elections. He and others said ranked-choice isn’t demonstrably different from traditional runoff elections. Mississippi is going through one right now for its U.S. Senate race.
If the judge, Lance Walker, rules against the ranked-choice lawsuit, it could be appealed.
If Walker rules in favor, the next step is unclear.
Bam said his opinion is that even if a judge were to rule in Poliquin’s favor, “the only plausible remedy is a re-election.” He explained that allowing the election day totals to stand would effectively nullify thousands of voters.
“Even if some voters were confused, that’s certainly not true of most who made their choices based on ranked-choice,” he said.
Mills, though, said he couldn’t see another election happening. “I think the court would bend over backward to avoid that because you couldn’t replicate the experience (of Election Day),” he said.
Eric Russell can be contacted at 791-6344 or at:
erussell@pressherald.com
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