AUGUSTA — Gov. Paul LePage declined to get involved in Rep. Bruce Poliquin’s latest legal request, but not without getting in another dig at a ranked-choice voting process he views as “repugnant.”
Meanwhile, attorneys for Poliquin and Maine Secretary of State Matthew Dunlap sparred over whether Dunlap exceeded his authority by certifying Democrat Jared Golden as the winner of Maine’s 2nd District race without LePage’s signature.
“Under the U.S. Constitution, it is now up to the United States House of Representatives to determine, when it convenes on January 3, 2019, whether to seat Jared Golden, who is the undisputed winner of the ranked-choice voting tabulation under the RCV Act and thus the Representative-elect for Maine’s Second Congressional District,” Assistant Attorney General Phyllis Gardiner wrote on Dunlap’s behalf.
In a brief filed late Wednesday with the 1st U.S. Circuit Court of Appeals, the governor’s attorney said LePage “does not take any position” on Poliquin’s attempt to prevent the state from certifying Golden as the winner while the court hears his constitutional challenge of ranked-choice voting.
“The Governor notes, however, that he does disagree with the Secretary of State on the merits of this challenge, and reiterates the points made in his letter to the district court,” attorney Patrick Strawbridge wrote. “It is the Governor’s view that this process is repugnant to the governing legal principles that each person’s vote be counted in every election, as well as the constitutional guarantees of due process and equal protection.”
Poliquin, a Republican seeking a third term in Congress, wants the federal court to rule that Maine’s ranked-choice voting system is unconstitutional and to either declare him the winner or order a new election. A federal judge in Bangor resoundingly rejected those arguments this month, prompting Poliquin to file an appeal with the 1st U.S. Circuit Court of Appeals in Boston.
Poliquin received the most votes – or a “plurality” – in the first tally on Election Day, but fell short of the majority of votes needed to avoid a ranked-choice runoff. Golden defeated Poliquin by more than 3,500 votes after the second- and third-choice preferences of voters who supported independent candidates Tiffany Bond and William Hoar were factored in during the nation’s first use of ranked-choice voting to decide a congressional election.
After Poliquin halted the hand-recount of ballots this month, Dunlap issued a “certificate of election” to Golden – a former state lawmaker from Lewiston and a Marine Corps veteran – and sent the certification to LePage for his signature. After LePage declined to sign because of the court case, Dunlap sent the certificate to the U.S. House of Representatives without the governor’s signature.
In her court filing, Gardiner pointed out that other members of Congress – including one from Maine, Rep. John Utterback in 1933 – have been seated without election certificates. Now, it is up to the U.S. House to decide – “not any state or federal court,” Gardiner wrote – whether to seat Golden when the chamber convenes on Jan. 3.
“The certificate of election that the Secretary has signed and sent to the House Clerk provides a credential for Representative-elect Golden to present to the House, but it does not determine as a matter of law whether he will be seated by that body,” Gardiner wrote.
In a legal response, the attorneys for Poliquin and the three other plaintiffs accused Dunlap and Golden of engaging “in a bald and irresponsible effort to frustrate judicial review.”
“The Secretary of State … has self-certified the election results in violation of state law vesting that authority in the Governor in a transparent bid to convince this Court to cede its jurisdiction over constitutional claims to the U.S. House of Representatives,” Poliquin’s attorneys wrote. “This Court should not permit such unlawful gamesmanship of the solemn judicial process by which citizens obtain review of constitutional claims.”
The two sides offer differing interpretations of Maine law that declares a “governor may not issue a certificate while the election is contested before the court.”
Gardiner argues on behalf of Dunlap that statute “refers only to elections in which a state court has jurisdiction to resolve disputed and/or challenged ballots pursuant to Maine’s recount statute”
But Poliquin’s team argues it’s Dunlap’s signature – not LePage’s – that is essentially irrelevant when it comes to certifying an election winner and that the secretary was trying to “usurp the governor’s legal authority.”
“The Secretary makes no appearance in this statute, and his signature is neither required nor even contemplated. His only function, under a separate provision, is to ‘prepare’ and ‘present’ to the Governor a certificate of election, ‘in order that the same may receive the signature of the Governor,'” Poliquin’s responding legal brief says.
In their initial filing, Poliquin’s team asked that the appellate court issue a decision by Friday and hold expedited hearings on the oral arguments. However, it was unclear Thursday when the court will rule on the requests.
In related news, Dunlap’s office announced Thursday that Poliquin’s campaign must pay $9,560.52 – on top of a $5,000 deposit already paid – to cover the costs of the partial recount. The breakdown of the total $14,560.52 cost for the recount was $2,446.16 incurred by Dunlap’s office and $12,114.36 incurred by Maine State Police as they transported ballots to Augusta.
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