Maine’s highest court – no stranger to the legal debate over ranked-choice voting – heard arguments Thursday about whether voters should be allowed to weigh in this November on its use in presidential elections.
In a remote proceeding that lasted just over 30 minutes, the Maine Supreme Judicial Court heard from attorneys representing Maine Secretary of State Matt Dunlap, the Maine Republican Party and the Committee for Ranked Choice Voting.
At issue is whether the Republican Party collected enough signatures from registered Maine voters to put a question on the ballot seeking to repeal ranked choice’s use in presidential primary and general elections.
If the question makes the November ballot, ranked choice would not be used in this year’s presidential election. That has been the top priority of the Maine Republican Party, which will likely spend more than $1 million on the issue this year.
Dunlap, a Democrat, rejected the petition initiative, saying Republicans fell short of the 63,067 signatures needed, but a lower court reversed that decision after the Republican Party appealed.
Dunlap and the Committee for Ranked Choice Voting are in turn appealing that ruling by Cumberland County Superior Court Justice Thomas McKeon, which overturned Dunlap’s rejection of 988 voter signatures collected by two petition circulators who were not registered Maine voters, as required under the state constitution.
Under state law, the Supreme Judicial Court has until Sept. 24 to make a decision, but it is expected to rule sooner so Dunlap can have absentee ballots prepared and distributed by Oct. 3, also required under state law.
Phyllis Gardiner, a state assistant attorney general representing Dunlap, told the supreme court that McKeon erred in ruling the Maine Constitution doesn’t require signature gatherers to be registered voters.
“A circulator must be a Maine resident and their name must appear on the voting list when soliciting or collecting signatures, not at some later point in time,” Gardiner said paraphrasing the state constitution’s definition of a circulator.
Gardiner also told acting Chief Justice Andrew Mead the circulators in question were not challenging the requirement that they be Maine voters, although McKeon cited a U.S. Supreme Court ruling in a Colorado case that found such a requirement infringed on circulators’ First Amendment rights.
McKeon had also based his ruling on the determination that the circulators had registered to vote by the time they turned in their signatures, Gardiner said. But McKeon overlooked other facts about their petitions, including that they failed to disqualify signatures that appeared more than once or that weren’t from registered voters, she argued.
Even if the high court agreed with McKeon’s reading of the state constitution, his reversal of Dunlap’s decision, “contains an obvious error, that would still be corrected and once corrected would alter the outcome …” she said.
Mead asked if that meant the supreme court would have to review the facts in the lower court case.
“We really have to get down to the nitty-gritty of what the Superior Court did with the math, the numbers and the people there, is that beyond the scope of what we are being asked to consider here?” Mead asked.
Gardiner said that wasn’t the case because McKeon didn’t dispute Dunlap’s factual findings, he overlooked them.
“The actual decision, supported by the agency record, shows that 92 of those signatures were made by voters who either signed other petitions or were not registered voters; both those categories of voters simply cannot, under the constitution, be counted,” Gardiner said.
Should those 92 votes be stricken from the petitions, the petition initiative would fall 22 votes short of the 63,067 signatures needed to put the question on the ballot.
Ranked choice allows, but doesn’t require, voters to rank candidates in descending preference. If no candidate wins more than 50 percent of the vote in the first round of tabulation the candidate with the fewest votes is eliminated, and their voters’ second choices are reallocated to the remaining field. This continues until one candidate has more than 50 percent of the votes.
The law, approved by the Legislature in 2019, requires Maine to award its Electoral College votes to the presidential candidate that wins a clear majority through ranked-choice voting. It also allows the state to continue to award one Electoral College vote to the winner in each of the state’s two congressional districts, but requires each of those results to be decided through ranked-choice voting when applicable. The overall winner in Maine takes the state’s other two electoral votes.
The Republican party appealed Dunlap’s initial decision that the initiative had fallen short of the required number of signatures to Cumberland County Superior Court. The court first ordered Dunlap to take a second look at the petitions, but he still determined the campaign had not collected enough valid signatures to place the ranked-choice question on the November ballot.
During Thursday’s arguments, Patrick Strawbridge, an attorney for the circulators collecting signatures for the GOP, said it was likely that enough valid signatures would be found to offset any that are disqualified should the entire record be reopened.
Strawbridge also said it was “fundamentally unfair” for the court to reopen the record on the facts the lower court had considered, and the high court was limited to considering only errors of law in McKeon’s decision.
“Even if the record could be opened at this late stage, appellees themselves could identify enough valid signatures and would offset the loss in signatures from the appellant’s newly raised challenge,” Strawbridge said.
He argued that the people’s veto process is a fundamental right of Maine voters, and that the high court has found the process is integral to the state’s legal framework.
James Monteleone, an attorney for the Committee on Ranked Choice Voting, argued that McKeon’s decision should automatically be blocked under court procedural rules while the appeal is settled.
Monteleone pointed to another precedent in state law, in which the high court rejected an appeal of a lower court decision in a case concerning the National Organization for Marriage, which worked to repeal Maine’s same-sex marriage law. In that case, the lower court had upheld a Maine Ethics Commission decision requiring NOM to disclose its donors as state law requires.
Monteleone said the court had rejected a stay of the lower court’s ruling to uphold the agency decision. He said the rule in question is only meant to stay a lower court ruling in appeals of decisions that overrule a state agency, not in appeals of decisions to uphold a state agency ruling.
He also reiterated Gardiner’s point that facts about the signatures on the people’s veto petition were never challenged in the lower court.
“There was no finding of fact but rather a reliance on erroneous summaries of the record,” Monteleone said. “Whereas, the record itself, once examined closely, this error is identified.”
Thursday’s arguments marked the third time in four years a ranked-choice voting issue has gone before the state’s highest court.
In an advisory opinion to the state Senate in 2017, the high court ruled that parts of the law that would have applied to gubernatorial and legislative races were in conflict with the state constitution, which expressly calls for those offices to be selected by a plurality system. The Legislature then effectively voted to kill the new law by delaying it until a state constitutional amendment could be passed.
But the law was upheld in another statewide vote, which also amended the law to eliminate its application to legislative and gubernatorial elections so it wouldn’t conflict with the state constitution.
Then the following April, the supreme court upheld the use of the revamped law in primary elections for state office for the first time after it was challenged by state Senate Republicans.
The law also has withstood attempts to overturn it in the federal courts in Maine, earlier this year and following the November 2018 elections, when the system was used for the first time in U.S. history to elect a member to Congress. In August, Federal District Court Judge Lance Walker again tossed out a legal challenge that argued it was unconstitutional and violated the federal Voting Rights Act.
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