Voices & Choices

“Ranked choice voting is the law of Maine” It’s time for legislators to start appealing to voters, not judges

“Ranked choice voting is the law of Maine” It’s time for legislators to start appealing to voters, not judges

After years of grassroots organizing, a voter referendum, and a people’s veto, Maine is finally set to lead the nation in holding a statewide legislative primary using ranked choice voting this June. Following yet another legislative effort to fight the will of the people through litigation, the Maine Supreme Judicial Court held this week—unanimously—that “ranked choice voting is the law of Maine with regard to the primary elections on June 12, 2018.”

Yet even with this definitive ruling, some opponents of the law are still brainstorming ways to win in court if they lose at the ballot box. Seizing on a question by Justice Donald Alexander at oral argument, one theory seems to be that ranked choice voting raises concerns about equal protection, or “one person, one vote.” But as Chief Justice Leigh Saufley noted, that argument was not before the Court. And for good reason: it has been shot down by every single court to consider it.

Both federal and state courts alike have rejected the argument that RCV somehow gives certain voters “extra votes” when their second- or third-preferences are considered. As the Supreme Court of Minnesota has recognized in upholding RCV unanimously in 2009, “Every voter has the same opportunity to rank candidates when she casts her ballot, and in each round every voter's vote carries the same value.” If someone’s first preference is eliminated in the first round, their vote counts towards their second preference in the next round. If someone’s first preference survives the first round, their vote doesn’t suddenly stop counting—it counts towards their first preference in the next round. As the U.S. Court of Appeals for the Ninth Circuit has held, also unanimously in a three-judge ruling, “the option to rank multiple preferences is not the same as providing additional votes . . . . Each ballot is counted as no more than one vote at each tabulation step.”

Consider a traditional two-round runoff election with three candidates: If your favorite candidate doesn’t make it to the runoff election, you vote for your second-favorite option in the second round. If your favorite option does make it to the runoff, however, you still vote for them again in the runoff election. The idea that your vote in the second round wouldn’t—or didn’t—count just because you continued to support the same candidate doesn’t make any sense. The Supreme Court of Minnesota made precisely this point in rejecting a “one person, one vote” challenge to the use of RCV in Minneapolis:

We reject the central premise of [the] unequal weighting argument: that the vote for a continuing candidate is exhausted in the first round in which it is exercised and then is not counted and is of no effect in subsequent rounds. On the contrary, the vote for a continuing candidate is carried forward and counted again in the next round. Just because the vote is not counted for a different candidate in the new round (as is the vote originally cast for an eliminated candidate), does not mean that the ballot was exhausted, that the vote for the continuing candidate is not counted in the subsequent rounds, or that the voter has lost the ability to affect the outcome of the election. Indeed, it is only because votes for continuing candidates are carried forward and combined with subsequent-choice votes of voters for eliminated candidates that any candidate can eventually win.

The fact that the law treats all voters—and votes—equally is obvious: “All voters can rank . . . choices on a single ballot, cast those ballots at the same time, and have their preferences calculated in the same manner . . . . [N]o voter is denied an opportunity to cast a ballot at the same time and with the same degree of choice among candidates available to other voters.” As the Massachusetts Supreme Judicial Court has stated, in yet another unanimous ruling in 1996, “it would be misleading to say that some ballots are counted two or more times” under ranked choice voting. Each voter gets one ballot, and each ballot is ultimately counted towards one candidate.

This latest objection to the law been raised and rejected unanimously in Massachusetts,[1] Minnesota,[2] Michigan,[3] and California[4]—and if legislators are serious about respecting the will of the people and avoiding electoral confusion, we won’t see this far-fetched argument reappear in Maine. (Indeed, any candidates opting to “wait and see” what the results are before bringing such a challenge cannot credibly claim to be serving any interests but their own.) The People of Maine have spoken, and it is high time that legislators appeal to their constituents if they want to keep the old, broken system in place. The fact that they need reminding is the best evidence yet that a new approach to our politics is overdue.

G. Michael Parsons (@GMikeParsons) is a new Adjunct Fellow at FairVote, providing legal insights on ranked-choice voting, fair representation voting, and other FairVote initiatives and reforms. Michael is an Acting Assistant Professor at the New York University School of Law (starting June 1, 2018). His scholarship focuses on voting rights, election law, and the political process. Prior to joining NYU Law, Michael practiced political, appellate, and antitrust law and clerked for the Honorable Norman H. Stahl of the U.S. Court of Appeals for the First Circuit and the Honorable Robert E. Payne of the U.S. District Court for the Eastern District of Virginia.

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[1] McSweeney v. City of Cambridge, 422 Mass. 648 (1996).

[2] Minnesota Voters Alliance v. City of Minneapolis, 766 N. W.2d 683 (Minn. 2009).

[3] Stephenson v. Ann Arbor Bd. of Canvassers, No. 75-10166 AW (Mich. Cir. Ct. Nov. 1975).

[4] Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011).

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