On November 8, 2016, Maine's Question 5, the Ranked Choice Voting Act, passed with 52% support, earning the second-greatest number of votes in the history of initiatives in Maine. The law stated that all primary and general elections for Maine's governor, state legislature, and federal congressional offices would be conducted by ranked choice voting. Maine's first use of ranked choice voting under this law will take place on June 12, 2018, when ranked choice voting will be used in Maine's state and federal primary elections.
The Ranked Choice Voting Act has been subjected to various legislative and judicial actions. This page summarizes the events that led up to Maine's first use of ranked choice voting for statewide elections.
On October 19, 2015, Maine electoral reformers delivered over 70,000 signatures, mostly gathered by volunteers, to the Maine Secretary of State in Augusta. The Committee for Ranked Choice Voting, a grassroots group of Maine citizens, garnered broad support from across the political spectrum, all with a singular focus: uphold majority rule and give voters a stronger voice in elections. The signatures put the citizens initiative for ranked choice voting on the ballot for the November 2016 general election.
The initiative was certified as "Question 5" in June, 2016. The question was worded on the ballot as follows:
Do you want to allow voters to rank their choices of candidates in elections for U.S. Senate, Congress, Governor, State Senate, and State Representative, and to have ballots counted at the state level in multiple rounds in which last-place candidates are eliminated until a candidate wins by majority?
On Election Day, November 8, 2016, a majority of Maine voters voted yes on Question 5. It was codified into Maine election law.
After Question 5 passed, some, including the Maine Attorney General, expressed the opinion that parts of it could not be implemented because they contradicted parts of the Maine Constitution. This centered on archaic provisions of the Maine Constitution governing the election of its governor, as well as representatives to the state house and state senate stating that a candidate must be seated if they receive a "plurality" of votes. This concern stems from the colloquial use of "plurality" to mean "the most, but less than a majority" in the context of elections. Because a goal of ranked choice voting is to promote the election of candidates by a majority of votes rather than a mere plurality, some believed ranked choice voting violated these "plurality" provisions.
This concern had been raised during the campaign as well, but several high profile attorneys in Maine publicly stated that this language did not bar the use of ranked choice voting. Rather, "plurality" in the Maine Constitution meant that the candidate must be seated if they win the most votes at the end of the election, without dictating how the votes were to be counted. They pointed out that these provisions had been put in place to replace the old system by which an election simply failed if no candidate received a majority. When an election failed, offices like the governor could be appointed by the state legislature. Similar provisions exist in many state constitutions, generally to replace provisions that allowed for appointment or repeated elections in cases where no candidate receives a majority of votes.
The Maine Constitution has another unusual provision that allows the governor or a branch of the state legislature to essentially ask the Justices of the State Supreme Court for their non-binding opinion on an important matter. The Maine State Constitution says that the Justices should do so "upon solemn occasions," and so the procedure is called a "solemn occasion." On February 2, 2017, the Maine State Senate voted 24-10 to ask the Justices for their opinion on whether the Ranked Choice Voting Act contradicted the "plurality" provisions in the Maine Constitution.
The Maine Supreme Judicial Court accepted briefing and heard oral argument on the question. FairVote was among those who submitted a brief arguing that there was no conflict. Others included the Committee for Ranked Choice Voting, the Maine League of Women Voters, national scholar Larry Diamond, and the preeminent scholar on the Maine Constitution, Marshall Tinkle. Nonetheless, on March 23, 2017, the Justices issued their advisory opinion concluding that general elections for governor and state legislature could not be conducted by ranked choice voting due to the plurality provisions.
The opinion was purely advisory, leaving the law in place. Also, because no such plurality provisions exist for either primary elections or for the election of federal congressional offices, the Justices did not find any issue with applying ranked choice voting to those elections.
Because the "solemn occasion" had no direct legal effect, the Maine legislature had the responsibility to either amend the Maine Constitution or to amend the Ranked Choice Voting Act. If they failed to do either, then the state would be obligated to conduct all state elections by ranked choice voting, which would inevitably result in a lawsuit.
However, the state legislature could not agree on the correct path forward. Bills were introduced in June 2017 that took various approaches, but all of them failed. After the legislative session ended, the Maine legislature called a special session in October, and hastily passed "An Act to Implement Ranked-choice Voting in 2021." That bill stated that ranked choice voting would not be implemented in 2018 or in 2020, and then the entirety of the Ranked Choice Voting Act would be automatically repealed unless the Maine Constitution were amended prior to December 1, 2021.
Effectively, this bill was a repeal of the Ranked Choice Voting Act that the people had passed directly less than a year prior, because Maine has a particularly difficult process for amending its state Constitution, requiring supermajority votes in the state legislature.
Immediately after the delay-and-repeal bill passed, the Committee for Ranked Choice Voting began a campaign to save ranked choice voting in Maine. In Maine any law passed by the state legislature can be blocked by a "people's veto." The people must petition to stop the law. If they gather enough signatures in time, the law is suspended and at the next election voters decide whether to block the law permanently.
Mainers successfully gathered more than 80,000 signatures in 88 days, successfully suspending the law. As a result, the 2018 primary elections will still be conducted by ranked choice voting, and at the same election, Maine voters will vote on whether to block the law permanently. Cleverly, the people's veto excludes the portions of the delay-and-repeal law regarding general elections for governor and state legislature, meaning that ranked choice voting will not apply to them. Therefore, the people's veto both protects ranked choice voting and avoids all legal issues resulting from the solemn occasion.
On March 29, Maine Secretary of State Matt Dunlap raised a legal question regarding whether the people's veto really did require the June primaries to be conducted by ranked choice voting. On April 3, the Maine Superior Court held that it did. The Maine Senate quickly voted, along party lines, to enter the litigation and argue, based on a variety of theories, that Maine should not implement ranked choice voting. This quickly led to the Maine Supreme Court unanimously rejecting those claims and unambiguously concluding that "ranked choice voting is the law of Maine with regard to the primary elections on June 12, 2018."
In early May, yet another legal challenge was levied, this time by the Maine Republican Party. It adopted a rule declaring that its party nominations are decided by plurality at its state convention on May 4th, and the very same day filed a lawsuit in federal court arguing that the First Amendment to the United States Constitution requires that Maine respect its new party rule and not apply ranked choice voting to its primaries. Oral arguments in that case will not occur until May 23, and given that absentee voters have already begun voting by ranked choice voting in Maine, success seems unlikely.
Maine's first use of ranked choice voting will therefore be its primary elections on June 12, 2018. At the same election, Mainers will vote on whether to retain ranked choice voting going forward for all future primary elections as well as general elections for federal congressional offices.