Posted by Drew Penrose on November 15, 2016
On Election Day 2016, voters in Maine showed that they intend to live up to Maine’s motto: “Dirigo,” meaning “I lead.” They became the first state to adopt ranked choice voting for nearly all of their state’s primary and general elections: to elect their governor, U.S. Senators, U.S. House members and state legislators. In Portland, Maine, voters who have direct experience with RCV in electing their mayor in 2011 and 2015, voted in favor of expanding their system statewide by an overwhelming share of 71.5% to 28.5%.
Most coverage has been positive. In Maine, the measure was credited with providing “hope for the future.” National coverage has had a similarly optimistic tone, with publications like the Christian Science Monitor describing it as “Maine’s solution to toxic politics.” Even internationally some have celebrated the result; for example, Katie Ghose of the United Kingdom’s Electoral Reform Society wrote about Maine making history. Pre-election coverage included powerful pieces by Stanford’s Larry Diamond and FairVote board members Hendrik Hertzberg, Michael Lind, Paul Jacob and Krist Novoselic as collected on our blog.
However, other voices have raised doubts as to when or whether it can be implemented. Those doubts come from two concerns: issues raised as to whether the measure requires an amendment to the Maine Constitution, and questions as to whether election administrators will be able to implement the system. FairVote has looked into these issues, and we can confidently say that neither will be a barrier to implementation for use in 2018. Ranked choice voting will be used starting in the June, 2018 primary elections, and we believe voters will like it and use it well.
RCV and the Maine Constitution
Ranked choice voting is already in use by 11 cities, including over two election cycles in Portland, Maine. As with many new ideas, it has been challenged as being unconstitutional a number of times before, and even tested in court. The state Supreme Courts of Massachusetts and Minnesota both upheld RCV unanimously for use in their states in 1996 and 2009 respectively, for example, and a panel unanimously upheld its use under the U.S. Constitution in California in the federal Ninth Circuit Court of Appeal in 2011.
The new claims against RCV come from two provisions in the Maine Constitution: one that states candidates for governor and state legislature are seated if they receive a “plurality” of votes, and one that states that in elections for governor and state legislature, municipalities must “sort, count and declare” the votes won by each candidate.
As an initial matter, both provisions only apply to general elections for governor and state legislature. No one has even claimed that RCV conflicts with any constitutional provisions affecting primary elections or affecting the election of Representative in Congress or Senator. Even if a court did hold that RCV was inconsistent with these provisions of the state constitution (which is unlikely, as described below) Maine courts would sever the parts affected and leave in place the rest of the law. Consequently, these claims will not stop RCV from being used in primary elections for all offices in 2018, and then again for Representative and Senator in November, 2018.
Even as to the general elections for governor and state legislature, however, the arguments against RCV are weak, and high profile attorneys in Maine have considered and rejected them, as have attorneys at the international law firm Hogan Lovells in a detailed memo developed with FairVote’s legal team.
The “plurality” provision was put in to replace an old rule under which the legislature could appoint people to office any time an election failed for lack of a majority. Rather than allow the legislature to pick their governor, Maine decided it would be better to seat the candidate with the most votes (which is the dictionary definition of “plurality”). It refers to the election of a candidate based on the number of votes they receive, not based on any particular method of counting votes. Under RCV, the candidate elected is always the candidate with the most votes in the final round.
The “sort, count and declare” provisions also should not prevent RCV from being used to elect Maine’s governor or state legislature. Those provisions exist to prevent “fraud or mistake” by maintaining chain of custody of the ballots, and the Maine Supreme Court has upheld methods of central counting that are consistent with that purpose. Every time a recount occurs, ballots are sent to Augusta to be counted. Under RCV, the local municipalities will still have the first responsibility for counting the votes. Only in those races where an “instant runoff” is required will ballots or ballot data go to Augusta, and then they can follow chain of custody rules already in place for recounts.
In either case, Maine courts are unlikely to strike down a law without a much stronger argument against it than the ones presented here. Maine courts have said many times that if a law can plausibly be construed as constitutional, then they will not interfere with the democratic process by striking it. That is a commendable exercise of judicial restraint, essential to maintaining the role of courts as neutral arbiters, and Maine courts consistently follow it.
Election Administration in Maine
Like election officials all over the country, administrators in Maine have a difficult task every election, and all too often are expected to perform without the support and funding they need. FairVote is committed to ensuring that that will not be the case for Maine’s first RCV elections in 2018. We are working with a team of election administrators with experience running RCV elections to help compile advice and best practices for administering RCV elections. Although we helped to assemble the project, we have given ownership of it to the election officials, so that they can create resources that are genuinely for election officials by election officials who understand their duties. They have begun to publish those materials at www.rankedchoicevoting.org.
Maine election officials will be able to administer statewide RCV elections in 2018, but deserve our full support as they take on the challenge. Most facets of election administration do not change with a switch to RCV, and those that do can draw on Maine’s experience with recounts and cities like Portland’s prior uses of RCV. Representatives from Maine’s League of Women Voters have already begun meeting with staff in Maine’s Secretary of State’s office to make sure they have access to expertise in RCV election administration from across the country. All eyes will be on Maine in 2018, and many from the election administration community are ready to provide support to Maine to ensure their first RCV elections go well.