Voices & Choices

Maine law still requires RCV in June primaries

Maine law still requires RCV in June primaries

Update: On April 3, Maine Superior Court Justice Michaela Murphy issued a 14-page opinion ordering the Maine Secretary of State to implement ranked choice voting in time for the June, 2018 primary elections. 

The story of ranked choice voting in Maine has been at once inspiring and frustrating. Inspiring, because the people voted, in historic numbers, to adopt ranked choice voting for their state and federal offices. Frustrating, because a series of efforts, each more convoluted than the last, have been taken to deny Mainers what they voted for. Today, that twisted path takes another turn, but we fully expect to see ranked choice voting used for the first time in Maine's June primaries this year.

For background: Question 5 passed with over 52 percent support in November, 2016, adopting ranked choice voting for primary and general elections for congressional offices, state legislative offices, and governor. It won with the second-greatest number of votes in the history of initiatives in Maine. Concerns were raised that Maine constitutional provisions requiring the election of governor and both houses of state legislature by a "plurality" of votes cast might make the new law inapplicable to those elections. The Maine Senate used a process colloquially referred to as a "solemn occasion" to ask the Maine Supreme Court for its non-binding opinion on the issue, and the Maine Supreme Court opined that there was indeed a conflict and so RCV could not be used for general elections for governor and state legislature.

The Maine state legislature then used that non-binding advisory opinion as pretext for a law that would delay the implementation of ranked choice voting for two election cycles, at which point it would be automatically repealed unless the Constitution were amended - effectively, this was a repeal, as amending the Maine constitution requires supermajority votes in the closely divided state legislature. The people of Maine then fought back - they gathered signatures to undo the new "delay-and-repeal" law with a "people's veto," while keeping the parts of the delay-and-repeal law that apply to the offices affected by the Supreme Court decision: general elections for governor and state legislature. After it was confirmed that they had gathered enough signatures, the delay-and-repeal law was suspended.

Like I said, a twisted path to where we are today.

The common wisdom, echoed by Maine Secretary of State Matt Dunlap consistently until today, is that RCV will be used in Maine's primary elections in June, when Maine voters will also vote - for the second time - on whether to continue using RCV for primary elections and congressional general elections going forward. Matt Dunlap recently said that it would be a big success in June.

However, today, Matt Dunlap claimed that a technical drafting error in the people's veto means that RCV cannot be used in its June primaries. Setting aside how strange it is that such a thing could go unnoticed until a matter of days before the ballots must be printed, this claim lacks merit.

Here is the language of the people's veto, which Maine voters will vote on this June:


The gist of the claim is that even after the people's veto goes into effect, the following language, which has been in Maine law since well before the 2016 election, remains in state law: "In a primary election, the person who receives a plurality of votes cast for nomination to any office ... is nominated for that office[.]" The Ranked Choice Voting Act - Question 5 - did not repeal this, because it was drafted long before the Maine Supreme Court released its non-binding advisory opinion that RCV is not consistent with "plurality of votes" language. The delay-and-repeal law would have amended it (Section 6 of the above document) to state that after December of 2021, nominations would instead be by RCV. The people's veto would undo that amendment, returning this section to its prior state.

The people's veto would also keep in place the following language from Question 5, as amended by the delay-and-repeal law: "'Elections determined by ranked choice voting' means: A. Primary elections for the office of United States Senator, United States Representative to Congress, Governor, State Senator and State Representative."

The end result is that Maine law presently, as of the certification of the people's veto petition, clearly, specifically, and unambiguously requires the use of RCV in primary elections. The contrary claim is that the earlier Maine law stating that primaries are decided by "a plurality of votes cast" conflicts with RCV and takes precedence.

That argument lacks merit. First, it still has not been decided that RCV does conflict with "plurality of the votes" provisions. As I have stated several times in this blog, the opinion of the Maine Supreme Court was advisory and non-binding. The law is presumed constitutional until a court holds otherwise in a formal legal proceeding.

Second, even if the two do conflict, the language requiring RCV in primary elections is what takes precedence. It is more specific, it is more recent, and its intent is obvious. When deciding what to do with two contradictory laws, those elements all favor the use of RCV.

The Committee for Ranked Choice Voting has already announced its intent to file a lawsuit over the claim that RCV cannot be used in June. We look forward to its swift resolution in court.

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