Dem AG Says Maine’s RCV Expansion Violates State Constitution

The Maine Supreme Court is slated to weigh in on a bill that would expand ranked-choice voting (RCV) in the state to include state lawmaker and gubernatorial races — legislation Maine’s Democrat attorney general says violates the Pine Tree State’s constitution.

As the Federalist has previously reported, in RCV elections, voters “rank” a certain number of candidates according to preference. If no candidate secures a majority of “first-choice votes in the first round of voting,” the nominee who comes in last place is eliminated, and his votes go toward whichever candidate the voter ranked second. The cycle continues until a candidate receives more than 50 percent of the vote. Maine already employs RCV in primary elections as well as general elections for federal office. The bill in question — LD 1666 — would expand the method to Maine’s general and special elections for governor, state representative, and state senator.

Maine’s Democrat Attorney General Aaron Frey filed a brief last week in the Maine Supreme Court arguing the expansion does not align with language in the state’s constitution, which mandates that candidates for governor and the state legislature must win an election by a “plurality” of votes. This means a candidate must simply secure the highest number of votes between his competitors rather than a majority to win a race.

Although many election integrity activists may disagree with Frey’s claim that ranked-choice “is a workable and reasonable way to decide elections,” he nonetheless maintains that RCV “is not the sort of plurality ‘first past the post’ system that the Maine Constitution mandates for the elections at issue here.”

“The statutory wordsmithing proposed by LD 1666 cannot change the fact that ranked-choice voting is fundamentally a process that requires ‘sequential rounds’ of tabulation … and thus produces an initial plurality winner who can go on to lose in subsequent rounds of tabulation,” he continues.

Both chambers of the state legislature passed LD 1666 last session, but recalled the bill before the governor could sign or veto it. Democrat state Sen. Cameron Reny said that Gov. Janet Mills planned to veto the legislation in late January but left the door open for a “solemn occasion,” according to the Maine Morning Star. As described by the outlet, a solemn occasion is “a rarely used action in which lawmakers can ask the Maine Supreme Judicial Court to produce a nonbinding decision on the legality of pending legislation.” The legislature requested such an opinion from the justices last month, and the bill will wait in the state senate until it is reviewed.

This is not the first time RCV efforts in Maine have threatened the state’s “plurality” threshold.

After Maine voters approved a ballot initiative in 2016 that would employ RCV in state and federal primary and general elections, the state Senate also requested a solemn occasion. The state’s highest court released an advisory opinion asserting that using RCV for general gubernatorial and state legislature races did not align with the constitution. Nevertheless, some Maine Democrat lawmakers have reportedly claimed that LD 1666 “does conform” with the constitution and that the 2017 opinion is “not binding.”

Frey argues in his brief that “nothing has changed” since the Maine Supreme Court offered its opinion in 2017, and that lawmakers’ resolution to seek a solemn occasion is based on precedent from a completely different state.

“The resolution seeking a solemn occasion cites as a new development Kohlhaas v. State … in which the Alaska Supreme Court determined that Alaska’s ranked-choice voting statute did not contradict the provision in its constitution providing that the candidate ‘receiving the greatest number of votes shall be governor,’” he wrote. “That decision, out of a different jurisdiction and interpreting a different constitution with a different history, obviously does not control here.”

Frey also argues that the decision in Kohlhaas v. State “takes issue with the notion that ranked-choice voting imposes a majority threshold,” even though in RCV, candidates who receive a plurality of the “first-choice votes” could “go from winner to loser as votes are reallocated.” In other words, RCV could undermine an election that only requires a “plurality” to win.

Last month the Republican National Committee also filed a brief with the Maine Supreme Court. This brief, like Frey’s, urges the justices “not to overturn” the 2017 decision. Oral arguments are set for next month.

Maisey Jefferson is a staff editor at The Federalist. She graduated from Gordon College in the greater Boston area with a degree in English and Professional Writing. You can follow her on X at @jeffermaisey.