July 20, 2018
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Maine judge faces tight deadline to rule on latest ranked-choice voting glitch

Robert F. Bukaty | AP
Robert F. Bukaty | AP
File photo of Kyle Bailey, campaign manager for the Committee for Ranked Choice Voting, speaking at a rally of supporters of ranked choice voting on Friday, Feb. 2, 2018, at the State House in Augusta, Maine. The group delivered petitions aimed at thwarting a legislative delay and putting the voting system into place for state primaries in June.
By Christopher Cousins, BDN Staff
Updated:

A Maine Superior Court justice — who said Friday afternoon that “you are asking me to do something courts don’t like to do” — will likely make the next key decision about whether ranked-choice voting will be used in the June primary election.

Justice Michaela Murphy heard testimony Friday afternoon from attorneys for the Maine secretary of state and the Committee for Ranked Choice Voting on a matter that has been simmering between November 2016 when a referendum created ranked-choice voting in Maine and Wednesday of this week, when conflicts were discovered in different sections of Maine law.

At issue is language in one place that says primary elections should be decided by a plurality — in other words whoever receives the most votes — and another section that says elections should be decided by a majority, as ranked-choice voting is supposed to do.

Meanwhile, the elections division of the secretary of state’s office is scrambling to prepare for the June primaries by designing and printing ballots without knowing which method will be used.

Assistant Attorney General Phyllis Gardner, representing Secretary of State Matthew Dunlap, and attorney James Monteleone, who represents ranked-choice supporters, said their clients agree that the intent of the citizen-initiated legislation, and by extension the voters, was and is that ranked-choice voting should be used in this June’s primary.

Asked when the elections division’s deadline is, Gardiner told Murphy “within the next 10 days to two weeks,” which provides a little more time than Dunlap did when he said Thursday that the issue had to be resolved by Monday.

“I think the secretary of state would say ‘as soon as possible,’” said Gardner. “I think there is a little more breathing room than Monday.”

Ballots must be available on April 27 to allow overseas voters 45 days to cast absentee ballots for the June 12 primary.

A citizen-initiated petition led to a 2016 referendum in which Maine voters approved use of the ranked-choice system, but the Legislature enacted a law in 2017 that called for an amendment to the Maine Constitution before the system could be used. Under that law, if that didn’t happen by December 2021, the ranked-choice voting system would be nullified.

However, supporters of ranked-choice voting launched a people’s veto petition of the Legislature’s law, which was certified as valid by Dunlap in March. That petition forces a question on the June ballot asking whether voters want to cancel the Legislature’s law and put ranked-choice voting in place immediately and for the long term.

Murphy said she would issue a written decision in the case in the coming days and would prioritize the issue in light of the impending election. One of her options is ordering an “implied repeal” of plurality language in Maine Revised Statutes, Title 21A, Section 723.

Despite the agreement between the parties about what the outcome should be, Murphy cast doubt on whether it is within the court’s authority to grant their wishes.

“The law court highly disfavors the judicial branch using this doctrine because the expectation is, if there was a mistake or oversight or something like that, that’s something the Legislature needs to fix because nobody elected us,” Murphy said. “The doctrine is to be used very sparingly and if there is anything to be fixed, it should be fixed by the Legislature.”

Given the makeup of power in the Legislature, and Republicans’ staunch opposition to ranked-choice voting, it’s unlikely any legislation that preserves it would be successful. Regardless, Attorney General Janet Mills said Thursday that her office is preparing a bill to make Maine’s election laws clearer.

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