December 12, 2018
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New court fight erupts over ranked-choice voting in Maine

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Kyle Bailey, campaign manager for the Committee for Ranked Choice Voting, speaks at a rally of supporters of ranked choice voting, Friday, Feb. 2, 2018, at the State House in Augusta, Maine.

AUGUSTA, Maine — A Maine judge ordered Secretary of State Matthew Dunlap to move forward with the implementation of ranked-choice voting in the June primaries, but the issue was back in court on Wednesday and could soon go to the state’s high court.

Superior Court Justice Michaela Murphy’s decision, released Wednesday, was a win for supporters of ranked-choice voting, which has been fraught with constitutional and other legal issues since Maine voters approved the system in 2016.

But Murphy also said in response to a separate Tuesday filing by the Republican-led Maine Senate that there are “significant constitutional issues which deserve expedited review by the Maine Supreme Judicial Court” because of the June 12 primary election.

The issue has been a partisan one in Augusta. All but four Democrats voted Monday against the Republican-led order allowing the Senate to go to court. Democrats have bemoaned Republicans’ reluctance to implement the law, and made a new push Wednesday to seek a legislative fix.

However, the order’s supporters said their move isn’t political and is aimed at avoiding a scenario in which the loser of a June election could sue over the outcome, throwing an election’s result into chaos.

“If we don’t have confidence in how our elections are conducted, we’ll lose confidence in the whole system,” said Sen. Roger Katz, R-Augusta, who is helping lead his chamber’s effort to send the case to the high court.

This path began last year, when the Maine Supreme Judicial Court said ranked-choice voting was partially unconstitutional. New legal issues were discovered last week that pushed ranked-choice voting into limbo.

Last year’s nonbinding high court opinion led the Legislature to pass a bill delaying implementation until 2021 unless lawmakers passed an amendment to the part of the Maine Constitution that says pluralities — and not necessarily majorities — are sufficient to win a state-level general election.

But the Committee for Ranked Choice Voting, which got the referendum passed, launched a people’s veto effort to nix the law. That veto question will be on the June ballot as well. After that, lawmakers and election officials operated under the assumption that ranked-choice voting would be used for gubernatorial and congressional primaries in June.

Things got more complicated last week, when Dunlap roiled the State House by flagging legal wording conflicts that the Democrat said could keep his office from implementing the law before the June election unless the Legislature or the court system makes changes.

By then, a case was already before Murphy in Kennebec County Superior Court. The Committee for Ranked Choice Voting sued Dunlap in February alongside Democratic candidates in an effort to ensure that the system is implemented by June — a tight deadline for the state.

After Dunlap made his announcement last week that there were legal issues, attorneys rushed into court on Friday as part of that case. The state and ranked-choice voting supporters agreed that the intent of Maine voters was for the system to be used in the June primaries.

During that hearing, Murphy seemed uncomfortable with her key position in implementing or not implementing the law, saying at one point that “you are asking me to do something courts don’t like to do” and hinting that if there are issues, the Legislature should fix them.

In her Wednesday decision, Murphy said “uncertainty that halting the ranked-choice voting implementation process at this late date is significant” and that “clarity, stability and public confidence are essential to ensure the legitimacy of Maine elections.”

But the Senate filed a temporary restraining order late Tuesday. Its concerns include whether current funding can be used to implement ranked-choice voting and whether the secretary of state has the authority to order the Department of Public Safety to transport ballots from municipalities to Augusta for counting.

In response, Murphy asked attorneys to meet at the Capital Judicial Center on Wednesday, where the judge appeared to be steering Tim Woodcock, the attorney for the Senate, and Assistant Maine Attorney General Phyllis Gardiner, who is representing Dunlap, toward a resolution that could send constitutional questions to the high court by next week.

Democrats have also launched a last-ditch attempt to solve problems with the law. Senate Minority Leader Troy Jackson, D-Allagash, said the Senate on Thursday will consider a joint order that directs the Legislature’s Veterans and Legal Affairs Committee to report out a bill that fixes the problems.

“This is actually our fourth or fifth attempt to do this,” Jackson said. “This whole thing has gone completely out of control.”

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