December 16, 2018
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Maine Senate asks high court to avert ‘electoral crisis’ over ranked-choice voting

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Justice Andrew M. Mead, third from right, ask a question during a hearing in the Maine Supreme Judicial Court on whether ranked-choice voting can be used in Maine's June 12th primary, Thursday, April 12, 2018, in Portland, Maine.

PORTLAND, Maine — An attorney for the Maine Senate urged the state’s high court on Thursday to avert an “electoral crisis” by ruling on legal issues around a ranked-choice voting system that was supposed to be used in the June primaries, but is now in limbo.

But justices were often skeptical of his arguments, noting the political conflict around the first-in-the-nation system passed by Maine voters in 2016 that lingers in Augusta as the Legislature sits less than a week before they’re scheduled to adjourn for the year.

The Republican-led Maine Senate voted earlier this month to authorize legal action against Secretary of State Matt Dunlap. The move was intended to send several questions about ranked-choice voting to the Maine Supreme Judicial Court, which advised last year that the law is partially unconstitutional.

The fast-moving suit went before the high court for oral arguments a day after Superior Court Justice Michaela Murphy sent it there. Time is short, since Dunlap, a Democrat, has said he needs to design and print ballots to send to overseas absentee voters by as soon as next week.

It also came after Dunlap told lawmakers in late March that wording conflicts in Maine law may stop his office his office from implementing the law for the gubernatorial and congressional primaries in June. That was the plan after supporters filed a people’s veto effort for the same ballot that would nix a law passed last year to delay ranked-choice voting.

On Thursday, Senate attorney Tim Woodcock told justices that the Legislature never gave Dunlap the authority to fund ranked-choice elections under the Constitution and that he may not have authority to enlist state police or private couriers to take ballots to Augusta for ranked-choice tallying.

Murphy also ruled last week that the secretary of state must implement the ranked-choice system in a separate case last week that Dunlap has said he won’t appeal. Assistant Maine Attorney General Phyllis Gardiner, who is representing Dunlap, told the justices on Thursday that the secretary of state’s office has the necessary authority to implement the system.

Justices seemed to take a dim view of some of the Senate’s arguments, noting that ranked-choice voting has become a political issue. All but four Democrats opposed the Senate’s move to sue Dunlap and the Democratic-led House of Representatives isn’t part of the case.

Justice Ellen Gorman asked Woodcock that “if it were truly worried” about legal issues around the new system, the Legislature “could take some action between now and the day of its closing bell” scheduled for April 18 “rather than bringing action on the third branch of government to bring things to a standstill.”

But Woodcock replied that there is “no consensus” in the Legislature, saying that lawmakers want to head off a legal challenge to Maine’s election system after an election is over.

“We have one chamber of the Legislature here who is looking for guidance on this,” he said. “We are trying to get ahead of what we see as a looming electoral crisis.”

In ranked-choice elections, voters choose multiple candidates in order of their preference. If no candidate garners more than 50 percent of the total vote, the last-place finisher is eliminated and the second choices of voters who cast ballots for that candidate are used in a retabulation. The process repeats until a winner emerges with a majority of the votes.

The court has several options, including striking down the ranked-choice voting law, upholding it, flagging certain constitutional issues or refusing to rule. It’s unclear when the high court will make its final decision.

For a roundup of Maine political news, click here for the Daily Brief. Click here to get Maine’s only newsletter on state politics via email on weekday mornings.

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