December 15, 2018
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Nothing about ranked-choice voting infringes on voters’ rights

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Ballots are prepared to be tabulated for Maine's Second Congressional District's House election Monday, Nov. 12, 2018, in Augusta, Maine. The election is the first congressional race in American history to be decided by the ranked-choice voting method that allows second choices. (AP Photo/Robert F. Bukaty)

It seems as though no law in recent Maine history has been more scrutinized than the ranked-choice voting law.

Prior to this week, we have seen four separate legal proceedings related to the law. In 2017, a non-binding “solemn occasion” review by the Maine Supreme Judicial Court led the Legislature to repeal part of the law. The remaining challenges did not invalidate any part of the law.

Now a new lawsuit is aimed at the heart of ranked-choice voting, asking whether the ranking of choices somehow infringes the rights of voters or defies the U.S. Constitution.

Rep. Bruce Poliquin has a right to go to court, but the case is weak. The validity of ranked voting under the U.S. Constitution was affirmed in 2011 by the Ninth Circuit Court of Appeals in Dudum v. Arntz. I am confident the law will be affirmed again in the challenge now pending in Maine.

[Judge aims to announce fate of ranked-choice voting in Maine’s 2nd District on Thursday]

One thing that ranked voting does not change is the fact that each election yields winners and losers. No matter the office sought or the voting system used, some candidates will be disappointed.

It is only human nature for those candidates to push back against the system that did not choose them. And that may be what we have here. This is not really a constitutional issue. It is a high-stakes political battle that one side has to lose, and that side is exhausting all of its options before conceding defeat.

But there is no constitutional principle, federal statute or persuasive court opinion suggesting that ranked voting infringes any right or interest.

In this litigation, opponents claim that the law violates the Voting Rights Act and the longstanding principle of “one person, one vote.”

Ranked voting honors the principle of one person, one vote. Every voter receives the same ballot, and each voter has the same chance to rank candidates. Each voter gets only one vote in each tabulation round, and every voter gets a chance to participate in all rounds. A voter may rank all the candidates or only one candidate. This system increases voters’ choice and expands their power.

[Taking apart the legal arguments on Maine’s ranked-choice voting system]

A voter may rank only one candidate, and if that candidate is the lowest vote-getter, that ballot is no longer counted for subsequent tabulations. But that is the voter’s choice, not a flaw in ranked voting. It is no different than a voter whose candidate loses in the primary and who then decides to stay home for the general election. Elections are decided by the voters who show up and fully participate. And sometimes we vote for a candidate who gets defeated. It happens.

Opponents also claim that voters have a constitutional right to choose their winners by plurality. No such provision exists in the U.S. Constitution, and no court has issued such a ruling. Many states require a majority winner in congressional elections. Mississippi will conduct a run-off election for a U.S. Senate seat in the weeks ahead. Members of the U.S. Armed Services from Mississippi use ranked voting to participate in those run-off elections. Without it, active-duty service members and other overseas voters would be completely shut out of those run-off elections because of the short turnaround time to receive and submit ballots.

There is simply no legal or constitutional basis for Poliquin’s claim that he won the election based on the first round votes. He didn’t get 50 percent — the applicable standard of victory under Maine’s ranked voting law — so he didn’t win the election. It is that simple.

By attempting to stop the counting of votes, opponents want to change the rules in the middle of the game and, as a result, nullify thousands of legitimate votes. People went to the polls on Nov. 6 understanding that ranked voting was the law in Maine. Many people used their opportunity to vote for an independent candidate understanding that their second or third choice would be counted if their first choice was defeated. The tally of first round votes is not proof of what voters might have done under a vote-for-one system. That was not the system in play for this election.

[What you need to know about the judge set to rule on ranked-choice voting]

This is not about Poliquin or his opponent Jared Golden. It is about is the right of the people of Maine to decide to use ranked voting. They have done that twice. It is the law of the land.

When it’s all said and done, voters must be the ones who decide elections. An election decided by changing the rules after all the ballots have been cast is unfair, unconstitutional and, frankly, un-American.

John Brautigam served in the Maine House of Representatives from 2004 to 2008 and is legal counsel for the League of Women Voters of Maine.

 


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