December 10, 2018
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Poliquin’s legal team takes a new jab at ranked-choice voting

Gabor Degre | BDN
Gabor Degre | BDN
Lee Goodman is the lead attorney representing U.S. Representative Bruce Poliquin and other Mainers in a lawsuit challanging the Ranked Choice voting system.

Republican U.S. Rep. Bruce Poliquin, whose legal claims against the constitutionality of ranked-choice voting will be heard in federal court Wednesday, argued in a brief filed earlier this week that the RCV process creates a “faux majority.”

It’s the latest legal argument put forth by the embattled two-term incumbent in his attempt during the past month to poke legal holes in the ranked-choice voting process, approved by voters in 2016, after he lost his 2nd Congressional District re-election bid to Democrat Jared Golden.

Poliquin garnered about 2,000 more first-choice votes on Election Day but was not declared the winner because he did not receive more than 50 percent of the vote, triggering a second ballot tally under Maine’s ranked-choice voting law that handed Golden the victory.

But not because Golden earned a majority, Poliquin’s attorney Lee Goodman argued in the Dec. 2 brief.

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If the more than 8,200 exhausted ballots cast for independent candidates Tiffany Bond or Will Hoar had not been discarded after the first round of counting, shrinking the pool of total applicable votes, Golden would have won with a 49.1 percent plurality, not a majority, Goodman argues.

A key premise of ranked-choice voting is that it produces a majority winner through one or more “instant runoffs” that retabulate ballots after candidates with the lowest vote totals are eliminated and the second or third choices of people who voted for them are reallocated to remaining candidates. Goodman argues that was not the case in the 2nd District.

“It necessarily follows that Bruce Poliquin, who earned a plurality on the first round, should have been declared the winner of this election,” Goodman wrote, adding that the majority that gave Golden the win was fake.

“I suppose it’s a fake majority, but it’s also all that’s required,” University of Maine law professor Dmitry Bam said, adding that in the final round of tallying in a ranked-choice contest, the winning candidate does not have to receive a majority to win. Ultimately, he said, RCV is “still a plurality system.”

Poliquin filed a lawsuit against Secretary of State Matt Dunlap’s office following Election Day, after it became clear that he would not be announced the immediate winner.

Refusing to accept the ranked-choice results, Poliquin has since asked for a recount and for a new election if U.S. District Court Judge Lance Walker does not declare him the winner. Walker will begin hearing arguments for the case Wednesday morning in Bangor, and the recount will begin Thursday.

In its latest brief, as a way to right the unconstitutionality of the election, the legal team representing Poliquin and three other Mainers proposed the following: an injunction against determining the ranked-choice winner, an injunction to declare him as winner based on first-choice votes, or an order to conduct a new or runoff election.

Arguing that ranked-choice voting is “less orderly and reliable” than a plurality election, Poliquin has also asked for a delay in certifying the recount results until Walker grants a decision on his constitutional claims.

Goodman argues that the ranked-choice process requires voters to “guess” which candidates are most likely to compete in a runoff, since it’s not known whether a runoff will occur until after ballots are cast and initial results have been tallied. This aspect of ranked-choice voting, Goodman argues, undermines voters’ ability to remain totally informed when casting a ballot, effectively disenfranchising those who guess wrong and violating their due process rights.

For example, ballots cast by the more than 8,000 voters who only selected Bond and/or Hoar were discarded in the first round and exempt from the runoff. By preventing exempt ballots from factoring in the runoff, Goodman says it places more value on some voters’ choices over others.

“The ability to shift one’s vote, on one ballot, from candidate to candidate affords one voter a greater degree and different kind of electoral power than voters who are foreclosed from shifting their votes,” Goodman said.

Poliquin’s legal team goes on to claim that the marginal increase of voters — a little more than 1,000 — who participated in the 2nd District election from 2014 to 2018 is “hardly an endorsement for RCV.”

Multiple claims made by Goodman in the brief assumes the intention of voters when they cast their ballot. For example, he takes on the spoiler argument, which ranked-choice is intended to remedy.

“Presumably, many who vote for ‘spoiler’ candidates wish for their vote to have the spoiler effect,” he said. “If RCV merely nullifies the effect of those votes, this purported state interest actually harms voter choice and nullifies voter expression.”

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