As a longtime student of the Maine Constitution, I have been following closely the questions submitted last month by the Maine Senate to the Maine Supreme Judicial Court, asking the justices to opine on the constitutionality of Maine’s ranked-choice voting law.
In my view, Maine does not permit the justices to offer an advisory opinion on ranked-choice voting now that it is on the books. I do believe, however, that ranked-choice voting is constitutional. I will briefly explain why I believe that it comports with the state Constitution, with reference to the three questions posed by the Senate.
Question 1: Does ranked-choice voting violate the “sort, count, declare” provisions in the Maine Constitution?
The Maine Constitution does not restrict the method of aggregating and tabulating votes, as long as the municipalities are not deprived of their initial functions of receiving, sorting, counting and listing the votes for the offices of governor, state Senate and state House of Representatives in general elections. Nothing in the ranked-choice voting law approved last November takes away this municipal function. Rather, it changes the method of casting and tabulating votes by instituting ranked-choice voting.
Question 2: Does ranked-choice voting violate the “plurality provisions” in Maine’s Constitution?
Opponents of ranked-choice voting claim that it conflicts with the Maine Constitution’s references to election by a “plurality” of the votes. This claim would be tenable only if the term “plurality” was assigned specialized meanings not found in the Constitution.
The term “ plurality” was inserted into the Constitution in order to eliminate the need for multiple elections and prevent the Legislature from selecting winners when no candidate received an outright majority. The focus of these amendments was strictly on the percentage of votes needed to win an election, not on the type of voting system.
The Maine Constitution does not specify any particular voting system or method. Ranked-choice voting does require successful candidates to receive a plurality, as opposed to a majority, of all the votes as cast and determined under the rules of that system. Ranked-choice voting is clear that at the end of the tabulation process “the candidate with the most votes in the final round is elected.”
Question 3: Does ranked-choice voting violate the provision in the Maine Constitution for breaking a tie in a gubernatorial election?
There has never been a tied election for governor, and, statistically, the chance of such a tie occurring in the future is virtually nil. Should such a wondrous event occur, however, and if ranked-choice voting and Maine’s supreme law were deemed in conflict, ranked-choice voting would have to be read as containing an implicit exception for ties for governor.
Careful analysis of Maine’s Constitution and its amendments, review of legislative records election history, and research on past opinions of the justices leads me to conclude that ranked-choice voting is fully constitutional. Maine’s Constitution does not specify any particular voting system or method. It does not prescribe how votes are to be sorted and counted. More significantly, it does not specify how the data is to be tabulated or who may perform the tabulations. Those who argue that ranked-choice voting conflicts with the Constitution seem to be reading things into it that simply are not in the text.
We — the people of Maine — have the right to direct democracy. We exercised that right when we proposed and approved ranked-choice voting as a better system for electing our leaders. Unless a voting procedure is expressly banned by our Constitution, it should not be construed as inhibiting attempts to improve the electoral system.
Marshall Tinkle is the author of the reference book “The Maine State Constitution” and a number of law review articles on state constitutional law. He practices law in Portland.