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AUGUSTA, Maine — Maine’s high court said Tuesday that the state’s first-in-the-nation ranked-choice voting system is unconstitutional, throwing the voter-approved law into jeopardy ahead of the key 2018 campaign when it was supposed to be implemented.
In a unanimous, 44-page opinion issued Tuesday, the Maine Supreme Judicial Court’s seven justices agreed with Attorney General Janet Mills, Secretary of State Matthew Dunlap and Republican legislators that the system violates a provision of the Maine Constitution that allows elections to be won by pluralities — and not necessarily majorities — of votes.
But Maine’s history of plurality elections that colored the referendum approved by 52 percent of voters in 2016 and the non-binding opinion from the high court casts doubt that Maine will pioneer the change in its gubernatorial, congressional and legislative elections.
Gov. Paul LePage was elected with pluralities in 2010 and 2014, though his Democratic predecessor, John Baldacci, also never won the governor’s office with a majority. If a ranked-choice system were in place in 2010, a Bangor Daily News simulation found that independent Eliot Cutler would have been favored to win.
The Legislature and Dunlap’s office haven’t moved to implement the law amid the uncertainty around its legality. Now the Legislature will be under pressure either to throw out the law or amend the Constitution to allow it.
Senate President Mike Thibodeau, R-Winterport, leaned toward tossing the law on Tuesday, while Sen. Catherine Breen, D-Falmouth, announced she would propose a constitutional amendment to allow it.
Both of those moves would require bipartisan agreement, though a constitutional amendment would be more difficult, needing the approval of a legislative panel, two-thirds votes in each legislative chamber and a statewide vote to ratify the amendment that Republicans can block.
Thibodeau told reporters there likely wouldn’t be enough votes to pass one, also saying that legislators will “have to” change the law and that different elections shouldn’t be conducted in different ways.
“If this is outside of the framework of the Constitution, then we have an obligation to make sure that our elections are conducted in a way that we have clear winners and losers,” he said.
The line from backers of the the law on Tuesday was that the Legislature should move forward to implement the law — at least for federal elections — and Kyle Bailey, the manager of the $2 million campaign that won passage of Question 5 in 2016, said he’d support a constitutional amendment.
He said that Mainers already vote in multiple ways, from the current first-past-the-post to ranked-choice voting in Portland’s mayoral race to picking multiple candidates from a slate in municipal elections.
“Maine people voted yes on Question 5,” Bailey said, “and they darn well expect us to have a better voting system in place next November.
The status of ranked-choice voting has also been one of the key issues looming over Maine’s 2018 gubernatorial race, where the term-limited LePage will be replaced. The University of Virginia’s Center for Politics cited it in April as a reason for calling the Maine race a tossup.
Large fields of Republicans and Democrats are considering running. So far, the two highest profile declared candidates are independent Maine State Treasurer Terry Hayes of Buckfield — who is supported by Cutler — and Democrat Adam Cote of Sanford.
Hayes, who is supported by Cutler, said she’s “in all the way to the end” regardless of ranked-choice voting’s fate. However, she said the Legislature should ready a constitutional amendment to let voters decide.
“I think that the Legislature owes it to their voters to give them the opportunity to either affirm or deny that they would like their Constitution to accommodate this method for electing their leaders,” she said.