With hints of a constitutional crisis coloring floor speeches, the Maine Senate spent hours Monday debating whether to give Senate President Mike Thibodeau broad legal discretion to challenge the implementation of ranked-choice voting in the June 12 primary election.
The Senate voted 21-13 shortly after 7:30 p.m. Monday in favor of an amended version of the order that somewhat curtailed what some Democrats had argued was far too much power for one person to wield. An amendment that set a 21-day time limit on the order and restricted it to issues involving only ranked-choice voting won majority support and the votes of three Democrats.
According to testimony in the Senate, among other things the order clears the way for Thibodeau to file as an intervener in a pending Kennebec County Superior Court case that could decide the short-term fate of ranked-choice voting. A ruling in that case could come as early as Tuesday.
The lengthy resolution — clearly written from an anti-ranked choice point of view — gives the Senate president the authority to hire attorneys and “raise all appropriate claims and defenses and to seek all appropriate manner of relief.”
The document lists arguments against ranked-choice voting, ranging from questions about its constitutionality to the fact that additional money needed to implement the system over the long term has not been appropriated. It also calls into question Maine Secretary of State Matthew Dunlap’s authority to ask law enforcement officers to collect ballots from municipalities all over Maine and transport them to Augusta.
Consideration of the resolution comes as a Superior Court judge mulls a lawsuit seeking to force the state to use ranked-choice voting in June. The lawsuit was filed by ranked-choice voting supporters in an effort to force the state to implement the system in time for the primaries.
Senate Minority Leader Troy Jackson, D-Allagash, attempted an amendment that would have required a two-thirds Senate vote for Thibodeau to take action, but the amendment failed.
Sen. Shenna Bellows, D-Manchester, wasn’t swayed by the amendment, and voted against the bill because she said it would be “unprecedented” for the Senate to take legal action against a constitutional officer.
“That’s not usually something that happens in America,” said Bellows. “It’s something we more often see in a banana republic.”
Sen. Andre Cushing, R-Newport, said there aren’t other options, given the time crunch and political divisions in the Legislature.
“We are faced with a dilemma for which we don’t have an agreement in this body, much less in the executive branch,” said Cushing.
The ranked-choice voting system, enacted by referendum in 2016, has become increasingly embroiled in controversy and since Thursday, questions have been swirling about whether it will hold up to a legal challenge by any candidate who loses the election.
On Thursday, Dunlap told lawmakers and reporters that a legislative committee analyst had discovered conflicts in existing law. One section of law says primary elections are won by plurality, while another section of law that was amended by the 2016 referendum refers to winners by majority.
The issue landed in Kennebec County Superior Court on Friday, with lawyers for both Dunlap’s office and supporters of ranked-choice voting agreeing that the intent of the legislation is to use ranked-choice voting. That could clear the way for Justice Michaela Murphy, who is still considering the arguments, to rule that legislative intent is clear and that the older language about a plurality be changed.
But Murphy said such a move by the courts would be rare and that “you are asking me to do something courts don’t like to do.” Murphy said she is making her decision in this case a priority but didn’t indicate when her ruling might be ready.
An attorney representing the secretary of state’s office said the decision is necessary in the next week or two to allow staff to design and print ballots for absentee voters overseas.
This isn’t the first time the issue has been to court. In 2017, the Senate asked the Maine Supreme Judicial Court to weigh in on the constitutionality of ranked-choice voting. The court responded with an advisory opinion — and not a full-fledged ruling — that the referendum was partially unconstitutional because of language referencing winners by plurality in the Maine Constitution.
The other option for clearing up the matter would be legislative action, but with most Republicans firmly against the use of ranked-choice voting, the prospects for success on that front are slim.
As the judicial branch sorts through more immediate problems, the long-term fate of ranked-choice voting could hinge on another referendum in June that seeks to nullify a bill passed last year by the Legislature that delays its implementation until the Maine Constitution is amended.
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