May 21, 2019
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Maine courts were right to clear way for using ranked-choice voting in June

George Danby | BDN
George Danby | BDN

Maine courts worked overtime in recent weeks to tell opponents of ranked-choice voting what many Mainers already knew: ranked-choice voting in statewide primary elections is lawful, constitutional and ready for its first-in-the-nation debut on June 12.

Both the Maine Supreme Judicial Court and the United States District Court in Maine correctly rebuked recent political arguments presented by ranked-choice voting opponents who desperately sought to stop Maine’s implementation of an alternative voting option that could reduce the political acrimony paralyzing so much of our politics.

The courts rejected those obstruction efforts and wisely recognized that the law should mirror the voters’ intent in the 2016 referendum, giving Maine the opportunity to demonstrate to the nation the positive benefits of a ranked-choice primary election.

But, in its affirmation of Maine’s ranked-choice voting laws, the Maine Supreme Court’s true wisdom was shown in its refusal to referee political fight between Republicans and Democrats seated in dueling branches of government.

Historically, legislators have not shied away from overriding or amending citizen initiatives they disliked. The Legislature has the power to either amend citizen initiatives, as it has with the marijuana initiative, or to wholly override them, as it did with the 3 percent surtax for education. But that mighty power is available to the Legislature only where it has the votes. That means a majority of legislators in both the House of Representatives and the Senate.

In this case, where Senate Republicans lacked enough votes to stop ranked-choice voting before the June 12 primaries, they instead asked the Maine Supreme Court to intervene in their political fight against the voting system.

When the Senate filed its action on ranked-choice voting, the Kennebec Superior Court had already ruled that the people’s veto reinstating ranked-choice voting for the June primaries effectively overrode pre-existing laws that may inadvertently conflict with it.

The Senate, steered by a Republican majority, piled on the ranked-choice voting issue to ask the courts whether the secretary of state had the right to spend his elections budget on a ranked-choice election and had authority to make the arrangements necessary to efficiently tabulate elections results.

The Supreme Court’s thoughtful conclusion was to stand down where a branch of government has the power to stand up for itself. “The separation of powers doctrine precludes us from entertaining this request by the Senate for the Court to assume any role in supervising the legislatively delegated tasks of the Secretary of State,” the court explained.

In other words: If the Legislature is unhappy with the secretary of state’s implementation of ranked-choice voting, the full Legislature has the power to change the law. If a minority group of Senate Republicans lacks the votes to change the law, the courts cannot take the reins and do it for them.

The state Supreme Court’s opinion on ranked-choice voting draws a clear line. The court will hear questions from legislators about the proper interpretation of existing law, but it will not take action to defend a branch of government where that branch is otherwise equipped to protect itself.

Reaching this conclusion, the court steered Maine away from a slippery slope where political minorities in government, unhappy with the opposing ideological policies of another branch of government, routinely turn to the courts to pick the winners and losers.

The Supreme Court’s decision on the ranked-choice voting case bolstered that basic tenant of government that voters rightfully pick the political winners and losers, not the courts.

James Monteleone is an attorney at the Portland-based law firm Bernstein Shur who represented ranked-choice voting supporters before the Maine Supreme Judicial Court. He works in matters involving constitutional and real estate law. You can reach him at jmonteleone@bernsteinshur.com.

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