Poliquin vows to push forward with his legal challenge to ranked-choice voting after loss

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Ballots are prepared to be tabulated for Maine's 2nd Congressional District's House election Monday in Augusta. The election is the first congressional race in American history to be decided by the ranked-choice voting method that allows second choices.
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U.S. District Judge Lance Walker’s ruling came about 90 minutes before Dunlap’s office was expected to determine the winner of the Nov. 6 election.
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U.S. Rep. Bruce Poliquin said Thursday afternoon he plans to go forward with a lawsuit challenging the constitutionality of ranked-choice voting after he lost his re-election bid to Democrat Jared Golden following Thursday’s ranked-choice tabulation.

“It is now officially clear I won the constitutional ‘one-person, one-vote’ first choice election on Election Day that has been used in Maine for more than 100 years,” Poliquin, a Republican, said. “We will proceed with our constitutional concerns about the rank vote algorithm.”

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A federal judge earlier Thursday denied Poliquin’s motion to stop the tabulation of ballots in the ranked-choice vote to determine who would represent the 2nd Congressional District in the U.S. House. But the judge allowed the underlying lawsuit to go forward in a 16-page ruling that touched on some of Poliquin’s constitutional objections to ranked-choice voting.

In addition to logging constitutional objections, the two-term representative and three supporters sued Maine Secretary of State Matt Dunlap on Tuesday to stop the ranked-choice ballot count and declare him the winner in his re-election contest against Golden.

Following the ranked-choice tabulation, Golden won the election with 50.53 percent of the vote to Poliquin’s 49.47 percent, Dunlap announced at about 12:30 p.m Thursday, two hours after U.S. District Court Judge Lance Walker issued his decision.

“In denying plaintiffs’ motion for temporary restraining order, I do not discount the sincerity of their complaints regarding the RCV system,” Walker wrote. “The remedy in a democracy, when no constitutional infirmity appears likely, is to exercise the protected rights of speech and association granted by the First Amendment to persuade one’s fellow citizens of the correctness of one’s position and to petition the political branch to change the law.

“As it stands, the citizens of Maine have rejected the policy arguments plaintiffs advance against RCV. Maine voters cast their ballots in reliance on the RCV system,” he continued. “For the reasons indicated above, I am not persuaded that the United States Constitution compels the Court to interfere with this most sacred expression of democratic will by enjoining the ballot-counting process and declaring Representative Poliquin the victor.”

[Read Judge Walker’s decision to continue with ranked-choice count]

In a statement issued after Golden was declared the winner, Dunlap said he welcomed a court review of the ranked-choice voting process.

“I have always said that litigation provides important judicial review of the administrative work in elections, and this case is no different,” he said. “Every Maine citizen can rest easy that the checks and balances provided by separate branches of government are as meaningful now as they were at the ratification of our Constitution.

“As the court contemplates the legal framework of our elections, we as election administrators bend to the work of making manifest the reckoning of the voters as expressed on Election Day,” Dunlap continued. “The expression of the will of the people is only bolstered by the work of the judicial branch, and we are grateful to the legal teams on all sides for their expertise and close attention to this matter going forward.”

Walker presided over a 2 1/2-hour hearing in federal court in Bangor on Wednesday morning in which lawyers representing Poliquin, two of his challengers — Golden and independent candidate Tiffany Bond — and Dunlap presented their legal arguments.

None of the candidates nor Dunlap attended the hearing.

Poliquin’s 25-page complaint argued that ranked-choice voting violates the U.S. Constitution’s guarantees to due process and equal protection and the Voting Rights Act of 1965. No court has specifically addressed those arguments, but last year, the Maine Supreme Judicial Court said the method ran afoul of the Maine Constitution as it pertained to statewide general elections, though it cleared the way for ranked-choice voting in the June primaries and didn’t address the method’s use in federal elections.

Walker found that if he were to declare Poliquin the winner, “there are many who would consider the cure to be worse than the alleged disease, at least insofar as the professed concern is with the right of voters to cast effective ballots in a fair election. … Moreover, for this court to change the rules of the election, after the votes have been cast, could well offend due process.”

The judge also rejected arguments that the ranked-choice voting process violates the equal protection clause.

The process “is designed to enable every voter the opportunity to express a preference, and be counted, with respect to the candidates most likely to win the election,” Walker wrote. “Plaintiffs, it seems, have expressed their preference fully and equally on that matter. They have not demonstrated disparate treatment, let alone a discriminatory intent. The RCV Act, after all is party-blind.”

Walker also found that the U.S. Constitution “affords the states sufficient leeway to experiment with the election process….” The judge also found that the Voting Rights Act did not apply to Poliquin’s motion for a temporary restraining order because the congressman’s attorneys had “not demonstrated that the RCV Act, or [Dunlap’s] implementation of the RCV Act, are infected with discriminatory intent.”

To issue an injunction and order ballot counting to stop, Walker had to have found that: the plaintiffs were likely to succeed on the merits of the case; the plaintiffs likely would suffer irreparable harm if the injunction was not granted; the plaintiffs would be more harmed than the defendants if an order was issued; and it was in the public interest to issue the order.

Walker found that Poliquin’s attorneys had failed on all four conditions required to halt the ballot counting process.

“Even if I concluded that plaintiffs had demonstrated a likelihood of success, I would be inclined to deny the request for a restraining order because I am not persuaded that the public is not entitled to know the result of the election conducted pursuant to the RCV system…,” the judge wrote.

Bond said in a statement congratulating Golden that Walker’s ruling affirmed “what the voters in Maine have been saying for a long time: We want options for our congressional candidates, and we want to be able to take a chance on supporting independent voices without being stuck to the two major parties, which don’t work for a lot of us.”

Attorneys for Golden did not immediately return requests for comment.


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