Mainers in the 2nd Congressional District were “voting blind” on Election Day when they cast their ballots using ranked-choice voting, an expert in voting systems testified Wednesday at a hearing on U.S. Rep. Bruce Poliquin’s federal lawsuit to have the results from the Nov. 6 election he lost to Democrat Jared Golden set aside.
The expert from the University of Maryland was the only witness called by Poliquin’s legal team during Wednesday’s arguments in federal court before U.S. District Judge Lance Walker, who said he will issue a ruling next week.
Poliquin’s legal team was arguing that ranked-choice voting, which was used in a general election for the first time last month, vexed voters and that the state should hold a runoff election between Poliquin and Golden in the 2nd District.
“The fundamental defect is that voters are forced to make a guess about who will be left after the first round,” University of Maryland Political Science Professor James Gimpel said of the voting method, in which voters rank their choices numerically, setting up a series of instant runoffs if no candidate wins a majority of first-choice votes.
Under cross-examination, Gimpel said he hadn’t consulted with any Maine voters in concluding that the voting method proved confusing.
Golden won the election with 50.53 percent of the vote to Poliquin’s 49.47 percent following the ranked-choice tabulation by the Maine secretary of state’s office. Poliquin had garnered 46.3 percent of first-choice votes on Election Day to Golden’s 45.6 percent. But because no candidate received a majority of those first-choice votes, the ranked-choice voting process kicked in and the votes from those who had chosen independents Tiffany Bond and Will Hoar were reallocated to Golden and Poliquin. Golden claimed more of those reallocated votes, elevating his vote total above Poliquin’s.
Poliquin sued Secretary of State Matt Dunlap in U.S. District Court in Bangor last month before the ranked-choice voting tabulation was completed. He’s challenged the constitutionality of the process, which Maine voters have endorsed twice.
Walker on Nov. 15 denied Poliquin’s motion to stop the tabulation of ballots in the ranked-choice vote. But the judge allowed the congressman’s underlying lawsuit to go forward, paving the way for Wednesday’s arguments.
The are no legal precedents on which Walker can base his decision. The judge, who was confirmed by the U.S. Senate in October, asked fewer questions Wednesday than he did at a previous hearing. A class from Hermon High School filled the courtroom along with local attorneys, activists and reporters.
Except for the hearing on ranked-choice voting, the federal courthouses in Portland and Bangor were closed Wednesday for the national day of mourning in honor of former President George H.W. Bush.
Gimpel, the University of Maryland professor, prepared a report on which Poliquin’s Washington, D.C., lawyer, Lee Goodman, based his contention that more than 8,200 ballots in which voters only chose independents Bond or Hoar — and no second, third or fourth choices — were discarded. In effect, Goodman argued, the exclusion of those ballots after the first round of counting disenfranchised those voters.
Gimpel said a traditional runoff of the leading candidates allows voters to know exactly who they are voting for. Using the sample 2nd District ballot posted on the secretary of state’s website, Gimpel said he came up with 1,500 possible combinations of rankings.
Under cross-examination by James Kilbreth, representing Golden, Gimpel admitted he has not spoken with any Maine voters to determine whether they found the process confusing. A Bangor Daily News exit poll on Election Day found that 75 percent of voters supported the voting method’s continuation.
Assistant Attorney General Phyllis Gardiner, who represented Dunlap, told Walker on Wednesday that nothing in the legal arguments presented by Poliquin’s attorney has changed since the judge’s rejection last month of the congressman’s request to stop the ranked-choice tabulation.
“Courts don’t change the rules of elections after the fact,” she said. “There is no constitutional right to know who’s going to be in the final found. There is no evidence of voter confusion. Attributing various theories [about that] is all speculative.”
In supporting ranked-choice voting twice at the ballot box, Maine voters decided that one election was preferable to a traditional runoff election, said Bond’s attorney, James Monteleone of Portland.
Poliquin’s 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.
“In denying plaintiffs’ motion for temporary restraining order, I do not discount the sincerity of their complaints regarding the RCV system,” Walker wrote in denying Poliquin’s request. “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.”
Correction: An earlier version of this story misidentified the lawyer who conducted the cross-examination of James Gimpel.