September 16, 2019
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Dunlap sends election certification to House naming Golden 2nd District winner

Robert F. Bukaty | AP
Robert F. Bukaty | AP
This combination of file photos show U.S. Rep. Bruce Poliquin in 2017, left, and state Rep. Jared Golden in 2018, right, in Maine.

Secretary of State Matthew Dunlap appears to have cleared the way for U.S. Rep.-elect Jared Golden to be sworn in as the congressman representing Maine’s 2nd Congressional District. That could effectively end Rep. Bruce Poliquin’s legal efforts to retain his seat.

In a Tuesday letter to Karen L. Hass, the clerk of the U.S. House of Representatives, Dunlap declared Golden the winner of the Nov. 6 election and enclosed a certificate of election.

The House must receive the certificate before a representative can be sworn in. Typically it is signed by a state’s governor. In Maine, however, the Secretary of State can sign it.

“We presented the governor with a certificate of elections for Jared Golden,” Dunlap said Tuesday. “I haven’t heard anything back about that. The indication I’ve had indirectly is that [House Speaker Nancy] Pelosi would be just as happy with my signature to certify it.”

Gov. Paul LePage’s spokesman said Tuesday he would not sign the certificate due to the pending litigation brought by Poliquin challenging the constitutionality of the ranked-choice voting method used to determine the outcome of the Nov. 6 election and asking for a new election.

Golden is expected to be seated in the U.S. House as part of a new Democratic majority in January after beating Poliquin, who was seeking a third term.

The certificate of election was included with court documents a lawyer for Dunlap filed Wednesday night opposing Poliquin’s appeal of a Maine federal judge’s rejection of his challenge to ranked-choice voting. The Republican congressman’s legal team had asked the 1st U.S. Circuit Court of Appeals in Boston to issue an emergency injunction that mistakenly asked for an order to prevent Dunlap from certifying the election results.

The problem is that Dunlap had already called Golden the winner in the 2nd Congressional District race.

Assistant Attorney General Phyllis Gardiner, who represents Dunlap, said in the court document filed Wednesday that “the certificate of election that the secretary has signed and sent to the House Clerk provides a credential for Representative-elect Golden to present to the House, but it does not determine as a matter of law whether he will be seated by that body.”

Gardiner said Poliquin’s appeal had no merit.

“The election results have already been certified, however,” she said. “Under the U.S. Constitution, it is now up to the United States House of Representatives to determine, when it convenes on Jan. 3, 2019, whether to seat Jared Golden, who is the undisputed winner of the ranked-choice voting tabulation under the RCV Act and thus the Representative-elect for Maine’s Second Congressional District.”

Attorneys for Golden called Poliquin’s effort to retain his seat through legal action “more than a day late and a dollar short.”

“Rather than recognizing that a majority of voters and the district court have now rejected his entreaties, Poliquin throws a ‘Hail Mary’ pass to this court seeking emergency relief,” Golden’s legal team said.

In addition to rejecting the motion for an injunction, the congressman-elect asked the 1st Circuit to affirm U.S. District Judge Lance Walker’s decision in Bangor.

Poliquin’s latest effort to keep his House seat came days after Walker issued a 30-page decision against the congressman in a lawsuit that sought to invalidate the ranked-choice voting process approved by Maine voters in 2016 and again earlier this year. Poliquin requested that Walker call for a new election. The day after Walker’s Dec. 13 ruling, Poliquin called off the recount he had requested, which was already underway in Augusta.

The emergency motion argued that Walker “sidestepped the explicit questions presented, often casting the questions at a more superficial level of analysis.” Poliquin also asked the appeals court to issue a decision by Friday.

Golden’s Lewiston attorneys Peter Brann and Michael Carey disagreed Wednesday. They said Walker “eviscerated all of Poliquin’s arguments on the constitutionality of ranked-choice voting.”

The lawyers also said that Poliquin’s challenge to Maine’s ranked-choice voting system came too late for the appellate court to consider it. They cited a 2008 decision in which a federal judge in Maine ruled “there is no constitutional right to procrastination.”

“At every step of this process, Poliquin has done exactly that: he chose not to act before the election; he did not file in the district court promptly after the election; and he did not file a notice of appeal under days after the district court entered judgment and Poliquin ended his doomed recount,” the attorneys wrote. “The timeline alone demonstrates that Poliquin is not entitled to emergency relief based on his lassitude.”

An attorney for independent candidate Tiffany Bond agreed.

“Appellants are not entitled to emergency consideration for an emergency of their own making,” James Monteleone of Portland wrote. “These constitutional challenges of Maine’s RCV system were ripe to be decided as early as June 2018 — soon after appellant Poliquin won his primary election using RCV. No claim was brought.”

Poliquin and three Republican voters sued Dunlap on Dec. 13 in federal court in Bangor. LePage was added as a defendant two weeks later after Golden and Bond, along with two of her supporters, were granted intervenor status.

LePage’s attorney, Patrick Strawbridge of Boston, filed a response in which the governor took no position on Poliquin’s motion since the governor is leaving office Jan. 2.

“It is the governor’s view that this [ranked-choice voting] process is repugnant to the governing legal principles that each person’s vote be counted in every election, as well as the constitutional guarantees of due process and equal protection,” Strawbridge wrote.

 



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