In Maine, ranked-choice voting opens up possibilities (and lawsuits)

by Jessica Piper

On a cold November day, a little more than a week after the midterm elections, the Maine Secretary of State pointed at a spreadsheet projected onto an old-fashioned screen in a cramped, blue-walled office.

“This has been quite an undertaking here,” said Matthew Dunlap, who has overseen dozens of federal elections during his tenure as Secretary.

That spreadsheet was the culmination of an election cycle that can only be described as unusual—or, some would say, revolutionary. Democratic Senate candidate Zak Ringelstein openly encouraged supporters to vote for him, but to be sure to list his incumbent opponent as their second choice. Independent Tiffany Bond, running for a seat in the House of Representatives, refused to take campaign donations throughout the entire election cycle, instead asking her followers to spend their money at local businesses in Maine’s sprawling second district or to donate it to schools.

In most elections, candidates like Ringelstein or Bond would have been decried as potential spoilers, grouped alongside Ralph Nader and the plethora of independent politicians who have been accused of siphoning votes from major candidates. But no one was talking about spoilers in Maine this fall. Instead, the talk was about ranked choice voting: an electoral process which, supporters argue, could break down the partisan divide and open up new possibilities for American elections—assuming that it weathers legal challenges.

Lawsuit after lawsuit

In ranked-choice voting, voters have the option to list candidates by order of preference. In the first round of counting, precincts tally first-place votes for all candidates. If no candidate has achieved a majority—50 percent plus one—then the votes that went to the last-place candidate are re-allocated to each voter’s second-ranked candidate. The process repeats until one candidate has a majority.

Proponents of ranked-choice voting argue that it eliminates voters’ need to choose between the “lesser of two evils” and allows independent candidates to run for office without fear of becoming spoilers. Voters can support a longshot independent candidate without hurting the major-party candidate they support, as their second-place vote will be counted if the election is close. If major-party candidates realize they may need the second-place votes of independent candidates, they might be forced to broaden their appeal to reach more of the electorate.

Detractors tend to argue that the potential benefits of ranked-choice don’t play out in practice, as voters often don’t rank every candidate. In an empirical study of four local elections that used ranked-choice between 2008 and 2011, researchers found that between nine and 27 percent of ballots were exhausted, meaning the voters had not ranked either of the final two candidates. This outcome suggests that a nontrivial proportion of voters either didn’t understand ranked-choice voting or chose not to fully utilize it—and thereby had less sway in the electoral process.

In Maine, many saw ranked-choice voting as a reaction to firebrand Republican governor Paul LePage. LePage was twice elected to the state’s highest office without a majority of the votes, and garnered national attention for his inflammatory comments about the state’s Somali immigrant population, his vow to veto any bill sponsored by a Democrat, and a number of other controversial statements. His antics became so well-known that LePage jokingly bragged in 2016 that he was “Donald Trump before Donald Trump became popular.”

The majority of Mainers had not voted for LePage; in 2010, the Republican received 37.6 percent of the votes, while independent Eliot Cutler received 35.9 percent and Democrat Libby Mitchell came in with 18.8 percent. As an incumbent in 2014, LePage did better, winning 48.2 percent of the vote—still less than a majority. While it can’t be definitively said that ranked-choice would have changed either of these outcomes—retrospectively guessing voters’ second choices is a futile exercise—there is a strong possibility.

Ranked-choice activists were careful not to frame the issue as a response to LePage; they wanted the movement to be nonpartisan. It is worth noting that Maine’s history of three-way races goes back a lot longer than LePage. His predecessor, Democrat John Baldacci, was elected without the majority of votes in both 2002 and 2006. And Angus King, the now-Senator who has long highlighted his credentials as an independent, was elected governor of Maine in 1994 with just 35.4 percent of the vote share, though he did get a majority when he ran as an incumbent in 1998.

Still, LePage was governor when Maine voters approved ranked-choice voting by a small yet decisive margin, 52-48, in November 2016. Its passage was led by the state’s Democrats and independents; LePage and other Republican leaders opposed it, citing constitutional concerns.

The legal challenges came quickly. That following May, Maine’s Supreme Court issued a unanimous advisory saying that ranked-choice voting unconstitutional in general elections for state offices. The state’s constitution mandates that elected officials are chosen “by a plurality of all votes returned.” Plurality was interpreted by all seven justices to mean the most overall votes; under ranked-choice, the candidate with the most first-place votes might not win, so the law couldn’t stand. The judges did not offer an opinion on whether ranked-choice was valid for federal elections.

Still, the outlook for ranked-choice voting didn’t look good. The state legislature has the power to amend the state constitution, but with Democrats in control of the House, Republicans in the majority in the Senate, and LePage in the Blaine House hardly looking to broker a compromise, such an outcome seemed unlikely. Instead, in October 2017, lawmakers passed a different kind of compromise—a bill which delayed the implementation of ranked-choice until 2021, ostensibly to allow for more time for a constitutional amendment, but which would repeal the law at that point if no such amendment was passed.

Activists, however, weren’t done yet. This February, ranked-choice voting supporters submitted 80,000 signatures to the Secretary of State in favor of a “people’s veto,” another referendum on the voting system, to be carried out at the same time as the state’s June primaries. They received another boost in April, when the state Supreme Court ruled that ranked-choice was to be used for both parties’ primaries; disallowing it, the judges unanimously agreed, would be an overstep of the separation of powers.

The state Republican Party sued, arguing it shouldn’t have to abide by ranked-choice for party functions, but the court disagreed. So on June 12, voters on both sides of the aisle participated in the first statewide ranked-choice election in American history.

They also had a chance to vote on the people’s veto, which was—in practice—a confusing and poorly-worded question: “Do you want to reject the parts of a new law that would delay the use of ranked-choice voting in the election of candidates for any state or federal office until 2022, and then retain the method only if the constitution is amended by December 1, 2021, to allow ranked-choice voting for candidates in state elections?”

A yes vote favored ranked-choice voting; a no vote opposed it. And by roughly the same margin as in 2016, Maine voters said yes. Ranked-choice voting remained unconstitutional in elections for state-level offices, but rulings and voter approval paved the way for its use in the federal-level midterm elections. (Though it didn’t happen without a grumble from LePage, who vetoed a bill that would have allocated funding to cover the costs of administering a ranked-choice election.) The Secretary of State’s office drew funding from a variety of sources instead.

The first election

Three federal seats were contested in Maine this fall. The state is divided into two congressional districts, and Senator Angus King, an independent who typically caucuses with Democrats, was also facing re-election.

King had challengers on both sides of the aisle; Ringelstein was the official Democratic nominee, though he had little support from the state party, while state senator Eric Brakey ran on the Republican ticket. Ringelstein openly encouraged his supporters to “vote with your hopes,” but also rank King as their second choice. In previous elections, the state’s liberals might have worried about splitting the left-leaning vote, but, with ranked-choice in play, there was little such concern.

Ringelstein’s mostly self-financed campaign never garnered much momentum, but it did give him an opportunity to push King to the left. In a notable moment during one of the final three-way debates, the Democrat and former teacher challenged the incumbent to stop taking donations from ExxonMobil. King said he would, and few days later, returned previous donations he had received from the oil company.

On election day, ranked-choice voting mattered little. A popular incumbent, King won re-election with a decisive 54 percent of the vote, although some liberal voters said the system freed them to follow Ringelstein’s advice and vote with their hopes.

“I wanted the Maine Democratic party to know that there were Democratic voters out there,” said Jack Ward of Brunswick, who voted for Ringelstein.

In Maine’s liberal first district, Chellie Pingree likewise won reelection with a simple majority, collecting 58.8 percent of votes outright despite facing both independent Marty Grohman and Republican Mark Holbrook.

In the second district—the vast, rural territory that voted for Obama in 2012 and Trump in 2016—it got more complicated. Polls leading up to the election showed a tight battle between incumbent Republican Bruce Poliquin and Democrat Jared Golden, but they weren’t the only candidates in the race. Bond and fellow independent Will Hoar were also running, and polling at a combined roughly eight percent.

A family lawyer, Bond ran an unconventional campaign. She rarely campaigned on weekends, preferring to spend time with her young children, and specifically asked her supporters not to donate to her campaign, but put their money back into Maine’s economy.

It was all possible, she said, because of the state’s new system.

“All the things I hate about politics, I’m wasn’t going to do that,” Bond said. “And I have that freedom because of ranked-choice voting … All I can do is improve the race.”

In the lead-up to November, pundits speculated that Bond and Hoar supporters would likely rank Golden ahead of Poliquin; when the candidates were asked in a debate who they personally planned to rank second, both of the independents indicated that the incumbent Republican was their last choice.

November 6 rolled around, and after the first round of ballots, Poliquin came in with 46.2 percent of votes; Golden won 45.6 percent; Bond got five percent and Hoar 2.4 percent.

Ranked-choice voting was to get its first test. On November 8, dozens of private courier drivers fanned out across northern Maine. Two days later, all of the ballots were collected, and processing began in Augusta, the state capitol and the only site that has the proper technology to count the votes.

There was just one more hiccup; a few days into the counting, Poliquin filed a lawsuit to try to stop it. In a statement, he argued that ranked-choice violated the “one vote per person” system that “has always been the successful system used” for elections in the United States. The official complaint cites Article I, Section II of the Constitution as well as the First and Fourteenth Amendments and the Voting Rights Act, arguing that ranked-choice voting disenfranchises voters who don’t list second- and third-choice options as their ballots are not counted in the final tally if their first-choice candidate is eliminated.

Both Golden and Bond filed motions to intervene in the case.

“I relied on that process, and I think that voters did, too,” Bond said. Ranked-choice voting affected her decision to run in the first place, and she was critical of the lawsuit and Poliquin himself. “Obviously, he’s not an attorney,” she added.

In a public statement, Golden’s campaign manager, Jon Breed, called the lawsuit an “affront to the law and to the people of Maine.”

On Thursday, November 15, two important results were set to be released: Lance Walker, judge for the U.S. District Court of Maine who was appointed by President Trump earlier this year and confirmed just a month ago, was set to rule on Poliquin’s suit, and Dunlap announced his office would be releasing the ranked-choice results.

Walker’s decision came out first, a little before 9 a.m. In a sixteen-page decision, he denied the incumbent Republicans’ motion.

A few hours later, Dunlap stood in front of the projector in the blue-walled room. He first thanked the state employees who carefully tabulated votes under heavy media scrutiny. Deputy Secretary of State Julie Flynn explained the process, and how they would have to use the find and replace function because Golden’s name had been listed as “Golden, Jared F.” in the first position and “Golden Jared F.” in second position, so the Excel spreadsheet was counting it as two separate candidates.

Then they ran the ranked-choice software. Picking up nearly 70 percent of votes in the second round, Golden reached 50.53 percent of total tally. In the same calm fashion that had characterized the previous week’s proceedings, Dunlap declared the Lewiston Democrat the winner.

Poliquin has said he will continue to challenge the constitutionality of ranked-choice voting, and LePage has not guaranteed that he will certify the results. But, two years after Maine voters approved the new election process, it is most likely that a candidate who won because of ranked-choice will be walking the halls of Congress.

Beyond Maine

Though he may be ranked-choice voting’s biggest opponent right now, Bruce Poliquin may actually be doing the system a favor. The now-lame duck congressman has indicated he will pursue his lawsuit in district court, with the next hearing set for Dec. 5. If there is an appeal, the case could be sent to the U.S. First Circuit Court of Appeals, or potentially the U.S. Supreme Court.

If Poliquin wins his case, it would be the death knell for ranked-choice voting. But if he loses—which seems more likely given Walker’s decision last week and the Maine Supreme Court’s earlier this year—a federal court’s approval of ranked-choice voting would seem to open up possibilities for other states to adopt the system.

In California, ranked-choice been raised as a potential alternative to the state’s top-two primary system; San Francisco has been using ranked-choice for its mayoral elections since 2004. In Arizona, former Green Party candidate Angela Green told the New Yorker she hopes her campaign “wakes up everyone to understand why ranked-choice voting is so important.”

The city of Fargo, N.D., approved a related but different system this November. Under “approval voting,” voters simply check all of the candidates they like, and the candidate with the most approval votes wins.

While no one state has appeared as a clear front runner to take up the ranked-choice fight next, there seems to be a sincere interest in alternative voting systems.

In his initial decision denying Poliquin’s motion to suspend the ranked-choice count, Walker wrote, “I am not persuaded that the United States Constitution compels the Court to interfere with this most sacred expression of democratic will.”

Ranked-choice seems to be a part of that sacred expression.

Jessica Piper is a senior from Bowdoin College studying economics and Hispanic studies.

The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.

The cover photo above was taken by Jessica Piper.

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