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Maine’s high court hears arguments on citizen’s veto of ranked-choice voting

Dieter Bradbury :: Press Herald


Maine’s high court hears arguments on citizen’s veto of ranked-choice voting

The state's Supreme Judicial Court heard from opposing lawyers in a case that will determine if a ranked-choice system will be used to award Maine's four Electoral College votes in the November presidential election.

Opposing attorneys in a case that will decide whether Maine uses a ranked-choice system to award its four Electoral College votes in the Nov. 3 presidential election were back before the state’s Supreme Judicial Court Tuesday.

The court heard oral arguments in an appeal of a Cumberland County Superior Court justice’s decision that would have allowed a citizen’s veto question of a 2019 state law that extends Maine’s first-in-the-nation ranked choice system to presidential elections to appear on the November ballot.

The case is important in the November presidential election because it could have an impact on how the state’s Electoral College votes are awarded.

Republicans have staunchly opposed rank-choice voting, and they circulated petitions statewide to force a referendum on overturning a law that applies the ranked-choice system to presidential elections in Maine, beginning this year.

But the drive to hold a referendum, known as a people’s veto, was derailed when Secretary of State Matt Dunlap disqualified more than 1,000 voter signatures on the petitions on procedural and legal grounds. Dunlap’s move left petitioners short of the 63,067 signatures needed to qualify for the ballot.

At issue in the court case is whether some of the people circulating petitions for the veto question were qualified to do so and whether the state’s requirement that they be registered voters in the town where they live is an infringement on their rights to free speech under the U.S. Constitution.

Patrick Strawbridge, an attorney for the group of voters who signed the petition, argued that Maine’s requirement imposed an unacceptable burden on those rights.

The circulators in question did register to vote in their towns of residence prior to turning in their petitions to the state, Strawbridge said.

Asked by the justices why registering to vote in their towns was too burdensome before collecting signatures but not too burdensome after, Strawbridge said that was in part due to Maine’s well-known and liberal voter registration laws.

He said because Maine allows voters to register on the day of an election, residents tend not to be too concerned about updating their registration if they change addresses. “They will always have the opportunity to do that at the polls on the morning of the election,” he said.

Strawbridge said the only time a voter had to be cognizant of whether they were properly registered to vote was if they were circulating petitions.

But Acting Chief Justice Andrew Mead pushed back. “The petition-gathering drive people have the statute, they have the law there. There is no burden in registering. You go down to your town office, you fill out a two-side card. There’s no burden to that at all.”

Also responding to the argument was Maine Assistant Attorney General Phyllis Gardiner, who was representing Dunlap’s office in the case.

Gardiner said the burden question was never before the lower court, but if it were the evidence would show the petition drive had no difficulty in finding eligible, registered voters to circulate petitions, and the petition’s sponsors did not contest the requirement.

“That’s been our argument all along,” Gardiner told Mead, “that these petitioners did not present this constitutional challenge, it was not litigated, there was no factual development to assess burden.”

In August Cumberland County Superior Court Justice Thomas McKeon overturned a determination by Dunlap that a number of the signatures on petitions were invalid because they were collected by people who were not registered to vote in the towns where they lived, as required by the state constitution.

But McKeon determined the state’s constitution doesn’t require so-called petition circulators to be registered voters until they turn their petitions into the Secretary of State. Dunlap appealed McKeon’s ruling, resulting in Tuesday’s proceeding.

The Committee for Ranked Choice Voting is also appealing McKeon’s ruling on similar grounds as Dunlap. James Monteleone, an attorney for the committee, also addressed the Law Court on Tuesday. Among other points, Monteone said the court should reject the argument that signatures from circulators who were registered to vote, but not registered in their town of residence at the time they were collecting signatures, should be allowed to stand.

“Failure to update that locality of registration, in effect, means a voter is no longer actively registered,” Monteleone said. “Although they may have believed they were Maine voters, there is no such thing as a Maine voter, there is only a voter in a municipality and once they move that registration is gone.”

The people’s veto question would only apply to presidential elections and does not stop the use of ranked-choice voting in congressional primaries and general elections, or in primaries for the Legislature or the governor’s office, when there are more than two candidates appearing on the ballot.

The Supreme Judicial Court will have until Sept. 24 to make its decision but Mead said Tuesday it would expedite its ruling.

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