Opponents of Maine's ranked-choice voting system try new tactic after past failures in court
Jessica Piper :: Bangor Daily News
The new lawsuit argues that the system effectively disenfranchises voters who do not rank a second choice...
A worker prepares ballots during the vote tabulation process for Maine's 2nd Congressional District election on Tuesday, Nov. 13, 2018, in Augusta. It was the first congressional election to be decided by ranked-choice voting. Credit: Robert F. Bukaty | AP
AUGUSTA, Maine — Those making a fourth legal challenge in just over two years to Maine’s ranked-choice voting system are using a new lens of equity, but they will have to convince a federal judge that fundamentals have shifted since he tossed a similar suit in 2018.
The new lawsuit — filed in federal court on July 22 — argues that the system effectively disenfranchises voters who do not rank a second choice, either because they are confused or do not want to. It mirrors other unsuccessful ranked choice challenges, but contends that exhausted ballots disproportionately affect older voters and those with lower levels of education.
It will now go before U.S. District Court Judge Lance E. Walker, the same judge who upheld the ranked-choice system after a challenge from former U.S. Rep. Bruce Poliquin in 2018. In the past two years, courts have upheld Maine’s use of the method, though the Legislature reined in a law approved by voters in 2016 after the state’s high court said it was partially unconstitutional .
Support for ranked-choice voting in Maine has generally fallen along partisan lines, with a 2018 exit poll finding that 81 percent of Democrats wanted to expand its use while 72 percent of Republicans wanted to stop using it. In a poll of the 2nd District earlier this year, the majority of Republicans said they did not plan to utilize ranked-choice voting in the party’s congressional primary, though a majority of them ranked at least two candidates.
The new lawsuit on behalf of four plaintiffs reiterates arguments Republicans have made against the method, including that the winner may still end up with a plurality — not a majority — of the original ballots cast since some ballots are exhausted when voters do not rank a second choice. That was the case when Poliquin lost in 2018 to U.S. Rep. Jared Golden, a Democrat from the 2nd District.
But citing analysis from a Princeton University professor, the plaintiffs note that the majority of voters did not rank as many candidates as there were options on the 2018 ballot. It argues that towns with higher shares of older voters and those without college degrees are more likely to truncate ballots.
The suit argues that the age-related disparities violate the 26th Amendment, which protects citizens from having voting rights abridged, and that forcing voters to rank candidates or risk their ballot exhaustion before the final round violates rights to free speech and equal protection.
These arguments might have an uphill battle before Walker given ranked-choice voting’s past success in court. Rick Pildes, a professor at the New York University School of Law who has written about ranked-choice voting, noted that all voters — regardless of age — had the same opportunity to rank candidates.
He said the notion that some voters are confused has not generally been grounds to deem a law unconstitutional.
“In all systems of voting, some voters might choose not to exercise all the votes they have,” Pildes said. “But that has never made a voting system a violation of the U.S. Constitution.”
In 2018, Walker was skeptical of Poliquin’s argument that voters not indicating a second or third choice was a sign of disenfranchisement. In his ruling, he also noted that arguing that a portion of voters could not understand ranked-choice voting was similar to arguments advanced in order to deny voting rights to women and minorities and “falls short of constitutional impropriety.”
Ranked-choice laws in other states have also generally been upheld in the face of similar challenges. In San Francisco, which adopted ranked-choice voting for local elections in 2002, the city faced a challenge over a provision that only let voters rank up to three choices regardless of the number of candidates, with plaintiffs arguing that voters were deprived of their rights when their ballots were exhausted after three rounds.
But a federal judge sided against the plaintiffs in that case, allowing the law to remain. A federal appeals court later upheld the ruling, saying the burdens imposed by the city’s ranked-choice system on voters’ rights were “minimal at best.”
Other unsuccessful challenges to ranked-choice voting in Maine have largely been on administrative grounds. After the Maine Supreme Judicial Court issued an advisory opinion in 2017 saying that ranked-choice seemed to be unconstitutional for state general election races, Republicans in the Maine Senate sued to challenge whether Secretary of State Matt Dunlap could use unallocated funds to administer the new system.
The state’s highest court ruled in Dunlap’s favor in the spring of 2018. Shortly thereafter, the Maine Republican Party sued in federal court arguing that they should not be required to use ranked-choice voting in party primaries. That suit failed as well.
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