Beware of Unconstitutional Claims on Maine’s Ranked Choice Voting

Mainers face an important choice on Question 5 on November 8 — whether to support ranked-choice voting to restore majority outcomes for electing its leaders, or not. I’ve noticed that opponents of ranked choice will make their case, and then add “and besides, it’s unconstitutional.” For some opponents, that’s their only argument.

A closer look at Maine’s election history reveals that majorities were initially constitutionally required to be elected governor or to Maine’s legislature. In the event that a majority was not reached, there were various contingencies, which included “rematch” elections and legislature-determined outcomes.

With many three-way races (to Mainers, this will sound very familiar), the backup plans to achieve a majority proved too cumbersome and contentious. Changes to the constitution happened in 1847 and 1875 for Maine’s House and Senate, respectively, to accept a plurality result (most votes wins even if not a majority). More memorably, a contentious three-way election for governor in 1879 brought Civil War hero Joshua Chamberlain to Augusta to mediate. With a constitutional amendment in 1880 regarding the governor’s election, a plurality of votes was now acceptable across the board to elect Maine’s leaders.

It is important to consider today that Maine’s leaders of the 1800s weren’t saying they didn’t want majority outcomes; rather, they were conceding that they had to tolerate electing leaders with merely a plurality.

A closer look at Maine’s election history reveals that majorities were initially constitutionally required to be elected governor or to Maine’s legislature.

Moreover, Maine’s constitution remains silent as to how a plurality is found. The test spelled out in the constitution is that the “votes shall be received, sorted, counted” after which the candidate with the most votes is declared the winner. Ranked-choice voting meets that test.

When opponents of Question 5 decry it as unconstitutional, they neglect the full historical context of the constitutional changes that were made in the 1800s and the lack of clarity in the text of the resulting document. I will concede that reasonable persons and experts can (and do) disagree on these points, but opponents of Question 5 are willing to go farther than warranted with their conclusions.

Consider the most vocal sources of the assertions.

Gordon Weil offers his “it’s unconstitutional” piece recently in the Bangor Daily News, voicing his opinion that Question 5 would not survive without further constitutional amendment. This piece followed Weil’s three-part series of columns opposing ranked-choice voting. Offering up three alternative changes in lieu of ranked-choice voting in his third column, Weil concludes that he favors his fourth alternative: no change. Don’t mess with the status quo. His constitutional interpretation just may also carry his bias.

Separately, Rep. Heather Sirocki (R-Scarborough) has been beating the constitutional drum loudly. Rep. Sirocki, a vocal ranked choice opponent and status quo supporter, raised the constitutional issue formally with Maine’s attorney general, Janet Mills. Mills did validate constitutional concern, but her letter addressing the issue was far from conclusive. Undeterred, Rep. Sirocki describes ranked-choice voting as “blatantly unconstitutional” in a Maine Wire piece in March.

Secretary of State Matt Dunlap told the Portland Press Herald last week“It’s a matter of opinion,” Dunlap said. “Formally, everything considered and passed either by the people directly or through their representatives in the Legislature is considered to be constitutional unless and until challenged successfully before the Law Court. The folks in the black robes have final say on constitutionality.”

At least four experts have declared Question 5 constitutional, as follows:

  • Dmitry Bam, Constitutional Law Professor, University of Maine School of Law
  • Peter Pitegoff, Former Dean, University of Maine School of Law
  • Timothy R. Shannon, Partner, Verrill Dana LLP
  • Alexandra A.E. Shapiro, Partner, Shapiro Arato LLP

A fifth expert, Jamie T. Kilbreth, attorney at Drummond Woodsum, says, “The claim of unconstitutionality is nothing more than rank speculation.”

Other experts may disagree, but I think it’s fair to say that none goes as far as Rep. Sirocki in her conclusion.

Maine’s founders intended majority outcomes to elect its leaders, but this ideal was thwarted in the pre-ranked-choice voting era of the 1800s. Lesser outcomes—pluralities–were deemed acceptable, but were certainly not seen as preferable at the time. We should have faith that when Question 5 challenges come, the constitutional issue will be examined, not by partisans, but by the courts. Thoughtful judges will consider the intent of Maine’s constitution and its amendments regarding elections, as well as ranked-choice voting’s very strong legal precedents elsewhere.

Mainers rejecting the “lesser of two evils” status quo and favoring greater choice should vote yes on Question 5. If it passes, we should have faith that the will of Maine’s voters for better democracy will ultimately prevail.