Earlier this year, Maine senators called on the state Supreme Court to give an advisory opinion on the constitutionality of ranked choice voting as it was passed by voters in November 2016 for state and federal elections. A responsive brief has now been filed by Marshall J. Tinkle in favor of the ranked choice voting ballot initiative.

Opponents in the legislature argued that ranked choice voting violates constitutional provisions that require a plurality (or simple plurality) vote to decide who wins statewide elections. Further, opponents raised the argument that ranked choice voting cannot be implemented because should it be ruled unconstitutional, it would create "havoc" in elections and a “constitutional and political crisis.”

In his responsive brief, Tinkle says the court should decline to answer these questions because there is no evidence to support the claims and opponents of ranked choice voting were asking the court to do things that go against the role of the judiciary. Below are some key takeaways from the responsive brief.

On the question that ranked choice voting would eventually upend elections, the brief says:

"First of all, the Act must be regarded as valid “until otherwise declared by the court.” [...] Regardless of whether the Justices answer the Questions, the officials charged with implementing the Act will be obliged to carry out its dictates pursuant to their duties to uphold the laws of Maine unless and until the Court declares it unconstitutional. [...] There will be no reason to delay declaring the winners of ranked-choice voting elections or swearing them in....""Secondly, there is no reason to assume that the Act ever will be declared unconstitutional, not only because of the strong presumption of constitutionality and the policy against finding laws unconstitutional unless strictly necessary but also because of all the convincing arguments that have been offered in favor of the Act’s constitutionality. But even if a court were to deem the Act in conflict with Maine’s supreme law after elected officials took office, that would scarcely precipitate a crisis."

On the question of ranked choice voting being constitutional, the brief says:

"The forces arrayed against ranked-choice voting are asking the Justices to adopt the construction that would most likely put the Act in conflict with the Constitution. That is the antithesis of what a court examining the constitutionality of legislation is required to do.""[The state constitution] broadly lays out a few basic steps in the ballot aggregation process designed to foster accuracy, transparency, and integrity so that the election results will reflect the will of the electors. There is no evidence that ranked-choice voting will impede any of these goals. To the contrary, it is designed to better reflect the popular will in the election results."

Read the full brief:

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