Maine Lawmakers Are About To Give Their Voters The Shaft

Author: Ned White
Created: 29 May, 2017
Updated: 17 October, 2022
6 min read

Ranked Choice Voting headed for the dustbin this week? (Huge update over the weekend.)

I’ve written two previous posts about Ranked Choice Voting, here and here, and things were looking pretty good for it – up until a few weeks ago. I was planning to write this post for publication on or about June 4, but that would be too late because things are moving very fast.

ALSO READ: Maine Supreme Court Says Ranked Choice Voting is Unconstitutional

Here’s a thumbnail of its recent history:

First, the “Solemn Occasion” vote

Last month, the state Senate voted nearly overwhelmingly that RCV warranted a “solemn occasion” determination by the State Supreme Court. All Republicans – all 18 of them – voted "yea" on this, joined by more than a handful of Democrats. To be fair, those Democrats believed RCV needed a preliminary court test before being enacted into law, so that it wouldn’t be shot down later as unconstitutional.

It goes to the Supremes

After hearing arguments from both sides, the seven Supreme Court justices (variously appointed by Govs. King, Balducci, and LePage) issued an “advisory opinion” on May 23, declaring part of the RCV bill as unconstitutional – the part applying to general statewide elections – because of “plurality” language in the Constitution.

They appeared to let stand RCV for statewide primaries, congressional primaries, and congressional general elections. But a resounding unanimous (7-0) "no" to general statewide elections – governor, state senators and reps, and other executive offices.

This was a “shot across the bow” from the court. It said, hey look, this is not a binding ruling, it’s just that if RCV becomes law and is challenged in the court, we’re going to blow it out of the water.

The Legislative Council votes on two bills

After the court opinion, Sen. Cathy Breen presented a bill to amend Maine’s Constitution to eliminate the “plurality” language. An opposing bill, from Sen. Garrett Mason, seeks to repeal RCV in its entirety, even though there’s no doubt at all about using it for primary and federal elections.

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Both bills went to the Legislative Council – the ten majority and minority leaders in the House and Senate – whose role it was to decide if either or both bills should go before the full legislature for arguments and a vote. The Council voted unanimously in favor of presenting both bills, agreeing they both needed a full public airing on the Senate and House floors.

So where are we?

First, the two bills:

  • Amend the Constitution. It takes a two-thirds majority in both houses to do this, and those I spoke to/emailed with – Sens. Dave Miramant and Troy Jackson – were not at all optimistic this could happen. The votes just aren’t there.
  • Repeal the bill in its entirety. It takes a simple majority in both houses to repeal RCV. “Repeal” is a strange word here, because I have trouble envisioning repeal of a bill that isn’t even law yet. Would this pass? Some see it as a toss-up. I don’t know, but it’s patently unfair and undemocratic to throw the baby out with the bathwater, completely torpedoing a bill that Maine voters approved last fall.

READ MORE: Ranked Choice Voting Advocates Celebrate Historic Victory in Maine

The central problem: partisanship

RCV has a history in Maine – it’s been tried in various forms in various places over the years, and it has always been a bipartisan/nonpartisan issue. Large numbers of Republicans and Democrats at the state and local levels have enthusiastically supported it in the past.

But no more! Suddenly, it’s an intensely partisan issue. Republicans for the most part hate RCV, lining up squarely behind Paul LePage; Democrats broadly favor it.

The core tenet of Maine’s Constitution

The few times I’ve dipped my toes into Maine politics, I’ve heard from different legislators that the fundamental central purpose of our state’s Constitution is to honor and respect and guard the will of the people of Maine. So it was in the 1880s, when the “plurality” language was added – to prevent the Maine legislature from selecting a given candidate for office when no candidate had won a simple majority of votes. That’s how it used to be done. It made sense then, because RCV hadn’t been invented yet.

Legislators need to remember that: the Constitution is for us, the people of Maine, and not anyone else.

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BIG WEEKEND UPDATE: Rep. Ackley Proposes New "Middle Road" Bill

From Rep. Ackley’s Press Release, via RCV Maine's website:

AUGUSTA, MAINE — Rep. Kent Ackley (I-Monmouth) has proposed a pragmatic solution to address constitutional concerns about Ranked Choice Voting. Rep. Ackley’s bill, “An Act to Bring Maine’s Ranked Choice Voting Law into Constitutional Compliance,” would update the Law, so it can be implemented for both primary and federal elections starting in 2018.

“The Legislature can and should update Maine’s Ranked Choice Voting Law to make it work,” said Rep. Kent Ackley. “Ranked Choice Voting was approved by the second largest referendum vote of the people in Maine’s history last November. As representatives of the people, we have a responsibility to uphold their will.”

Constitutional questions about using Ranked Choice Voting only pertain to general elections for governor, state senate, and state representative. There are no constitutional questions about using it in primary and federal elections. Rep. Ackley’s bill would remove general elections for governor, state senate, and state representative from Maine’s Ranked Choice Voting Law to resolve all constitutional questions and ensure that Ranked Choice Voting is in place for both primary and federal elections in 2018.

“There’s no problem using Ranked Choice Voting in 7 out of 10 elections in which voters approved it, so let’s move forward with those,” said Rep. Ackley. “Maine people are counting on lawmakers to do the right thing, get this done, and implement Ranked Choice Voting.”

Yesterday, Legislative Council voted to allow two bills to move forward in the Legislature: a constitutional amendment and a full repeal bill. Legislative Council now has the opportunity to also allow Rep. Ackley’s fix bill to move forward for consideration.

Every U.S. city that uses Ranked Choice Voting for municipal elections also uses First Past The Post to elect state and federal officeholders. Voters have no difficulty moving between the ballots and understanding that some races afford them the opportunity to rank candidates while others do not. In fact, voters in Portland, Maine, use Ranked Choice Voting to elect their mayor, but not their city councilors.

Wow! Thank you, Kent Ackley! We’ll take 7 out of 10 elections now, and get the rest later – after we amend the constitution!

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People: take action

Check out RCV Maine's website to find out how you can have an impact on your senators and reps. You can tell them:

  • It makes no sense that a two-thirds legislative majority is required to uphold the will of the people.
  • It makes no sense that a simple majority is needed to defy the will of the people.

Thanks to Sens. Troy Jackson and Dave Miramant for helping me with this piece. Apologies to them for not including more of their interview content here, but suddenly time was very short and I felt I needed to move fast.

Editor's note: This article originally published on Ned White's blog, "Journeys over a Hot Stove," part of the BDN Network. It has been modified slightly for publication on IVN and was republished with permission from the author.

Photo Credit: Joseph Sohm / shutterstock.com

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