Maine Senate Asks High Court for Opinion on Voter-Approved Ranked-Choice Initiative

Feb 3, 2017

Maine voters approved a measure this past fall to adopt a ranked-choice voting system for statewide elections. Now lawmakers who are trying to implement the new law are asking the Maine Supreme Court to weigh in on whether it’s constitutional.

Last year Maine Attorney General Janet Mills raised questions about the proposal because it appeared to clash with language in the state constitution. For decades, the candidate that got the most votes in a contest has been declared the winner. But under the new system, voters will indicate their top multiple choices in order of preference, and the candidates with the fewest votes are eliminated until someone has a majority.

Democratic state Sen. Shenna Bellows of Manchester, former director of the ACLU in Maine, says the voters have spoken and the Legislature should follow their will.

“We do not want to set a precedent of a Legislature turning to the courts every time a law is passed to seek an advisory opinion as to the constitutionality of our legislation,” she says.

But the Senate did decide to get a second opinion, voting 24-10 to ask the justices to look at the proposal. That majority included supporters of ranked-choice voting like Augusta Republican Sen. Roger Katz, an attorney who argued it is better to get an opinion now than implement the new system and get a surprise ruling after next year’s elections.

“We can do it now easily or we can do it later when it is amidst chaos and it would be much more expensive for us to get involved. And remember that it is the same court that is going to decide this ultimately, one way or another,” he says.

Another Republican supporter of ranked-choice voting, Sen. Eric Brakey of Auburn, also was in favor of seeking an opinion.

“I do think that there are some very serious constitutional issues here that even the attorney general has raised,” he says.

Portland Democratic Sen. Mark Dion, an attorney, says he believes the measure is constitutional. And he questioned whether the court would even consider the Senate’s request for an opinion on legislation that was already law.

“Democracy is messy. We may have concerns about how the people have expressed their will, but they have expressed it,” he says.

Kyle Bailey, the campaign chairman for the Committee for Ranked Choice Voting, agrees. He says the group is ready to fight in court to defend the law should the high court agree to consider the matter.

“The 400,000 people who voted for ranked-choice voting in Maine are going to do everything in their power to defend this law and our direct democracy through the citizen initiative process,” he says.

The Supreme Court operates on its own timetable. If it decides to consider the request, it will likely ask for written arguments from all sides of the issue and may schedule oral arguments so the justices can question lawyers on the issues raised in the written arguments.

Once all arguments are heard, the court has historically answered such questions from the Legislature rather quickly.