The Maine Supreme Judicial Court held oral arguments Thursday in a rare case that could determine whether Maine's ranked-choice voting system will be used in the June primary. The expedited hearing was in response to a request by Maine Senate Republicans that the court halt state implementation of the new voting system. But during a 35-minute hearing, nearly all seven justices appeared skeptical of the Republicans' arguments, and some wondered why the court was asked to solve a problem that Legislature wouldn't, or couldn't.
The Senate Republicans Attorney Tim Woodcock made it through about a minute of his arguments before Chief Justice Leigh Saufley had a question.
It was the first of many questions for Woodcock. He was pressed repeatedly by the justices as he attempted to argue a central point: that state election officials were taking steps to set up a ranked-choice voting system without authorization from the Legislature.
Woodcock attempted to argue that doing so is breach of the separation of powers because lawmakers had never specifically allocated money to the Secretary of State for that purpose.
Justice Donald Alexander expressed skepticism at his remarks.
"The funds were appropriated to supervise elections, which is the Secretary of State's statutory and constitutional authority," Alexander said.
But Woodcock said this election was different. He cited problems with election officials' plans to collect ballots when a ranked-choice election moved into its runoff tabulation.
Justice Andrew Mead wondered why the court was being asked to intervene at all.
“Couldn't reasonable minds have gotten together and said, 'Well, this is an obstacle, this is a solution.' Why are we here today?” he said.
Justice Ellen Gorman made a similar point, and wondered why the entire legislature wasn't as concerned as the Senate Republicans.
“The Legislature, if were it truly worried about this, could take some action between now and the day of its closing bell, rather than bringing an action in the third branch of government to bring things to a standstill. Correct?”
Woodcock replied that there was no consensus in the Legislature.
Woodcock then posed an ominous warning if a ranked-choice election is held, saying it would be an “election catastrophe.” Again, he was challenged by Gorman, who said that problems after election day would constitute an “actual controversy, for which we could issue a determination.”
The judges had fewer questions for Phyllis Gardiner, an assistant attorney general representing the Secretary of State. She was asked to refute Woodcock's argument that the Legislature didn't allocate money specifically for ranked choice.
"This is not a new program,” she says. “This is elections, just as Justice Alexander noted earlier. The Secretary of State administers elections. We're simply administering them by a different method this time."
Attorney James Monteleone representing ranked-choice voting advocates, said the Secretary of State has full authority to conduct a ranked choice election.
"It has never been the practice for the Legislature to essentially micromanage the minutiae of which elections are funded and which aren't," he said.
The court recessed without making a decision. But it will likely deliver one soon, as there are only about 60 days left before the June 12 primary.
Ranked-Choice Voting: How Did We Get Here?
The supreme court is hearing these arguments on the recommendation of Superior Court Judge Michaela Murphy, who on Wednesday said the Republicans’ concerns are best suited for the law court.
Her recommendation effectively puts the fate of the nation’s first statewide ranked-choice election in the hands of the same supreme court seven judges, who last year determined that key parts of the law are unconstitutional.
The supreme court’s determination last year was an advisory opinion, but it gave opponents of ranked-choice the political cover to try and delay and repeal the law voters approved in 2016.
In October, the Legislature passed a law that repeals the law by 2021 if a constitutional amendment isn’t passed to allow the system to be used in all statewide contests.
Advocates for ranked-choice voting then organized a people veto of the repeal law, which will appear on the June 12 ballot, potentially at the same time that Mainers are using the RCV system for the first time.
Nearly 400,000 Maine voters approved ranked-choice voting in 2016. Numerous bills to put the system in place have been defeated over the past decade as many Democrats and Republicans fear that it will erode the influence of their parties while disrupting a plurality election system that both parties have used with success.
The Maine Democratic Party endorsed the system as part of its 2016 party platform, a move often attributed to concerns that its candidates have been hampered in statewide races when there’s more than two candidates in a race.
Under Maine’s plurality voting system, candidates who get the highest vote totals are declared winners.
Under ranked choice, voters rank candidates in order of preference. If no one had more than 50 percent of the vote after the first count, the candidate with the fewest votes is eliminated, but voters who chose that candidate have have their ballots added to the totals of their second-ranked candidates. The ballots are then retabulated until one candidate had a clear majority and is declared the winner.
