Saturday, June 16, 2018

Maine Votes With, and For, Ranked Choice Voting

Maine became the first state this week to use ranked-choice-voting in a state-wide election. In addition to electing candidates in the primaries, Maine voters also voted in favor of a referendum favoring ranked-choice.

It may seem odd that voters both used ranked-choice and voted for it in the same election. (Wouldn't a vote for it usually precede a vote using it?) Here's why: The referendum was designed to undo legislation that postponed and repealed ranked-choice voting unless a constitutional amendment (allowing it) passed before December 1, 2021. The legislation, in turn, was enacted by legislative opponents of ranked-choice, who argued, among other things, that ranked-choice violated the state constitution.

That argument didn't come out of the blue. The state supreme court issued a non-binding advisory opinion earlier this year concluding that ranked-choice did, indeed, violate the state constitution. In short, the court said ranked-choice, with its multiple-rounds that might result in a candidate with a first-round plurality from losing the election (when there are three or more candidates), violated the state constitutional provisions that say that the winning candidate in an election is the person who receives a "plurality" of the vote. The court explained:

The Act, in contrast, provides for the tabulation of votes in rounds. Thus, the Act prevents the recognition of the winning candidate when the first plurality is identified. According to the terms of the Constitution, a candidate who receives a plurality of the votes would be declared the winner in that election. The Act, in contrast, would not declare the plurality candidate the winner of the election, but would require continued tabulation until a majority is achieved or all votes are exhausted. Accordingly, the Act is not simply another method of carrying out the Constitution's requirement of a plurality. In essence, the Act is inapplicable if there are only two candidates, and it is in direct conflict with the Constitution if there are more than two candidates.

The discrepancy between the Act and the Constitution is easily illustrated by the simplest of scenarios. If, after one round of counting, a candidate obtained a plurality of the votes but not a majority, that candidate would be declared the winner according to the Maine Constitution as it currently exists. According to the Act, however, that same candidate would not then be declared the winner.

Instead, the candidate, though already having obtained a plurality of the votes, would be subject to additional rounds of counting in which second, third, and fourth choices are accounted for and the lowest vote-garnering candidates are successively eliminated. Once those additional rounds are completed, a different candidate may be declared the winner--not because that second candidate obtained a plurality of the votes (which the first candidate had already obtained), but because that candidate obtained a majority of the votes after eliminating the other candidates by taking into account the second, third, and fourth place preferences, or because the ballots have been exhausted. In this way, the Act prevents the candidate obtaining a "plurality" from being named the winner unless and until multiple rounds of vote-counting have occurred.

(NB: The ruling is as interesting, or more, for its analysis of the court's power to issue advisory opinions in the context of Maine constitutional separation of powers.)

The ruling is merely advisory, however, and not binding. So there's no definitive say-so as to the constitutionality of ranked-choice voting in the state. Because the referendum removes the legislative barrier to ranked-choice in the absence of a constitutional amendment by December 2021, unless there's an actual and adversarial court case challenging ranked choice (and winning), we'll see it again in the next election, constitutional amendment or not.

https://lawprofessors.typepad.com/conlaw/2018/06/maine-votes-with-and-for-ranked-choice-voting.html

Elections and Voting, News, State Constitutional Law | Permalink

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