Ranked voting, Joshua Chamberlain, and excellent legislative history

Practice area:

The Attorney General recently issued an opinion on the constitutionality of proposed legislation to adopt ranked voting, noting that the proposed law presents serious constitutional issues. https://drive.google.com/file/d/0B3PYp5sROj_1RGNBUldIelk0T1lHVTZ1UTRrSkU3eHZtdFZJ/view?pref=2&pli=1.   

The problem is that the relevant provision in the Maine Constitution refers to vote by a “plurality,” which suggested that you pick the candidate with the most votes and end there.

Whatever your view on the ultimate constitutionality of ranked voting, the inclusion of this “plurality” language in the Constitution is one of those rare instances of extremely compelling Maine legislative history.  Sadly, the AG’s opinion leaves out this lively background.  (You would never know from her opinion that AG Janet Mills is the sister of Uber Maine historian Paul Mills, whom I am sure would have added this colorful context had he been consulted).  Here’s that history.

Before 1880, the Maine Constitution said that if no one gets a majority vote for governor, the House and Session would jointly decide.  This wasn’t a problem when the Republicans won a majority 22 times in a row.  In 1878, however, the Greenback Party took enough votes to prevent either major party from obtaining a majority.  The acrimonious proceedings in the Legislature resulted in a Democrat, Alonzo Garcelon named governor, although he had finished third. The Republicans were not happy campers. 

The next year, the Republican came very close to a majority (49.69%), and it looked like the Republicans also carried the Legislature.  But the Democrats claimed fraud, and ostensibly exercising the power to examine returns, Garcelon and his counsel declared various Republicans disqualified and coalesced around the Greenback candidate.  The SJC said Garcelon acted unconstitutionally (70 Me 560 (1880)).  Tough noogies, the Democrats said, convening a legislature in accordance with the Governor’s tally.   

What happened next makes any current political shenanigans pale in comparison.  Mobs and militias roamed the streets of Augusta.  Authorities requisitioned munitions from the Bangor armory.  The Governor had to call out Joshua Chamberlain, of Gettysburg fame, to quell the riots.  In the midst of all this, a group of Republican legislators broke into the State House and organized a Republican legislature.  These dueling Legislatures then went back to the SJC, which ruled for the Republicans, who ultimately prevailed, resulting in Republican Governor Davis.  (See 70 Me. 570, 70 Me. 600 (1880)).

The Legislature endorsed a constitutional amendment to only require a plurality three days after the last SJC decision, which the voters approved later that year.

Now that’s what I call legislative history.