As many know, the Maine SJC yesterday issued its unanimous advisory opinion concluding that ranked choice voting is unconstitutional under the Maine Constitution. Opinion of Justices, 2017 ME 100. It’s been the subject of various press stories, e.g.: Maine Supreme Judicial Court rules ranked-choice voting unconstitutional, bangordailynews.com; Maine’s highest court rules ranked-choice voting is unconstitutional, presshearld.com; Ranked-choice voting violates Maine constitution, washingtonpost.com; No-majority elections in old Maine, washingtonpost.com; Ranked-Choice Voting System Violates Maine’s Constitution, Court Says, nytimes.com. So let’s share some observations more off the beaten track.
First, note that we represented the House Republican Caucus and the Maine Heritage Policy Center in filing an amicus brief, and our able Joshua Dunlap participated in the argument. Like the Maine AG, and ultimately the Court, we explained how RCV is unconstitutional. Here’s a link to the briefs we filed: Initial Brief, Responsive Brief.
Regarding the opinion, while it’s 45 pages long, the discussion of the merits of the argument is brief, because, in the end, the issue is simple, and, at least to me, the question was easy to answer. The Constitution requires a plurality, while RCV seeks a majority. (See Paragraph 64 of the decision.) When the League of Women Voters first debated the legality of RCV years ago, I was on a panel with Jamie Kilbreth and ex-CJ Wathen in which we all concluded it was unconstitutional, and I’ve blogged on this before. Ranked voting, Joshua Chamberlain, and excellent legislative history. A plurality is not a majority. If the language were not clear enough, this point was graphically underscored by the rip snorting legislative history on this Constitutional provision, discussed in the earlier blog and the amicus brief, which, among other things, involved Joshua Chamberlain risking his life quelling the riots that led to a change from majority to the plurality requirement.
I was very happy to see that the SJC gave a shout out to the General. (Paragraphs 54 & 63.)
As the Court noted, it’s not opining as to whether RCV is a good or bad policy – you just can’t override a Constitutional provision with a statute; you need to change the Constitutional provision. When the issue is something as fundamental as the right to vote, it makes sense to enshrine the principles that affect who will win in the relatively immutable text of a Constitutional provision. You can always change the Constitution; you just need a higher degree of support beyond a simple majority. Our forefathers hardwired that principle into our political system again for a good reason – we don’t want, for example, the Bill of Rights to be changed easily by the majority, because it protects minority rights.
The SJC devoted much more of its opinion on discussing whether the necessary “solemn occasion” existed, and saying aspects of this analysis were close. (See Paragraph 41.) All I can say is phew, I’m glad they did answer the question, because potentially there would have been a huge mess had they not.
Some argued that in theory, you could wait until there was an election, and then a candidate affected by the use of RCV could file a declaratory judgment action seeking a ruling then, when the matter was concrete. Setting aside that whether RCV or plurality voting is used affects how a candidate campaigns, and other logistical difficulties with waiting, such a delay could have led to a real Constitutional crisis. Article IV, Section 3 of the Maine Constitution provides that the House judges who wins its elections, and the case law says that means not the Court. (See also Article IV, Section 5 saying the same for the Senate, and Article V, Section 3, saying that the Legislature determines the number of votes duly cast for the office of Governor “and in case of a choice by plurality of all the votes returned they shall declare and publish the same.”) So after the election, at that point it would be up to the legislative branch to decide, not the Court. The Legislature at that point would have an opinion by their lawyer, the AG, saying that RCV was unconstitutional. So would they, adhering to that, seat whomever would have won on the first round by a plurality? Would one body, the House, decide one way and the Senate another? If so, we could have quickly entered the world of disarray that in the 19th Century forced Old Joshua to climb up on his horse again and face his second battle of Little Round Top.
A second legal problem rearing its head had the SJC not ruled as it did goes to the ballot question presented. In voting for the RCV statute, the electorate was presented with the following question on the ballot: Do you want to allow voters to rank their choices of candidates … and to have ballots counted at the state level in multiple rounds … until a candidate wins by majority.” Essentially, the proponents of RCV argued that RCV is not voting until a candidate wins by a majority. If the Court had agreed with them, there would have been a huge mess, because the ballot question would then have been deceptive. A deceptive question on a ballot raises statutory and state Constitutional problems, as well as federal due process issues.
In theory, with the SJC’s opinion only advisory, it could be ignored. But given that it was unanimous, that seems unlikely. So now, the problem for the Legislature to wrestle with is primarily logistical. The Constitutional “plurality” language only affects state offices, not federal. If they leave the RCV law as it is for federal offices, then elections in Maine will be very complicated and expensive. Indeed, while there is a severability clause in the statute, is the statute severable as a legal matter given these difficulties? Stay tuned.
But for now, kudos to the SJC for a thoughtful, comprehensive and unanimous decision.