Maine Supreme Court Declares Ranked Choice Voting Unconstitutional
April 9, 2018
By: Charles Truxillo
On May 23, 2017, the Maine Supreme Court unanimously identified portions of the State’s initiative to implement ranked choice voting (Question 5 of the 2016 initiative ballot) as conflicting with the State’s Constitution. Although the opinion offers no binding precedent as of yet, the state legislature swiftly moved to implement potential solutions to the impending constitutional concern. After following a party-line vote on October 23, 2017, the legislature’s responding bill ordered the repeal of Question 5 if the Constitution fails to be properly amended by December of 2021.
As stated by the text of Question 5, ranked choice voting involves requiring voters to list their candidates in order of support and preference. The candidate that manages to get the majority of “first choice” votes wins the nomination. If no candidate receives the majority of first choices, then the candidate with the least amount of first choice votes is eliminated and the votes are recounted with every candidate ranking lower than that candidate being shifted up. This process continues until one candidate claims 50% plus one of all first choice votes.
The ranked choice voting system receives much of its support on the grounds that these votes are more reflective of the will of the people. Instead of forcing the voter to settle on one candidate who may not reflect his/ her general interests, ranked choice voting allows voters to follow through and vote more heavily on issues. If a voter feels strongly about a topic, then the voter can rank the candidate based on how the voter perceives the candidate’s ability to act on that issue. This, in turn, motivates candidates to appeal more to the desired issues at large rather than just appealing to a core party base. The hope is that by shifting the focus from the party to the issues, elections become less partisan and more democratic, at least when compared to the choice between two individual systems.
The ranked system is more complex than the traditional one vote system. An opponent of ranked choice fears that since the ranked choice is so novel and confusing, the average voter might be discouraged from participating in the process. This could lead to even lower turnout rates experienced by the current one vote system. Another concern is that ranked choice requires significantly more input by administrators who would have to count the votes multiple times. If the ranked choice system is implemented, either the elections would be opened up to much more discrepancies and errors, or the communities would have to buy all new software to handle these extra steps. Either scenario introduces a burden on the state that would be significantly smaller if the state just stuck with its traditional voting system.
The Supreme Court of Maine’s major contention is that ranked choice voting facially violates the plurality requirement of Maine’s Constitution. Under the current system, candidates only require a plurality of the votes to win the election, meaning that in cases of three or more candidates, no candidate need get 50% plus one of the vote. The ranked choice system, on the other hand, outright ignores this standard, opting to simply remove the weakest candidate from the ballot until a clear majority is won. It is this recounting that is at issue here as it can potentially open the door for someone to win the initial plurality of votes but lose the election, thus violating the plurality requirement of the Maine Constitution. As seen in figure 1, Candidate A would have won the election under the plurality requirement, but because ranked-choice requires a majority and drops the least preferred candidate until a majority is met, candidate B would be the winner. The court sees this as a clear violation of the Constitution and would leave the state vulnerable to lawsuits that could severely undermine the integrity of Maine’s electoral system.
| Figure 1: Ranked Choice Voting | |||
| First Choice | Second Choice | Third Choice | |
| Voter 1 | A | B | C |
| Voter 2 | A | C | B |
| Voter 3 | A | B | C |
| Voter 4 | A | B | C |
| Voter 5 | B | C | A |
| Voter 6 | B | A | C |
| Voter 7 | B | A | C |
| Voter 8 | C | B | A |
| Voter 9 | C | B | A |
Ranked Choice voting has potential to revolutionize Maine’s electoral process, but as it stands now the state’s election would be put too much at risk. The only way the state can get around this constitutional block would be to amend the constitution to remove this plurality requirement. Unfortunately for supporters of ranked choice voting such an amendment would require the support of at least two-thirds of both chambers. Seeing as the initial responding bill to the court’s opinion followed a partisan split with the Republican Majority heavily opposing Question 5, it is likely that such an amendment would fail.