Elections, Featured

Maine Citizens Want Ranked-Choice Voting, But State Supreme Court Disagrees

Maine is known for its independent streak in electoral politics. Republican and Democratic partisanship never seems to take hold here, which is one reason why independent Ross Perot actually beat the Republican candidate in 1992 – although he lost the plurality to Bill Clinton. Perot garnered 30.44 percent to George H.W. Bush’s 30.39 percent, but Clinton won with 38.77 percent.

Many of Maine’s most notable politicians – such as Sen. Susan Collins, a Republican – continue to defy partisan labels. And its voters decisively reject being put in the bipartisan box. In November, voters passed Question 5, “An Act to Establish Ranked-Choice Voting.” It made Maine the first state to ditch so-called “first-past-the-post” voting in favor of “instant runoffs” where voters rank candidates in the order of preference.

But now that voter initiative has been shot down by the Maine Supreme Court – sort of. And legislators and voters face a challenge to their independence, and a murky dilemma.

How ranked-choice voting works

Question 5 would have, or might still, set up this ranked-choice approach to electoral politics: If no candidate receives 50 percent of first-preference votes, candidate selection would be governed by progressively reassigning voters’ tallies for their second-choice and third-choice candidates, and so forth.

In the case of ranked-choice voting if applied to Clinton versus Perot versus Bush in 1992, Bush would be eliminated from the “instant runoff” between Clinton and Perot. If Perot had received about two-thirds of Bush’s second-choice votes, he would crossed the line and become the majority winner.

This system is also called “instant runoffs” because it enables the citizens to vote once, and yet still have effective voice in the “runoff” election that is conducted at the same moment that it is known which candidate garnered the least amount of votes.

Ranked choice balloting is frequently used in party runoff contests. It saves time on an otherwise grueling voting schedule that repeats itself until one candidate obtains the majority. But Maine is, or would be, the first state to have implemented it in all elections except for president. That is, had the state supreme court not intervened.

Why ranked-choice voting matters to our democracy

Ranked-choice voting could eliminate one of the most undesirable features of the so-called “first-past-the-post” method of voting: Its tendency to force a two-party system. This tendency is also known as “Duverger’s Law.”

Under “first-past-the-post,” a plurality is also a victory: The voter goes to the polls on Election Day, is presented with a slip of paper listing all the candidates for all the various offices, and picks one name to vote for in each race. The candidate with the most votes is declared the winner.

But this traditional system shared by the United Kingdom and the United States has long had its opponents. French sociologist and politician Maurice Duverger hypothesized that with the so-called “spoiler effect,” parties and politicians are heavily incentivized to assemble themselves into two very broad-based parties that vie for a viable majority coalition. Third-party efforts and independent campaigns are effectively shut out as voters fear “wasting their vote” in picking a candidate outside of the two entrenched parties. This can allow a candidate like Bill Clinton to win a state with only 38 percent of the vote.

Indeed, Maine has had other experiences with a plurality-winner who fell well short of a majority. That’s simply what happens when the vote is split among more than two candidates. And that’s how independent and centrist Maine came to twice have a bombastic far-right firebrand Paul LePage as governor. He first won in 2010 with 37.6 percent in a five-candidate election. He was re-elected in 2014, which seemed to force the issue of ranked-choice voting and led to Question 5 on the 2016 ballot.

Ranked-choice voting seems a natural fit for Maine, where strong independent candidacies are common. Sen. Angus King, a former governor, is an independent who caucuses with the Democrats. In the 2010 election, an independent left-leaning candidate outpolled the Democratic nominee and took second place. Sen. Collins also showed her independent streak last year when she famously said that she was looking at voting for the Libertarian presidential ticket of Gary Johnson and Bill Weld. (The ticket got 5.09 percent in Maine in 2016, outperforming its 3.27 percent of the popular vote nationwide.)

The State Supreme Court versus Maine’s independent streak

Weakening bipolar partisanship was among the benefits touted to voters by Question 5’s proponents. Hence it was particularly dismaying when in May the state Supreme Court held, in an advisory opinion, that ranked-choice voting violates the Maine Constitution. At least two justices cited the fact that ranked-choice voting would potentially weaken the two-party-system. That’s a feature, not a bug!

Perhaps it is fortunate the court’s opinion was only advisory. That’s because of another odd wrinkle in the state’s constitution which has no parallel at the federal level. Hence the decision has no immediate effect. But it strongly suggests that if an actual case came before the state supreme court, the court would reach the same conclusion.

So now the legislature has two options. First, they could vote to repeal the statute that voters just passed. This would be problematically self-serving and undemocratic. Second, they could refer the substance of Question 5 back to the voters as a proposed state constitutional amendment. That would insulate Mainer’s preference for ranked-choice voting from future state court challenges.

With so many Americans depressed and disenchanted by bipolar bipartisanship, Maine’s experiment in multi-partisan democracy is, or was, a promising ray of hope. This question should go back to the voters to overturn their Supreme Court decision and codify their independence in the state constitution.

(Photograph by Mark Buckawicki used with permission.)

Andy Craig

A writer and political consultant in Milwaukee, WI, Andy Craig is active in several roles within the Libertarian Party, including two campaigns for public office, re-establishing official party status in Wisconsin, and receiving over 11% of the vote for Congress. He works with candidates on recruitment, strategy, messaging, ballot access, and endorsements, overseeing the latter for the Johnson/Weld campaign.


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