ELLSWORTH — Is ranked-choice voting the best way for Mainers to choose their elected representatives or a recipe for electoral chaos?
It depends who you ask.
Supporters say it will ensure that winning candidates are supported by a majority rather than just a plurality of voters. Others, meanwhile, say it could throw elections into disarray. They cite a contentious 19th-century governor’s race as a cautionary note.
The aftermath of Maine’s 1879 gubernatorial election saw Civil War hero Joshua Lawrence Chamberlain called to Augusta to command the state militia after armed mobs took to the street. He wrote to his wife it “was another Round Top,” a reference to the hill where he was credited with saving the day and the Union army at Gettysburg in 1863.
Mainers last fall narrowly (52 percent to 48 percent) approved using ranked-choice voting for all state and federal primaries and elections starting in 2018. Whether ranked choice is used, however, remains to be seen.
“Ranked-choice voting, right now, is at a 30-degree list with a bloody nose,” said Secretary of State Matt Dunlap recently. A possible fix may be taken up during the upcoming special session of the Legislature, though there is no guarantee as to its fate if it is taken up.
The key concept of ranked-choice voting is that voters rank multiple candidates in order of preference, rather than selecting just one. Low-ranking candidates are winnowed out as votes are tallied, and ultimately the winner will have support from more than half of voters.
That puts ranked-choice voting in conflict with the Maine constitution, however, which stipulates that state senators, state representatives and the governor shall be elected by a plurality of votes — simply whoever has the most, which is not necessarily a majority.
Recent gubernatorial elections in Maine have seen the winning candidates receive less than 50 percent, for example: Republican Gov. Paul LePage got 38 percent when he was elected in 2010, the same as Democrat John Baldacci in 2006.
The plurality language was added to the Maine Constitution in 1880. It came after the election of 1879, in which none of the candidates for governor received a majority of votes. The Legislature got involved, accusations of voter fraud were made, and Chamberlain came to Augusta to tame the armed mobs.
“After this ordeal, the state eliminated the requirement that a gubernatorial candidate win a majority in order to win the office outright; instead, a plurality would suffice,” Edward Foley wrote in his 2016 book “Ballot Battles: The History of Disputed Elections in the United States.”
Maine had made the shift to the plurality rule for state senators and representatives in 1875.
Maine’s Supreme Judicial Court was asked to review ranked-choice voting earlier this year and issued an advisory opinion in May, citing the “looming uncertainty in the means by which the people may elect their chosen representatives.”
The seven justices opined unanimously that ranked-choice voting “is in direct conflict with the Constitution” for the three state-level races and explained why that is.
“If, after one round of counting, a candidate obtained a plurality of votes but not a majority, that candidate would be declared the winner according to the Maine Constitution as it currently exists,” the justices wrote. “According to the [ranked-choice voting] Act, however, that same candidate would not then be declared the winner.”
That advisory ruling means a legal challenge would likely advance if there was a difference between who got a plurality and majority of votes in one of the three state-level offices.
Separate attempts were made in the last legislative session, both of which failed, to either repeal ranked-choice voting entirely or amend the Constitution so as to make it legal. Another attempt to address constitutional concerns likely will be taken up by the Legislature when it meets in a special session on Monday, Oct. 23.
State Rep. Kent Ackley from Monmouth, who lists his party affiliation as Common Sense Independent, has sponsored LD 1646, “An Act To Bring Maine’s Ranked-choice Voting Law into Constitutional Compliance.”
The bill would allow ranked-choice voting in all contests not covered by the high court’s ruling. It states the new method of voting could be used only for the other three races if and when Maine’s Constitution is modified to allow “the Legislature … to determine the method by which the Governor and members of the State Senate and House of Representatives are elected.”
The bill would also direct the Secretary of State to “adopt rules for the proper and efficient administration of elections determined by ranked-choice voting.” Dunlap said one of the problems with the law passed by voters is that it did not provide for such rule-making authority.
Doing so would require $1.2 million over two fiscal years according to the fiscal note attached to Ackley’s bill. It also notes the Department of Public Safety would need about $149,000 annually if the bill were enacted.
A public hearing on Ackley’s bill has been scheduled for Monday, Oct. 16 at 10 a.m. before the Legislature’s Veterans and Legal Affairs Committee in Room 437 at the State House in Augusta.
Ann Luther is advocacy chairwoman for the League of Women Voters of Maine. The group supported passage of ranked-choice voting last year, and she said it now supports LD 1646 as “the responsible path forward.”
Beyond the constitutional issues, Dunlap also has concerns about the logistics of how ranked-choice voting would work: where and how would the ballots be counted? How would results be reported and how long would it take? One big issue: how would recounts work? Who can ask for a recount?
The primary elections on June 12, 2018 will be the first time ranked-choice voting is used in Maine. Some ballots will be crowded — Democrats have already seen 10 candidates declare for the gubernatorial race — and Dunlap said there is no time for a trial run before then.
“We’re nervous about that,” he said.
Luther said the League “does not dismiss as unreasonable” such concerns but believes some of the language used to describe them has been “inflammatory.” Dunlap told a Portland radio station last month that “doing nothing” about the unresolved issues surrounding ranked-choice voting was “the equivalent of leaving a loaded revolver on a swing set.”
“There’s going to be a disaster, it’s just a matter of when,” Dunlap said on the radio.
While Ackley’s legislation would do something, if approved it could also result in two different election systems being in place: Mainers using ranked-choice voting to elect their U.S. senator and representatives but using a traditional system to elect a governor and state legislators unless and until the Constitution is modified.
Dunlap said using those dual methods simultaneously would be “extraordinarily difficult.” The League of Women Voters of Maine disputes that, however, noting that Portland voters did so twice in recent years and that there “were no reports of confusion among voters in either election.”
“We would not want to oversimplify or dismiss that this is a big change, and that election officials will have to do things differently,” Luther said. But she and other supporters believe those logistical issues can be addressed in a way that respects the will of Maine voters who opted for ranked-choice voting.
Dunlap said he wants to make sure that voters and election officials fully understand the workings of ranked-choice voting. As the state’s top election official, he takes the business of voting seriously and wants to make sure it serves the citizens who use it well.
“Voting is a sacred altar,” he said. “This is the cornerstone of the democratic principle of self-governance.”