Ranked-choice voting failure was foreseen, but avoidable

Well, I hate to say I told you so. But, I told you so. I tried. I tried to warn you all that ranked-choice voting was unconstitutional.

Said I, in late October of last year, “The language [in the Maine Constitution], however, is not about defining the upper limit of vote totals necessary to win. The language is intended to define the lower limit. By that I mean that the Maine Constitution has set a bar that a candidate must cross to be considered a winner. That bar is lower than a majority. It’s a plurality. Thus, once any candidate at any point has achieved a plurality, they have won the election.”

Tuesday, the Maine Supreme Judicial Court agreed. “The Act, in contrast, provides for the tabulation of votes in rounds. Thus, the Act prevents the recognition of the winning candidate when the first plurality is identified. According to the terms of the Constitution, a candidate who receives a plurality of the votes would be declared the winner in that election.”

Their opinion was unanimous.

If either of those descriptions was confusing, the “in a nutshell” version is simply that Maine’s Constitution makes it rather plain that the moment a candidate gets a plurality of votes, he or she wins.

The question isn’t whether or not a majority is better than a plurality.

Ranked-choice voting is simply “instant runoff” voting, rather than a traditional runoff. The second (and subsequent) rounds are held in a single day.

But whenever the additional rounds are held, they are clearly identifiable rounds with legitimate vote tabulations. Since the Constitution requires that a winner is declared once a plurality is reached, there can be no second round of any kind. Once you achieve a plurality, you win.

Now, while my very well-informed opinion has been vindicated by the court, there are some complications.

Their opinion was an advisory opinion only. The law still remains in effect, and if nothing
changes, elections will need to be conducted according to that law. The opinion also only deals with gubernatorial, state House and state Senate elections subject to the Maine Constitution, and leaves ranked-choice voting intact for federal elections.

So, the Legislature has some work ahead of it. But what to do?

The way I see it, they can do one of three things.

They can leave everything the way it is, conduct elections under a system they now know is unconstitutional, and open the state up to pointless litigation, and chaos in the event of any second-place winner prevailing over a first-round plurality winner.
They could repeal ranked-choice voting for all state elections, but not touch it for federal elections, and allow Maine to have a confusing, convoluted system that elects people for different offices under different rules.

Or they can scrap the whole thing and let proponents of ranked-choice voting start over and propose a constitutional amendment, which is what they should have done in the first place. Such an amendment has already been proposed in the Legislature.

Unfortunately, sanity is not exactly in abundance in the Legislature, and already liberal politicians are lining up to “save ranked-choice voting” by any combination of many terrible ideas.

The arguments they present are, if nothing else, predictable. “The will of the people,” like all poorly thought-out referendums, is the battle cry.

But I’d be careful about appealing to that tired trope when your side lied to the people in order to get them to vote yes. Even today, the Committee for Ranked Choice Voting claims on their website that ranked-choice voting is constitutional. Responding to the question, “Does ranked-choice voting raise any constitutional questions?” they say, “Constitutional scholars at the University of Maine School of Law and other prominent attorneys have confirmed that ranked-choice voting is consistent with both the U.S. and Maine Constitutions.”

In other words, they made an argument to the people that the people considered when they voted, and that argument was patently false. Even if you don’t think there was any nefarious intent and that proponents truly did believe it to be constitutional, there is simply no debate about the fact that the people’s opinion was based largely on information that we know now is not accurate.

What would the people have said if opponents could run commercials saying, “It has been confirmed that this law would be unconstitutional?” I’m guessing it wouldn’t have passed.

Given that, it is entirely illegitimate to claim that the people’s vote should dictate anything about the Legislature’s impending decision on how to handle the court’s opinion.

Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Heritage Policy Center, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.