AUGUSTA — The Maine Senate voted 24-10 Thursday to ask the state’s highest court for a legal opinion about a law passed by voters in November that would move the state to a ranked-choice voting system.
Senate President Mike Thibodeau, R-Winterport, told fellow senators it was their responsibility to first determine if the new law adheres to the state constitution and, if not, whether they should change it so that it does. Thibodeau said it was critical to make the determination before the next election, and that an opinion by the Maine Supreme Judicial Court would help.
“The last thing in the world we should do is turn our back on our responsibility to correct this conflict between the statute that was passed and Maine’s constitution,” Thibodeau said. “Because the next election – and God forbid it’s any one of your elections that you’re in – could be turned upside down and we could leave our state in turmoil trying to figure out exactly who the winner of that election is.”
Other lawmakers argued that the law was already in effect and the state was not facing a so called “solemn occasion,” which is necessary under the state’s constitution for the Legislature to ask the court to intervene.
“I don’t think we have serious doubt about our power or authority because no real legislative action is before us at this time,” said Sen. Shenna Bellows, D-Manchester. “The legislative action was taken by the people in November.”
In ranked-choice voting, voters rank candidates in order of preference. If no candidate has more than 50 percent after the first tally, the candidate with the fewest votes is eliminated. Voters who chose the eliminated candidate have their ballots added to the totals of their second-ranked candidate and the ballots are retabulated. The process continues until one candidate has a clear majority and is declared the winner. The change would apply to races for the Legislature, the governor’s office and Maine’s four congressional seats.
Jamie Kilbreth, a Portland attorney working for the Ranked Choice Voting Committee, which advanced the ballot measure, said the Senate request was out of order.
“It is particularly troublesome since the proposed questions have no bearing on at least one of the critical components of the statute – federal elections,” Kilbreth said in a prepared statement. “These particular questions improperly attempt to drag the court into the political thicket of spending decisions the Legislature has to make routinely, as well as raising substantial separation of powers issues under Maine’s constitution.”
But even some lawmakers who said they support the ranked-choice ballot system agreed that it was in their best interests to seek an additional opinion before the next election.
Sen. Scott Cyrway, R-Benton, said the Senate needed to treat the new law like a newly purchased product.
“I think many of you have bought an item and you had directions to follow and a lot of times you just went and took it upon yourself to try the thing out and if it didn’t work you went back to the directions. And sometimes you even broke what you was working on and said, ‘Oh, I should have read the directions.'”
In this case, Cyrway said, the directions are the state’s constitution and the court can help make sure lawmakers understand them. Cyrway said it was only common sense to ask for help.
Also speaking in support of getting the court to weigh in was Sen. Roger Katz, R-Augusta. One way or the other, he said, the issue would be settled by a court.
Katz said the question hinges on whether the court will rule, as supporters of ranked-choice voting suggest, that a “majority” satisfies wording in the state’s constitution that suggests winners in statewide elections, including those for the Legislature and governor’s office, get only a plurality of votes, or the highest total among all candidates.
“No matter which side you come down on, there is a very, very real issue here,” Katz said. “This matter will end up in court. When was the last time a governor got elected with more than 50 percent of the vote? It’s been quite a while.”
Katz said the first legal challenge of the law could cripple state government while the case wends through the court system.
“We are talking about potentially months,” he said. Katz said the issue ultimately will end up before the high court. “Let’s at least find out if the court agrees if this is at least a solemn occasion,” Katz said.
Sen. Geoffrey Gratwick, D-Bangor, said he supports ranked-choice voting but agreed with his Republican colleagues that it is important for the court to make a determination.
“I have no idea which way the court will be resolving this,” Gratwick said. “I have strong feelings. I hope they resolve it in one particular way, in which case I’ll be pleased. If on the other hand they resolve it in the other way, I think we always have the option before us of amending the constitution.”
He said Maine has amended its constitution 172 times and that, while it is difficult to do, he believed changing the voting law to reflect the will of the people would “rise to that occasion. … This is simply giving us an initial step down whatever road we need to take to get ranked-choice voting,” Gratwick said.
There is no prescribed timeline for the court to respond. Once it formally receives the request, justices will be briefed on the issue. If the justices determine the question presents a solemn occasion, the court will then deliberate.
The justices could also ask to hear oral arguments, although it is not a legal requirement, according to Jim Cyr, a spokesman for Thibodeau. Cyr said typically the high court tries to address solemn occasion requests as soon as possible.