Maine must clean up the ranked-choice voting mess

What a mess.

That’s the only word I can find that fits the trials and tribulations of ranked-choice voting. Last week, the secretary of state and attorney general found mistakes in the people’s veto effort, which plunged our upcoming June election into chaos. Advocates filed a lawsuit; Secretary of State Matt Dunlap said he wouldn’t oppose a court order forcing him to continue preparations. And the Maine Senate decided to interject itself into the fray.

What a mess.

This all started in 2016, when those advocating for ranked-choice voting pushed their initiative through and onto the ballot. Their motives were good, attempting to provide — in their view — an improved process by which to choose our elected officials.

Kyle Bailey, campaign manager for the Committee for Ranked Choice Voting, speaks at a rally of supporters in February at the State House. The group delivered petitions aimed at thwarting a legislative delay and putting the voting system into place for state primaries in June. (AP Photo/Robert F. Bukaty)

Unfortunately, they conducted their campaign with some measure of misdirection. One of the major questions facing the proposal stemmed from the plain language of the Maine Constitution, added by our predecessors following a constitutional crisis. After Joshua Chamberlain stabilized the political environment, Maine enacted an amendment providing that a “plurality” — or the highest number of votes — would determine the outcome of an election.

Ranked-choice voting flies in the face of this. That is why many observers suggested the legislation was unconstitutional. However, in a nod to “Indiana Jones,” advocates waived this concern away. They insisted “top men” had reviewed the proposal and found it sufficient; voters therefore needn’t bother themselves about arcane constitutional provisions.

Ultimately, they were successful at the ballot box. But when the Maine Senate asked the Supreme Judicial Court whether the law was, in fact, constitutional, the seven justices unanimously said it was not.

Advocates claim this “non-binding, advisory” opinion is worth less than the paper it was printed on. They are incorrect. In this scenario, “non-binding” means the courts will not issue writs demanding the statute be stricken. It does not mean that a majority (at least four) justices of the Law Court will suddenly conduct an about face and scream “psych!” if a real lawsuit is filed. Rather, they have expressed their opinion of the law. It behooves us all to grant it great weight.

It need not be this way. The process by which ranked-choice advocates put forward their proposal — a referendum — was not originally part of our Maine Constitution. It was added in the so-called “progressive era” when respect for representative democracy was at its nadir. However, at that time, the so-called “progressives” utilized the process provided by the constitution to make the appropriate changes.

Ranked-choice advocates decided it would simply be too difficult to build a grassroots campaign to elect legislators in support of their favored policy and amend the Constitution. Instead, they put forward an unconstitutional law with numerous flaws and hoped the Legislature would accept the electoral results as fait accompli. However, the election which adopted the electoral change also entrusted 186 individuals with the authority to make law.

They decided to punt on ranked-choice voting pending the appropriate changes to our constitution. Advocates didn’t like that, so they filed a lawsuit. Dunlap was thus caught between the proverbial rock and a hard place. The problem was compounded by the mistakes made by ranked-choice advocates; their incorrect assessment of the Maine Constitution led them to write laws containing inherent contradictions.

Dunlap has tried to thread the needle of contradictory legal provisions. He stated that he has neither the authorization nor the fiscal capacity under Maine law to enact ranked-choice voting. Nevertheless, he stated that he would not oppose a court order requiring him to continue preparations for such an election. The Maine Superior Court has decided to let him proceed.

Unfortunately, the story does not end there. The Maine Constitution provides that the separation of powers is sacrosanct. When Dunlap admitted he did not have legal authority, whether provided by the law drafted by ranked-choice advocates or the Maine Legislature, to expend taxpayer dollars in pursuit of the law, he implied doing so would violate these inherent checks and balances.

What a mess.

We cannot ignore the constitution simply because a subset of Mainers — even a majority — believe it a good idea. Maybe ranked-choice voting is a great solution to a problem; maybe it is not. Regardless, our elected and appointed officials — executive, legislative, and judicial — take an oath to uphold and defend the constitution. Let’s hold them to their word.

And force them to clean up this mess.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.