AUGUSTA — Republican 2nd District Congressman Bruce Poliquin filed a federal lawsuit Tuesday against Maine’s Secretary of State Matthew Dunlap in an attempt to stop a retabulation of ranked-choice ballots in a race between Poliquin and Democratic challenger Jared Golden.
The suit filed in federal court in Bangor is asking for a permanent injunction against Dunlap, seeking to stop a process twice approved by Maine voters at the ballot box. Neither Poliquin nor Golden secured a majority of the vote in the first round of counting, which under the law pushes the tabulation to voters’ second choices in an attempt to reach majority support.
Joining Poliquin in the suit as plaintiffs are a handful of Republican voters, including the chairman of the Penobscot County Republican Committee, Brett Baber, who is an attorney from Veazie.
“Plaintiffs seek a preliminary and permanent injunction, expedited declaratory judgment, and other relief that will invalidate the challenged law and vindicate plaintiffs’ constitutional right to have federal election returns counted in accordance with traditional – and constitutional – procedures,” the complaint reads.
Poliquin held a press conference at the Maine State House on Tuesday afternoon and said he and other critics of ranked-choice voting believe the process could be “illegal” under federal law. “The people of the 2nd District have put their trust in me to do what’s right,” Poliquin said. “Not addressing this important constitutional issue would be completely irresponsible. I’ll tell you this would be a heck of a lot easier on me if I just walked away from this vote counting mess. But what kind of message would that send to our kids? Absolutely the wrong message.”
Republicans have long panned the state law as unconstitutional, although the state’s constitution remains silent on how federal elections should be conducted.
On Tuesday, Dunlap responded to the suit filing saying, “Litigation is part of the process. We don’t comment on pending lawsuits. We are focused on the work that we are doing. We will take our direction from the court.”
In a related development, the plaintiffs are also asking Dunlap’s staff to stop processing ballots ahead of a ranked-choice run-off expected to happen on Wednesday.
“Given this filing, we respectfully request that you preserve the status quo and cease further run-off calculations until such time as the court has had a chance to address plaintiffs’ constitutional concerns,” attorney Joshua Randlett wrote to assistant attorney general Phyllis Gardiner, who provides legal counsel to the Secretary of State’s office. “In our view, it is in the best interest of the people of the State of Maine as well as the Secretary of State to receive a definitive declaration on the constitutional issues before proceeding further with the ranked-choice voting tabulations.”
At 11:30 a.m., the Golden campaign issued the following statement:
“The candidates campaigned, and the people of Maine’s 2nd District voted in accordance with the law,” said Jon Breed, Jared Golden’s campaign manager. “Any attempt by Bruce Poliquin to change the rules after votes have already been cast is an affront to the law and to the people of Maine.
“If Rep. Poliquin’s concerns were anything other than in self interest, he should have filed this lawsuit before votes were cast, or when the Maine Republican Party challenged Maine’s election system last year.
“Bruce Poliquin knew the rules going into this election. The secretary of state must count every vote according to Maine law until a majority winner is clear.”
In their reply to the lawsuit, Golden’s attorneys said the litigation filed after the Nov. 6 election “seeks to invalidate the will of the voters” by blocking Dunlap from following state law.
“Poliquin could have joined his (Republican) Party’s challenge to this law before this court last spring, or he could have moved expeditiously to file his own challenge on the same grounds he now raises when his party’s challenge was not successful,” Golden’s attorneys wrote in their legal filing with the court. “Instead, he waited until after all of the ballots in the election had been cast, and now seeks to change the rules of that election, severely prejudicing the voters who relied upon RCV in casting their ballots, and the candidates who they supported, whether as their first or second choices.”
Amy Fried, chair of the Political Science Department at the University of Maine, responded earlier in the day, “During the campaign, Poliquin recognized the system and provided guidance on how his backers should vote. He did not say he considered it unconstitutional or that he would sue after the election to prevent voters (from) even finding out who won according to the election law in place last June and this November.”
Poliquin is leading Democratic challenger Jared Golden by roughly 2,000 votes, according to unofficial election results. The two-term Republican congressman and Golden – a Marine Corps veteran and state lawmaker from Lewiston – each have roughly 46 percent of the vote. But because neither received more than 50 percent, votes cast for independents Tiffany Bond and William Hoar – who received 8 percent combined – will be reallocated based on who those voters ranked second on their ballots.
On Monday, staff with Dunlap’s office continued scanning paper ballots from across the 2nd Congressional District, the largest and most rural district east of the Mississippi River. Ballot counting was ongoing Tuesday as the lawsuit was filed.
Digital files supplied by towns that scan ballots at the polling place already had been loaded into the system by Monday morning. Deputy Secretary of State Julie Flynn estimated that ballots from 150 towns that hand count ballots still had to be prepped and scanned into the computer system before all voting results could be run through the ranked-choice algorithm.
According to the complaint by Poliquin, “The RCV Act also violates Art. I, § 2 of the United States Constitution, which sets a plurality vote as the qualification for election to the U.S. House of Representatives,” reads the complaint.
“Instead of respecting this important constitutional principle, the RCV Act directly contravenes it by denying individuals who obtained the highest number of votes after the first round of balloting – in this case, Bruce Poliquin – from being declared the winner of the general election.”
Although Maine is the first state to use ranked-choice voting for congressional races, court cases nationally have ruled in favor of ranked-choice-type voting procedures in other states.
In a Facebook statement Tuesday, Poliquin wrote: “6 days and 15 hours after the polls have closed and because of rank choice voting we still have no final election result. This system only adds additional cost to taxpayers, creates overwhelming confusion for our citizens, and is ripe for mishandling and unlawful electioneering actions, as evidenced already. Mainers deserve better than their money being wasted, their frustrations growing, and their sacred right of voting being manipulated.”
There have been no findings by the courts or election authorities of unlawful actions or vote manipulation.
Phil Bartlett, chairman of the Maine Democratic Party, responded to the suit filing Tuesday saying, “Ranked choice voting is the law, and voters in Maine’s 2nd Congressional District cast their ballots with the clear understanding that their votes would be honored — including the order they ranked the candidates.
“The secretary of state must be allowed to count all the votes until a majority winner is declared, just as Mainers intended. Any attempt to change the rules now is a betrayal of our electoral system and the people of Maine.”
Besides Poliquin and Baber, the lawsuit was filed on behalf of two other 2nd District residents, Terry Hamm-Morris and Mary Hartt. None of the four plaintiffs ranked their votes during the November 6 election, according to their complaint.
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Melissa Packard, director of elections, cuts the wire on a seal before opening a ballot box as ranked choice voting tally for the 2nd Congressional District race continues onTuesday Nov. 13, 2018, in the Elkins Building in Augusta. (Joe Phelan/Kennebec Journal)
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