BANGOR — After listening to lawyers argue for more than two hours Wednesday about whether he should stop the vote count in Maine’s 2nd District congressional race, U.S. District Court Judge Lance Walker said he hopes to issue a ruling Thursday.
Secretary of State Matthew Dunlap, whose staff has been counting and scanning about 280,000 ballots for days, said he expects to finish the count Thursday.
So it is shaping up to be a big day for both U.S. Rep. Bruce Poliquin, the two-term Republican who has already declared victory, and his Democratic challenger, Jared Golden, who might have won.
Poliquin holds a narrow lead in the preliminary results that polls and political insiders say might vanish once Dunlap’s tabulator redistributes ranked-choice votes from the two other candidates in the race who came up well short. There are about 25,000 potential votes that could be redistributed to the two front-runners if the ballots indicate a preference for them.
Poliquin’s lawyer, Lee Goodman, an election law expert in Washington, argued in federal court in Bangor on Wednesday that redistributing the second or third choices of voters who backed independents Tiffany Bond or Will Hoar would be unconstitutional.
“We want to maintain the status quo,” Goodman told Walker, a judge recently approved by the U.S. Senate after President Donald Trump nominated him.
He asked Walker to stop the count immediately or at least to order Dunlap to wait on the court’s decision on the merits of Poliquin’s claim before shifting votes away from the two independents in a second round.
Walker called it “a curious case for relief,” but his questions and comments, often penetrating, did not provide a clear picture of how he might rule.
Assistant Attorney General Phyllis Gardiner, who represents the secretary of state, said the congressman’s request to block the count is “beyond the last minute” and unnecessary.
“There’s nothing magical that happens” when the numbers are totaled up, she said, and there is no reason for officials to cease the tally until it is over.
What all the legal drama means is that the election could be up in the air for a long time if Walker figures there is substance to Poliquin’s claims. Golden’s lawyers insisted Poliquin’s “novel and unsupported” case has no merit.
Complicating matters is that Maine’s ranked-choice voting has never been used in a federal election, so some of the issues raised might not have been considered before by a federal court.
Dunlap has been plowing ahead with the count. His staff checked and double-checked paperwork as ballots were scanned into a computer. Only about a dozen towns still need to be handled out of the 375 in the 2nd District.
Once the recounting is done, Dunlap will make a quick tabulation of all first-round votes and then make a final count after redistributing to Poliquin and Golden the second- and third-place votes they received from the ballots cast for Bond and Hoar under the ranked-choice system.
Dunlap said Wednesday afternoon the count would wrap up Thursday morning, and the ranked-choice tabulation would take place after he gives the candidates and news media a couple of hours of advance notice.
Poliquin declared himself the victor, citing unofficial first-round balloting showing him with as much as a 2,000-vote lead — a margin so close a recount might be in the future, as well.
There are a few firm deadlines ahead.
On Nov. 26, the law requires, Dunlap must certify the state’s election results. Gov. Paul LePage is required to certify those numbers by Dec. 14 so they can be delivered on time to the U.S. House clerk.
The newly elected House members take office Jan. 3. The House, which will be controlled by Democrats, has the power to decide who is eligible to be seated. So if there is an ongoing dispute, the House may take sides regarding who from Maine is allowed to serve.
None of the four candidates in the race appeared at Walker’s courtroom Wednesday morning, though lawyers for three of them showed up.
Poliquin said Wednesday on Facebook that continuing the ranked-choice count would give “multiple votes” to those who ranked the contenders and picked one of the two independents as their first choice.
Their subsequent votes, he said, “should not matter,” whether they sided with him or Golden.
“The process is flawed, creates tremendous confusion and is proving to be a recipe for disaster,” the two-term incumbent said.
He pointed out that while Maine voters as a whole endorsed ranked-choice voting twice, his 2nd District voted against implementing it in 2016 and again in June.
Whatever the outcome in Poliquin’s district, ranked-choice voting is the system used for this year’s congressional race. The confusion the lawmaker cited was minimal both at the polls and in counting the ballots.
Peter Brann, a Lewiston lawyer for Golden, told Walker that Poliquin waited too long to challenge the law.
“It’s too little, too late,” he said.
Goodman said the congressman could not sue sooner because he would not have had standing to bring the case because it was purely hypothetical until votes were cast.
Now that voting is done, he said, Poliquin has a clear interest in preserving what he said is the traditional, constitutional requirement that whomever wins a plurality of the vote should head to Capitol Hill.
Goodman argued that with a narrow lead in the preliminary, first-round count, Poliquin has a responsibility of fending off a voting “scheme” he insisted gave extra clout to some voters at the expense of others.
He said if ranked-choice voting violates the U.S. Constitution, the fairest remedy is to take the first-round results.
James Monteleone, a lawyer representing Bond in the court hearing, said it would be unfair to take the first-round results alone because voters cast their ballots in anticipation of ranked choices. He said if voters had known the system would not be used, Bond would not have stayed in the race.
Goodman said a possible remedy would be a special election in which Golden and Poliquin face off directly, akin to the runoff elections on which some Southern states rely.
But he raised legal doubts that even runoff elections are allowed under the Constitution since they ignore the first-round plurality that he argued is the measure mandated by the nation’s founders.
Brann said the nation’s blueprint gives state “incredibly broad authority” to decide how to conduct elections. He insisted Poliquin’s legal case implodes when considered correctly.
Gardiner said hitting the brakes on the ballot count would also undermine the election’s integrity and end up costing more.
Brann said Poliquin has suffered no harm from the new system so there is no need to stop a count that the Republican might ultimately win. Most insiders expect Golden will collect enough of the second choices of independent voters to emerge the victor.
Goodman said, however, there is “a serious case for relief” by a court because Poliquin and his voters are being subjected to a system not allowed in a federal election.
The state, Golden and other interested parties have until Dec. 4 to respond to Poliquin’s complaint.
According to legal experts, legal challenges to ranked-choice-like systems in other states have not fared well.
Several people watch Wednesday as officials with the Maine Secretary of State’s Office count ballots in the hotly contested 2nd District congressional race. (Joe Phelan/Kennebec Journal)
Officials with the Maine Secretary of State’s Office were nearing the end Wednesday in the count of ballots cast in the 2nd District congressional race. (Joe Phelan/Kennebec Journal)
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