MAINE—Lawyers for Republican U.S. Rep. Bruce Poliquin and the Democrat who defeated him will square off in federal court Wednesday in a case with ramifications far beyond Maine’s rural, sprawling 2nd District no matter the outcome.
For U.S. Rep.-elect Jared Golden and supporters of ranked-choice voting, the election ended two weeks ago after the Democrat emerged from an instant runoff leading Poliquin by 3,509 votes. Yet Poliquin and his team are aiming for more than just a reversal of the election results as they push to make Maine the national, legal test case for ranked-choice voting in any federal election.
“Whether a state can go beyond a plurality that is currently provided for in (the Constitution) is an open question the Supreme Court has never decided,” Lee Goodman, Poliquin’s attorney and a former chairman of the Federal Election Commission, said last month.
Poliquin’s legal case already appears to be on shaky ground, at least here in Maine. The federal judge hearing the case has questioned some of Poliquin’s constitutional arguments, and several legal and constitutional scholars have predicted the case will fail.
But Goodman’s reference to the nation’s highest court signals his team is already looking beyond U.S. District Court in Bangor, where both sides will plead their cases this week. Poliquin, a two-term Republican, is also requesting that the judge order a new election, and has formally asked for a hand recount by the Maine Secretary of State’s Office. Neither effort appears likely to succeed.
Poliquin insisted that the legal fight was about more than him protecting his own job.
“This is just the beginning of the legal process,” Poliquin said last week. “My responsibility is to uphold the Constitution of the United States of America, and part of that is making sure that everybody has the right to vote freely and legally. This has never been tested before.”
Legal headwinds
Poliquin and Goodman are correct that the utilization of ranked-choice voting in a congressional election has never been tested in federal court. Ranked-choice voting itself has been litigated in numerous local cases, however, as have central arguments of Poliquin’s case – namely, that congressional elections should be decided by a plurality and that such instant runoff elections game the system by giving voters more than one vote.
Based on those previous rulings, Poliquin faces stiff legal headwinds.
“To the extent he is making any ‘one-person, one-vote’ arguments, every court – and there have been a number of them – has rejected that argument,” said Steven Mulroy, a professor at the University of Memphis School of Law who studies ranked-choice voting.
The U.S. Constitution gives states broad discretion to run their own elections. Article 1, Section 4 of the document, for instance, declares that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”
Under ranked-choice voting, which Mainers have endorsed twice at the polls, voters are allowed to rank contenders in order of preference on their ballots. Those preferences only come into play if no candidate receives majority support on the first vote tally. In such situations, the candidate with the fewest votes is eliminated and their supporters’ votes are reallocated to the candidates they ranked second.
That process continues – with candidates eliminated from the bottom up – until one candidate secures a majority of the remaining vote pool.
Poliquin entered the Nov. 15 runoff leading Golden by more than 2,600 votes based on the first tally of ballots cast on Election Day, However, Golden surged past Poliquin after the second- or third-choice preferences of two independents in the race – Tiffany Bond and William Hoar – were reallocated to the two front-runners during the ranked-choice runoff.
A Marine Corps veteran and state lawmaker from Lewiston, the 37-year-old Golden has already participated in events in Washington as he prepares his transition to office. Meanwhile, the Maine battle over ranked-choice voting is being closely monitored in other states.
In their lawsuit, Poliquin’s legal team seizes on another section of the Constitution – Article 1, Section 2 – to argue that House elections are won by whoever receives a plurality – or the most – votes rather than the majority required under Maine’s ranked-choice voting law. They rely on a 1970 U.S. Court of Appeals ruling out of New York state to support that interpretation.
“The U.S. Court of Appeals for the 2nd Circuit says that for 140-plus years, ‘chosen by the people’ has meant a plurality of the vote,” Goodman said. “Now the question we raise is: Can the state of Maine alter or raise the standard set as interpreted by the 2nd Circuit?”
Supporters of ranked-choice voting as well as legal experts contend that’s a misreading of both the Constitution and the Phillips v. Rockefeller case in New York, however.
In the case, the justices wrote that congressional elections “need not be a majority of the votes cast.” But neither did the appellate court “require” a plurality of votes, instead writing that New York’s laws and state constitution “demonstrate a policy in favor of permitting elections by a plurality.”
U.S. District Judge Lance Walker, who is hearing Poliquin’s case in federal court, was unconvinced of the Republican’s initial arguments. Walker rejected a request to halt the ranked-choice runoff last month after determining Polquin’s team had not demonstrated they were “more likely than not” to succeed on the constitutional arguments, although he allowed the larger case to proceed to oral arguments.
“In fact, it appears that both majority and plurality standards have historical antecedents in American politics,” Walker wrote. “In short, on the current showing, it appears equally plausible that Article I, section 2, when read in conjunction with Article I, section 4, affords the states sufficient leeway to experiment with the election process in the manner that is presently under consideration.”
Maine is first in nation
Maine is the first state to use the ranked-choice process in statewide or federal elections after voters endorsed the process via two separate ballot initiatives. More than a dozen cities – including Portland – as well as some political parties already use the process for local elections or primaries, however.
Courts have consistently upheld ranked-choice voting when considering legal challenges.
Perhaps the most pertinent, according to observers, is a 2011 case out of San Francisco that is among the only ranked-choice lawsuits to make it to federal court.
The San Francisco case centered on whether the city could legally limit the number of candidates to three on a ranked-choice ballot. But some of the arguments in the case echoed those being made by Poliquin’s team, specifically the notion that ranked-choice voting violated the constitutional guarantees of “one-person, one-vote” or equal protection.
“There is nothing about the claims that the plaintiffs (Poliquin’s team) are making that are specific to federal races that I can tell,” said Drew Penrose, law and policy director at FairVote, a nonpartisan election reform organization. “They are making due process claims that apply to all elections.”
In both cases, attorneys argued the system effectively allows some voters to cast more ballots than others because their second- or third-choice preferences might factor into a ranked-choice runoff. Specifically, Poliquin’s attorneys argued that people who only voted for the congressman and opted not to rank other candidates had their votes “diluted by the multiple votes that others are able to cast for different individuals.”
Penrose said the 9th Circuit Court of Appeals clearly rejected that notion because voters’ ranked-choice preferences are counted separately – not simultaneously – in rounds.
“No voter ever has two votes,” Penrose said.
Mulroy, the University of Memphis constitutional law professor, also doubted the merit of the equal protection arguments based on court rulings in San Francisco and other ranked-choice lawsuits. Every voter, Mulroy said, “has an opportunity to have their votes counted and weighted like everyone else” regardless of whether they opt to rank or not rank candidates on the ballot.
“When it comes to equal protection, ‘one-person, one-vote’ and those kinds of constitutional requirements, the analogy is the same whether you’re talking about a federal election or a local election,” Mulroy said.
For those reasons, and others, Mulroy said it seemed “a stretch” to him that Poliquin’s case would succeed in the lower federal courts.
“But if it makes it all the way to the Supreme Court level, there is no telling because the Supreme Court is not bound by legal precedent,” Mulroy said.
U.S. Rep. Bruce Poliquin, at a news conference in November, 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. (Joe Phelan/Kennebec Journal)
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