Attorneys were back before the Maine Supreme Judicial Court on Tuesday to argue an appeal in a case that will decide whether the state uses ranked-choice voting in the November presidential election.
The court heard arguments in an appeal of a Cumberland County Superior Court judge’s decision to allow state voters to weigh in on the question. Backers of the people’s veto initiative hope voters will overturn a 2019 state law that extended ranked choice to presidential primary and general elections.
The court last week blocked that ruling, which would have allowed the question to go to voters in November. That means Maine Secretary of State Matt Dunlap will prepare ballots that include a ranked-choice voting format in the presidential contest, but not the people’s veto question.
If the law stands, Maine will be the first state to use the system in presidential contests. But depending on the appeal argued Tuesday, state voters could still decide at a later date whether ranked choice will be used in presidential contests.
The case is important because it could affect how the state’s Electoral College votes are awarded in November.
Republicans have staunchly opposed ranked-choice voting, and they circulated petitions statewide to force a referendum on whether to overturn the 2019 state law allowing it in presidential contests.
But the referendum drive was derailed when Secretary of State Matt Dunlap disqualified more than 1,000 petition signatures on procedural and legal grounds, leaving petitioners short of the 63,067 signatures needed to qualify for the November ballot.
At issue in the court case is whether some of the people gathering the signatures were qualified to do so and whether the state’s requirement that they be registered voters in the town where they live infringes on their free speech rights under the U.S. Constitution.
Patrick Strawbridge, an attorney for voters who signed the petition, argued that this requirement violates those rights. The circulators in question did properly register to vote before turning in their petitions to the state, Strawbridge said.
Asked by justices why registering to vote in their towns is too burdensome before collecting signatures, but not after, Strawbridge said that was in part because of Maine’s liberal voter registration laws.
Because Maine allows voters to register on the day of an election, residents tend not to be too concerned about updating their registration if they change addresses. “They will always have the opportunity to do that at the polls on the morning of the election,” he said.
Strawbridge said the only time voters must be certain they are properly registered is if they are circulating petitions.
But Acting Chief Justice Andrew Mead pushed back. “The petition-gathering drive people have the statute, they have the law there. There is no burden in registering. You go down to your town office, you fill out a two-side card. There’s no burden to that at all.”
Also responding was Maine Assistant Attorney General Phyllis Gardiner, representing Secretary of State Matt Dunlap’s office in the case.
Gardiner said the burden question was never brought before the lower court, but if it had been, evidence would show the referendum backers had no difficulty finding properly registered voters to circulate petitions, and they did not contest that requirement.
“That’s been our argument all along,” Gardiner told Mead, “that these petitioners did not present this constitutional challenge, it was not litigated, there was no factual development to assess burden.”
In August, Cumberland County Superior Court Justice Thomas McKeon overturned Dunlap’s determination that some of the signatures were invalid because they were collected by people who were not registered to vote where they lived, as required by the state constitution.
McKeon determined the constitution only requires petition circulators be registered voters when they turn in their petitions. Dunlap appealed McKeon’s ruling, leading to Tuesday’s proceeding.
The Committee for Ranked Choice Voting is also appealing McKeon’s ruling. James Monteleone, an attorney for the committee, said the court should reject the argument that signatures from circulators who were registered to vote, but not in their town, are valid.
“Failure to update that locality of registration, in effect, means a voter is no longer actively registered,” Monteleone said. “Although they may have believed they were Maine voters, there is no such thing as a Maine voter, there is only a voter in a municipality and once they move that registration is gone.”
The people’s veto question would only apply to using ranked choice in presidential elections and would not stop its use in congressional contests, or in primaries for the Legislature and governor’s office.
The high court last week put on hold the lower court’s decision while it decides the appeal.
The Supreme Judicial Court has until Sept. 24 to make its decision but Mead said Tuesday it will expedite its ruling.
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