Is Ranked Choice Voting constitutional? Looks like a great big thunderous YES.
I wrote earlier about the need for Maine to adopt Ranked Choice Voting – Question 5 – for statewide offices (and it would make us the first state in the union to do so!), and I sense at this point that everyone in Maine who can fog a mirror knows roughly what it is. But if you want a quick refresher, check this out (as posted by Sen. Dave Miramant on his Facebook page):
Just to get the words right: It’s RANKED CHOICE VOTING, not RANK CHOICE VOTING. “Rank Choice” (“Rank” in this case meaning putrid, fetid, stinky) could easily refer to this year’s presidential options, but since many of you may disagree I’ll end this brief attempt at mordant wit right here. But as an ardent Bernie supporter I am despairing of the choices, and still am not sure how I’m going to vote (no unsolicited advice, please). Fortunately, I have plenty of company: a recent Pew poll found that 55% of voters were “disgusted” with the election. They find it, well, rank.
So it’s Ranked Choice Voting, not Rank Choice.
Will Maine voters approve RCV?
According to a recent Portland Press Herald poll reported Sept. 29, the answer is a resounding uh huh. 48% say they’ll vote for it, 29% against it, with 23% still undecided. What’s more, vast numbers of local and state officials, both Republican, Democrat, Green and Independent, are backing the initiative. Support is broad and nonpartisan, which can’t be said for many of the other ballot questions. The 23% undecided is a bit disconcerting, but many of these are likely under-informed voters who still have some time left to get with the program.
“In my opinion, the concerns about constitutionality are red herrings and nothing more.” – (me, and a few others)
Different people have different views of whether RCV will pass constitutional muster, but by a huge majority legal experts say it is constitutional. Many say that so much hinges on proper definition of the word “plurality,” which Maine’s constitution uses widely in determining winners of elections. “Plurality” is often equated with the principle of “first one past the post,” rather than first to get a majority of votes. But a plurality is the most number of votes for a candidate, which is often a simple majority. RCV assures that the ultimate winner will receive a majority of votes, which is also a plurality.
In four other states where RCV (for specific towns, counties, etc.) was constitutionally challenged, courts approved RCV as constitutional in all four cases. Now it’s our turn.
Maine AG Janet Mills, in a lengthy letter of legal exegesis to Senate President Michael Thibodeau last March, was barely lukewarm about RCV’s legal chances. But then, she has vigorously opposed it on previous occasions. She ended her letter thus:
Well, I’m not sure how a Constitution can “contemplate” anything… I also like the enabling words “may not” in the middle paragraph. In the end, what I see is a jaundiced view of RCV, but with some legal wiggle room.
Onward. Dmitry Bam, Constitutional Law scholar at the Univ. of Maine, notes that one of the issues is how votes are counted (in RCV, some second and third choice votes will count toward certain candidates). He writes:
Dmitry Bam, Assoc. Professor, UMaine Law School
When assessing the constitutionality of legislation touching on election administration, it is important to distinguish between two independent questions. The first question deals with the counting of the ballots—how the ballots will be designed, collected, and tabulated to reach the final vote count. The second question deals with what happens once the votes have been fully tabulated. Maine’s Constitution has various provisions addressing both of those questions. However, the numerous references to the word “plurality” that have been invoked to question the constitutionality of RCV address only the latter question. In essence, the plurality provisions require that, once the votes are tabulated, the person with the most votes be declared the winner, even if that person has not received more than 50% of the total vote. But these provisions cannot be interpreted to apply to the method of counting the votes.
That’s one argument favoring the legality of RCV. He also reminds us that “the structure of the Constitution is consistent with leaving fundamental electoral decisions to the people,” adding —
One key constitutional purpose is to limit the power of elected officials to engage in self-dealing. The correct reading of the Plurality Clause does so, requiring our elected officials to follow the will of the people… In the context of electoral reform, deference to the people is particularly appropriate. Choosing the “best” electoral system is inherently a political choice. And while many states and nations have adopted a first-past-the-post approach, there are many others that have not. Therefore, unless the Constitution clearly forbids it, the people should be free to experiment with alternative methods of vote counting.
“the claim of unconstitutionality is nothing more than rank speculation.” – Jamie T. Kilbreth
Jamie T. Kilbreth
Finally, Jamie T. Kilbreth, attorney at Drummond Woodsum in Portland and Maine’s former Chief Deputy Attorney General, lines up squarely behind RCV’s legality with several arguments similar to Bam’s. Of note:
…the Constitutional provision that has been identified as an obstacle to RCV was not intended to enshrine a plurality as a standard set in stone as has been suggested. Rather, it was aimed at eliminating the perceived evil of an election being decided by the Legislature rather than by the people in cases where no candidate had received a majority.
So RCV has a fine chance of dovetailing harmlessly into Maine’s Constitution as it stands, without the need for an amendment. The best place to go to learn more about all this is RCVMaine.com. They have the issue well covered.
GOTV for RCV!
RCV should pass in November, and it should also survive any legal challenges at the state level. But it does need a strong turnout to defy the last-ditch down-and-dirty efforts of the naysayers to scare us away from it. If you want to help phonebank or canvass on its behalf, check in with FairVote’s Ginny Schneider at 207-613-4733 or Ginny@fairvote.org. Thanks!
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