Did Maine's 2016 ranked-choice voting initiative violate the state constitution by replacing the 'plurality of votes' rule with multiple rounds of counting?

Plain-English summary

Senate President Thibodeau asked AG Mills whether the citizen-initiated ranked-choice voting bill (LD 1557) was constitutional. The bill would replace Maine's existing first-past-the-post elections for US Senator, US Representative, Governor, State Senator, and State Representative with ranked ballots and multiple rounds of counting until a candidate received a majority.

Mills said the federal offices were fine: the Maine Constitution does not prescribe election procedures for US Senator or US Representative, so the legislature has plenary authority to set those procedures. The state offices were the problem.

The Maine Constitution provides that representatives, senators, and the governor are elected by "a plurality of all the votes" returned. The constitutional text describes a single-round count. Article V, part 1, § 3 directs the Governor to issue a summons to "such persons as shall appear to have been elected by a plurality of all votes returned" for the offices of Representative. Article IV part 2 § 3 says senate votes "shall be received, sorted, counted, declared and recorded, in the same manner as for Representatives," and Article IV part 1 § 5 spells out the count for representatives. The Maine Constitution thus contemplates a single, one-round count where the candidate with the most votes wins. Ranked-choice voting eliminates candidates and re-counts ballots round by round, which the AG concluded conflicted with the constitutional text.

The opinion noted that the office had received pushback against weighing in before the citizens voted on the initiative. The AG explained, citing Opinion of the Justices, 673 A.2d 693 (Me. 1996), that constitutional questions had often been answered before initiative votes (Palesky tax cap, term limits) and that this office's role was to inform legislators and voters of issues, not to tip the scales. The AG also flagged that other jurisdictions had upheld ranked-choice voting against federal equal protection and First Amendment challenges (Dudum v. Arntz (9th Cir. 2011); Minnesota Voters Alliance v. City of Minneapolis (Minn. 2009)), so the constitutional concern at the state level was distinctive to Maine.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Maine voters approved Question 5 (ranked-choice voting) at the November 2016 general election. The Maine Supreme Judicial Court issued a 2017 Opinion of the Justices confirming the AG's concern about state offices. The legislature ultimately limited RCV to federal general elections, US Senate primaries, and certain state primaries, leaving state-office general elections to plurality counts. Voters reconfirmed RCV in 2018. Anyone evaluating current Maine RCV authority should consult 21-A M.R.S. § 723-A, the most recent decisions of the Law Court, and any amendments to Article V part 1 § 3.

Historical summary

For state legislators (at the time): The opinion told the Legislature that LD 1557 had a state-constitutional problem only for state offices. Federal offices and primaries were within legislative discretion.

For citizen initiative organizers (at the time): The AG's view did not stop the initiative from going to voters (the Justices had said constitutional issues do not bar referendum), but it set up a likely legal challenge if voters approved it.

For election law researchers: The opinion is a careful textualist read of the "plurality" language in three different Maine constitutional provisions and is the foundation for the later 2017 Opinion of the Justices on RCV.

Citations and references

Constitutional provisions:
- Maine Constitution, Article V, Part 1, Section 3 (Governor; "plurality of all votes returned")
- Maine Constitution, Article IV, Part 1, Section 5 (Representatives)
- Maine Constitution, Article IV, Part 2, Sections 3-4 (Senators)
- Maine Constitution, Article IV, Part 3, Section 18, Clause 2 (initiatives)
- Maine Constitution, Article IX, Section 12 (voting precincts)

Cases:
- Opinion of the Justices, 673 A.2d 693 (Me. 1996) (initiatives go to voters even if unconstitutional as written)
- Opinion of the Justices, 2004 ME 54 (Palesky tax cap)
- Opinion of the Justices, 623 A.2d 1258 (Me. 1993) (term limits)
- Opinion of the Justices, 613 A.2d 696 (Me. 1992)
- Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011) (federal equal protection / First Amendment OK)
- Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2016/ag_20160304.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
JANET T. MILLS, ATTORNEY GENERAL

March 4, 2016

Hon. Michael D. Thibodeau
President of the Senate
3 State House Station
Augusta, Maine 04333-0003

RE: Ranked-choice Voting

Dear Senator Thibodeau:

You asked whether L.D. 1557, An Act to Establish Ranked-choice Voting, presents any constitutional concerns with regard to the provisions of the Maine Constitution applicable to elections for Governor (Art. V, pt. 1, § 3), State Senators (Art. IV, pt. 2, §§ 3-4), and State Representatives (Art. IV, pt. 1, § 5). The bill proposes a new method of determining elections for the offices of United States Senator, Representative to Congress, Governor, State Senator and State Representative, and for primary elections to determine the nominees for those offices. The Maine Constitution contains no specific provisions relating to elections for Congress or the United States Senate, and primary elections are created by statute. Accordingly, we will address only those issues relating to general elections for Governor, State Senate and State Representative.

Since L.D. 1557 is a citizen-initiated bill, it must be presented to the voters at the general election next November, with or without a competing measure, unless the Legislature enacts it without change this session. Me. Const. art. IV, pt. 3, § 18, cls. 2.

We have received comments from some legislators and others urging our office not to address the constitutionality of L.D. 1557 before the initiative is presented to the voters. The Justices of the Maine Supreme Judicial Court have advised that a citizen initiative must be submitted to the voters (if not enacted by the Legislature) even if it presents constitutional issues. See Opinion of the Justices, 673 A.2d 693, 697 (Me. 1996) (Congressional term limits initiative must be sent to voters at referendum election if not enacted by Legislature "notwithstanding the fact that the bill is unconstitutional as written"). Nonetheless, on several occasions the Justices have answered questions about the constitutionality of initiatives at the Legislature's request, before the voters had an opportunity to cast a ballot. See, e.g., Opinion of the Justices, 2004 ME 54, ¶¶ 5-7 (constitutionality of Palesky tax cap petition); Opinion of the Justices, 623 A.2d 1258, 1262 (Me. 1993) (constitutionality of initiative setting term limits for state officials). Attorneys General have also issued opinions on several occasions, even though it was likely that the office would be called upon to defend the proposed law if enacted by the voters.

By illuminating the constitutional issues presented by a bill pending before the Legislature or the citizens, we are in no way attempting to tip the scales at the election on the ballot question. Rather, we are simply providing information that legislators and voters may consider when voting on an initiated bill, as this office has often done in the past.

Relevant constitutional provisions

The process for the election of State Representatives is set forth in Article IV, part first, section 5 of the Maine Constitution (emphasis added):

The meetings within this State for the choice of Representatives shall be warned in due course of law by qualified officials of the several towns and cities 7 days at least before the election, and the election officials of the various towns and cities shall preside impartially at such meetings, receive the votes of all the qualified electors, sort, count and declare them in open meeting; and a list of the persons voted for shall be formed, with the number of votes for each person against that person's name. Fair copies of the lists of votes shall be attested by the municipal officers and the clerks of the cities and towns and the city and town clerks respectively shall cause the same to be delivered into the office of the Secretary of State forthwith. The Governor shall examine the returned copies of such lists and 7 days before the first Wednesday of December biennially, shall issue a summons to such persons as shall appear to have been elected by a plurality of all votes returned, to attend and take their seats.

The constitutional provision relating to the election of State Senators is worded in a similar manner and declares that the votes "shall be received, sorted, counted, declared and recorded, in the same manner as for Representatives." Me. Const. art. IV, pt. 2, § 3 (emphasis added).

The constitutional provision relating to the election of Governor is in Article V, part first, section 3 of the Maine Constitution (emphasis added):

The meetings for election of Governor shall be notified, held and regulated and votes shall be received, sorted, counted, declared and recorded, in the same manner as those for Senators and Representatives. Copies of lists of votes shall be sealed and returned to the Secretary of State's office in the same manner and at the same time as those for Senators. The Secretary of State for the time being shall, on the first Wednesday after the first Tuesday of January then next, lay the lists returned to the Secretary of State's office before the Senate and House of Representatives to be by them examined, together with the returned copies, if they see fit, and they shall determine the number of votes duly cast for the office of Governor, and in case of a choice by plurality of all the votes returned they shall declare and publish the same.

How L.D. 1557 proposes to change the election process

L.D. 1557 proposes a ranked choice voting method for the offices of United States Senator, United States Representative to Congress, Governor, State Senator and State Representative. The bill would also use ranked choice voting for primary elections.

For each office, voters would be allowed to rank candidates in order of choice. If, after the first round of counting, no candidate received a majority of the votes cast, then in subsequent rounds the candidate with the fewest votes would be eliminated, and the votes for that candidate would be redistributed to the next-highest-ranked candidate on each ballot. This process would continue until a candidate received a majority of the votes still being counted.

Constitutional issues presented by ranked-choice voting

The constitutional provisions relating to the election of Governor, State Senator and State Representative speak in unmistakable terms. They provide that the candidate elected to each of these offices is the candidate who receives "a plurality of all the votes" or a "plurality of all votes returned." The plain meaning of "plurality" in 19th-century American English (when the relevant constitutional language was adopted) is "[t]he number by which the votes cast for the candidate receiving the greatest number exceeds those cast for the next highest candidate." American Heritage Dictionary of the English Language (4th ed. 2000) at 1351. "Plurality" means a number that is greater than each other competing number, but not necessarily a majority.

Ranked-choice voting is a different procedure. It does not declare the candidate with the highest number of votes the winner. Instead, it eliminates candidates round by round and redistributes their votes until one candidate has a majority. A candidate who would have been declared the plurality winner under the constitutional procedure may be eliminated, or may lose, in a later round.

The Maine Constitution does not require a winner to receive a majority of the votes. The Constitution makes clear that the winner is the candidate with the most votes after a single round of counting. If no candidate has a majority, this is not a constitutional problem; it is the constitutional resolution.

Ranked-choice voting also conflicts with the Maine Constitution's provisions for handling the receipt and counting of votes. Under L.D. 1557, ballots would be transmitted to the Secretary of State's office for centralized tabulation. The Constitution, by contrast, provides that votes for the offices of State Representative shall be received, sorted, counted, declared and recorded by local election officials. Me. Const. art. IV, pt. 1, § 5. By contrast, the Secretary of State does have authority to count absentee ballots of military and overseas voters under article IX § 12.

In summary, our office concludes that L.D. 1557 presents serious constitutional issues for the offices of Governor, State Senator and State Representative. The bill conforms to the Maine Constitution in its application to elections for United States Senator and United States Representative to Congress, and to primary elections.

Conclusion

We hope this information is useful to legislators and voters in evaluating L.D. 1557.

Sincerely,

Janet T. Mills
Attorney General

(Footnote: We do not address any federal constitutional issues here, except to note that courts in other jurisdictions have generally rejected challenges to ranked-choice voting based on equal protection and First Amendment grounds. See, e.g., Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011) (upholding the city of San Francisco's restrictive instant runoff voting system); and Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009) (upholding city's instant runoff voting system).)

(Footnote: In each instance, some of the Justices declined to answer the questions presented believing that no inquiry into the substantive constitutional validity of an initiated bill should be addressed before the referendum election. See Opinion of the Justices, 2004 ME 54, ¶¶ 38-39 (answer of Justices Clifford, Rudman and Alexander); Opinion of the Justices, 623 A.2d at 1264 (answer of Justices Glassman and Clifford); Opinion of the Justices, 613 A.2d at 696 (answer of Justices Glassman, Clifford and Lipez).)