Authored on October 01, 2020

The Maine Supreme Judicial Court on Thursday denied a request to delay a decision it made on a ranked-choice voting in September while the Maine Republican Party appeals the ruling to the U.S. Supreme Court.

The party wants the opportunity to argue before the Supreme Court that the state court’s decision violates the First Amendment right of petitioners who gathered voter signatures for a “people’s veto” referendum. The ballot question would ask voters if they want to overturn the 2019 law that applies ranked-choice voting to the presidential election.

But the court, in a ruling issued just hours after oral arguments, said the plaintiffs hadn’t met the legal test to support a delay in its decision, including that the public interest would not be harmed by a delay, noting that voting already has begun by absentee ballot and citing the confusion that would be caused by trying to change the existing ballot.

“The public has a strong interest in using ranked-choice voting if – as the secretary of state determined and we affirmed – the proponents of the people’s veto did not obtain enough valid signatures …”  the court said in its ruling.

Nonetheless, the Maine Republican Party still plans to pursue an appeal of the Supreme Judicial Court’s decision before the U.S. Supreme Court, said Jason Savage, the party’s executive director. The Supreme Court is not bound to hear an appeal.

Voting has already started in Maine, and thousands of voters are returning completed absentee ballots that use the ranked-choice format.

The Maine Republican Party’s request was its latest effort in a running legal battle with state election officials. The party has spent $526,000 trying to collect enough valid signatures to put the question to voters, with about half of that amount spent on out-of-state consultants.

Secretary of State Matt Dunlap invalidated about 1,000 of the voter signatures, leaving petitioners short of the number needed to secure a spot on the ballot, and the state’s high court upheld Dunlap’s actions last month by overturning a lower court ruling against him. Ballots that were recently printed for the Nov. 3 election provide the ranked-choice option.

Workers roll a cart of ballot boxes into a counting room for ranked-choice voting tabulation in the 2nd Congressional District Republican primary in July. Joe Phelan/Kennebec Journal Buy this Photo

Patrick Strawbridge, an attorney representing four voters on behalf of the Maine Republican Party, said in an oral hearing Thursday that his clients recognized they were putting the state’s justices in a dilemma.

“Petitioners acknowledge that this request presents the court with a difficult choice given (Dunlap’s) last-minute decision to proceed with the printing and distribution of ballots using a ranked-choice format and excluding the proposed ballot question,” Strawbridge said.

Strawbridge said there was still time to inform voters of the change and avoid any confusion. Voters will also use the ranked-choice format for races for the U.S. Senate and two U.S. House seats.

But Acting Chief Justice Andrew Mead questioned Strawbridge about putting ranked-choice on hold, since ballots were already being distributed and voters were already voting absentee.

“These folks have voted already and are receiving more and more ballots every day,” Mead said. “Hasn’t this train already left the station? The voting has started. If we attempt to claw back those votes and create a new voting plan using the existing ballot, aren’t we creating confusion?”

Dunlap first rejected petitions for the people’s veto measure in July. He reaffirmed that decision in August, determining, among other things, that about 1,000 voter signatures on the petition were invalid because those gathering the signatures were not registered to vote in the towns they lived in while gathering signatures, as is required by the Maine Constitution.

The state’s constitution also stipulates that any law that’s subject to a people’s veto referendum is put on hold until a vote on the veto takes place during the next statewide election. But Dunlap’s decision left the petition shy of the 63,067 registered voter signatures needed to place the question before voters this November.

After a Cumberland County Superior Court justice overturned Dunlap, the state’s supreme court upheld him on appeal and the secretary of state printed ballots that will make Maine the first state to use ranked-choice voting in a presidential election on Nov. 3.

Maine voters have twice approved ranked-choice voting in statewide ballot measures and a federal judge in Maine’s U.S. District Court has also twice upheld constitutional challenges to the law. The current case marks the third time an issue involving ranked-choice voting has been before the state’s high court.

The legal battle comes at a time when voter anxiety is high and the use of absentee ballots will be widespread in Maine by voters trying to guard against the spread of COVID-19.

It also comes at time when President Trump and many of his Republican allies have made unfounded charges of a fraudulent mail-in balloting and a “rigged” election, undermining confidence in the election system.

The case is additionally important because it could affect how the state’s four Electoral College votes are awarded in November. Maine awards one vote to the winner of each of its two U.S. Congressional Districts and two votes to the winner of the contest statewide.

In 2016 Trump won Maine’s more rural and northern 2nd Congressional District, earning one of the four votes. This year’s election, pitting Trump and Democratic challenger former Vice President Joe Biden, features five presidential candidates in Maine.

This sets up the possibility that neither Trump nor Biden will capture more than 50 percent of the vote in 2nd District, where the polls show a tight race. Under the new law, voters’ second and even third ballot choices could become a factor.

Ballots that include a ranked-choice format in the presidential race – more than 56,000 of them – are already being distributed to absentee voters, Phyllis Gardiner, a state assistant attorney general representing Dunlap’s office, said during Thursday’s hearing. Additionally, at least 2,300 absentee voters overseas or in the military had already returned their ballots, she said.

If the court stopped the use of ranked-choice voting now it risked disenfranchising those voters, Gardiner said.

Justice Ellen Gorman asked Gardiner if new ballots could be distributed to any of the voters who have already cast their ballots under the ranked-choice voting method.

“Is that a possible scenario?” she asked.

Gardiner said that would be impossible now that ballots are being sent out and returned every day.

“To even try to keep up with who would need to be issued a replacement ballot would be extremely difficult and they would be crossing literally in the mail,” she said.

Gorman also questioned James Monteleone, an attorney for the Committee for Ranked Choice Voting, an intervenor in the case supporting Dunlap’s decision.

Gorman asked whether the state high court had a responsibility to ensure it made the right decision by staying its ruling while the case is appealed to the U.S. Supreme Court. Monteleone said it was far too late for that now, given that thousands of voters will already have used their ranked-choice ballots by the time the case could be heard – providing the U.S. Supreme Court even agrees to hear it.

He said if the state court recanted now, it would add to the ongoing efforts Trump and his allies are making to cast doubts on the integrity of U.S. election systems.

“This comes in the context of the dynamic that we are currently experiencing in this election, where aspersion is being cast about the integrity of the election process. The ability to trust the result of the election process,” Monteleone said.  “Undercutting that count of how voters have already cast their ballots spins it into chaos.”