2016 Maine Question 5

Maine Question 5, formally An Act to Establish Ranked-Choice Voting,[2] is a citizen-initiated referendum question that qualified for the Maine November 8, 2016 statewide ballot. It was approved by a vote of 52% in favor, 48% opposed.[3] It sought to change how most Maine elections will be conducted from a plurality voting system to a ranked-choice voting system (RCV, also known as instant runoff voting). It appeared on the ballot along with elections for President of the United States, Maine's two U.S. House seats, the legislature, five other ballot questions, and various local elections. The referendum was successful, making Maine the first state to use ranked choice voting for its federal elections.

Question 5: Citizen Initiative
An Act To Establish Ranked-Choice Voting
Results
Votes %
Yes 388,273 52.12%
No 356,621 47.88%
Valid votes 744,894 96.53%
Invalid or blank votes 26,814 3.47%
Total votes 771,708 100.00%
Registered voters/turnout 1,058,444 72.91%
Source: Maine Secretary of State[1]
Elections in Maine

An advisory opinion by the Maine Supreme Judicial Court, issued on May 23, 2017, stated that the court would rule ranked-choice voting unconstitutional if it came before them, with respect to elections for state offices. This led the Maine Legislature to vote to delay its implementation until 2021 to allow time for a Constitutional amendment to be passed to permit it. Supporters gathered signatures to force a successful people's veto referendum on the matter in order to prevent the delay.

Background

In the eleven Maine gubernatorial elections prior to 2016, only two candidates (incumbent governors Joe Brennan in 1982 and Angus King in 1998) won more than 50% of the vote.[4] Typically gubernatorial elections have more than two significant candidates; the 2010 election had five candidates, with Paul LePage emerging as the winner with 37.6% of the vote.[5] Some public opinion felt that his victory was due to opponents of LePage dividing their votes between Democratic candidate Libby Mitchell and independent candidate Eliot Cutler.[6]

Proposals to enact ranked-choice voting have been introduced in the legislature as early as 2003, but were rejected.[7][8] After a 2010 charter change, the city of Portland began electing its mayor using ranked-choice voting in 2011. There were new legislative proposals in 2011, though they were rejected as well.[9] In 2014, upon releasing his supporters to vote for someone else in the 2014 election, Eliot Cutler encouraged his supporters to support ranked-choice voting.[10] Led by former independent State Senator Dick Woodbury, Ranked Choice Voting collected more than the 61,123 valid signatures necessary to put a proposal to voters, collecting some 40,000 on Election Day 2014. The group collected 75,369 signatures and delivered them to Maine Secretary of State Matthew Dunlap by October 19, 2015. Dunlap ultimately certified 64,687 signatures by November 18, 2015, which put the proposal on the November 2016 ballot.[11]

Per the Maine Constitution, the proposal went to the legislature in its 2016 session, but it did not act on the measure. On January 20, 2016, the Maine House of Representatives voted to place the proposal on the ballot without holding a public hearing, over the objections of Republicans, led by Rep. Heather Sirocki, expressing concern about the constitutionality of the proposal.[12] Secretary of State Dunlap released the final wording of the question on June 23 as it was to appear on the ballot: "Do you want to allow voters to rank their choices of candidates in elections for U.S. Senate, Congress, Governor, State Senate, and State Representative, and to have ballots counted at the state level in multiple rounds in which last-place candidates are eliminated until a candidate wins by majority?"[13]

Constitutionality

Some, including a deputy secretary of state and a state legislator, expressed concern about the constitutionality of the proposal. Deputy Secretary of State Julie Flynn said that the Maine Constitution requires that the governor and state legislators be elected with a plurality of votes and that a system based on ranked-choice voting could be challenged in court. (The state constitution was amended in 1847, 1875, and 1880 to choose winners by plurality for house, senate, and governor, respectively.[14] Previously, an election with no majority winner would be decided by multiple election rounds or by the state legislature.)

Flynn also expressed concern that the proposal inserts the secretary of state into the process, while the Constitution states that votes shall be tabulated by municipal officials.[12] Maine Attorney General Janet Mills issued an opinion at the request of Maine Senate President Michael Thibodeau stating that while the referendum must appear on the ballot, it will likely require amending the Maine Constitution to implement it, in order to satisfy the concerns given by the Secretary of State's office.

She added that the manner in which the proposal addresses how a tie in the voting should be addressed, drawing lots, directly conflicted with Article V of the Maine Constitution, which states that a tie in the vote for governor would be settled by the Maine Legislature meeting in joint session to choose a winner.[15]

The Committee for Ranked Choice Voting Maine dismissed such concerns, noting that a majority vote is always a plurality vote and that such a system has survived legal challenges in several other states. Its website statement also linked to statements by several Maine law professors supporting its arguments.[16]

After the question was approved by voters, the Maine Senate submitted questions to the Maine Supreme Judicial Court, which issued an advisory opinion on May 23, 2017. They unanimously ruled that ranked-choice voting was unconstitutional in state, but not federal, general elections. In response, the legislature passed a law on November 4, 2017, that amended the ranked-choice voting law to apply only to primary elections for Congress, governor, state senator, and state representative; and for general elections for Congress.[17]

The law survived a legal challenge in federal court by U.S. Representative Bruce Poliquin, who lost reelection by ranked choice voting to Jared Golden in 2018. [18]

Campaign

Supporters of the proposal, led by Ranked Choice Voting Maine, contend that it will lead to people voting for the candidate that they support and end strategic voting to vote merely for the candidate that they think will win, and that the ranked choice system will result in a candidate that has some level of support from a majority of voters. They further contend that ranked-choice voting will result in less negative campaigning, as candidates will need to appeal to a broad coalition of voters beyond their base of supporters to gain support as a second or third choice, if needed.

Notable endorsements

Supporters
Current and former state legislators
Mayors
Other politicians and individuals
Media

Opponents

Polling
Date of opinion poll Conducted by Sample size
(likely voters)		 Yes No Undecided Margin of Error
October 20–25, 2016[31] University of New Hampshire 761 49% 31% 20% ±3.6%
September 15–20, 2016[32] University of New Hampshire 506 48% 29% 23% ±4.3%

Maine Supreme Court ruling

On February 3, 2017, the Maine Senate voted 24–10 to ask the Maine Supreme Judicial Court for an advisory opinion as to the constitutionality of the approved proposal, after concerns about its constitutionality were expressed by Maine Attorney General Janet Mills.[33]

On May 23, 2017, the Court issued its opinion that the law would be unconstitutional if it came before them, stating it would violate the provision of the Maine Constitution requiring elections to be decided by a plurality of the vote.[34] State legislators had mixed reactions to the ruling, with Senate President Michael Thibodeau calling for the law to be repealed and Democratic State Sen. Catherine Breen stating she would propose a Constitutional amendment to permit the law.[35] The legislature's Veterans and Legal Affairs Committee on June 8 reported out to the floor five bills in reaction to the ruling, including one that would implement ranked-choice voting in 2018 for uses unaffected by the Court's opinion - that is, congressional elections and primaries.[36] On October 23, 2017, the legislature voted to delay implementation of the RCV law for all races until 2021, to allow for time to pass a state constitutional amendment to allow it. This repeal affects even those races not affected by the Court's opinion, with the argument that Maine voters would be confused by a mix of RCV and non-RCV choices on a ballot. However, if such an amendment is not passed, the law would be repealed.[37]

People's veto
See also: June 2018 Maine Question 1

Supporters, angered by the delay, launched a people's veto signature-gathering effort to prevent it, pointing to its successful use in mixed-race ballots in Portland. The veto passed in June 2018 as Question 1, restoring ranked-choice voting for primary and federal elections.

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References
  1. "November 8, 2016 General Election". Maine Department of Secretary of State.
  2. https://www1.maine.gov/sos/cec/elec/upcoming/citizensguide2016.pdf
  3. "Maine Question 5 — Allow Ranked-Choice Voting — Results: Approved – Election Results 2016". New York Times. 2017-08-01. Retrieved 2017-12-20.
  4. "Maine group launching campaign for ranked-choice voting". Bangor Daily News/Lewiston SunJournal. October 12, 2015. Retrieved November 20, 2015.
  5. "2010 Governor General Election Tabulations". Office of the Maine Secretary of State. Retrieved November 20, 2015.
  6. "Maine lawmakers seek to end strategic voting, 'spoilers' with petition for ranked-choice voting". Bangor Daily News. October 27, 2015. Retrieved November 20, 2015.
  7. "Bill seeks to assure majority vote wins". Bangor Daily News. February 20, 2003. Retrieved June 29, 2016.
  8. "A Better Way to Vote". Bangor Daily News. March 14, 2011. Retrieved November 20, 2015.
  9. "Bill to create Maine presidential primary, adopt ranked-choice voting comes with hefty price tag". Bangor Daily News. May 6, 2013. Retrieved November 20, 2015.
  10. "Cutler says victory is 'long shot,' tells supporters to vote accordingly". Bangor Daily News. October 29, 2014. Retrieved October 29, 2014.
  11. "Citizens' initiative for ranked-choice voting found valid with 64,687 signatures". Office of the Maine Secretary of State. November 18, 2015. Retrieved November 20, 2015.
  12. "Maine officials, legislators question legality of ranked-choice voting". Kennebec Journal. January 21, 2016. Retrieved January 21, 2016.
  13. "Maine secretary of state revises wording of all five November ballot questions". Bangor Daily News. June 23, 2016. Retrieved June 23, 2016.
  14. "Maine's History of Majority Rule and the Adoption of Plurality Provisions". The Committee for Ranked Choice Voting. Retrieved 2018-01-03.
  15. "Maine attorney general says ranked-choice voting may require amending constitution". Portland Press Herald. March 5, 2016. Retrieved March 7, 2016.
  16. "Does ranked choice voting raise any constitutional questions?". Committee for Ranked Choice Voting. Archived from the original on June 24, 2016. Retrieved June 29, 2016.
  17. "Ranked Choice Voting in Maine". Retrieved 14 November 2018.
  18. Burke, Michael (2018-12-24). "GOP lawmaker to drop challenge to Maine's new voting system". The Hill. Retrieved 2018-12-25.
  19. "Endorsements". Ranked Choice Voting Maine. Retrieved December 7, 2015.
  20. "Maine Voices: Republican, Democrat and independent vote for ranked-choice elections". Portland Press Herald. December 7, 2015. Retrieved December 7, 2015.
  21. "Former Vt. governor touts instant-runoff voting in Maine". WCSH6.com. 2016-07-30. Retrieved 2017-12-20.
  22. "History of Cumberland County Commissioners". Cumberland County. Retrieved 2017-12-20.
  23. Grover, Mark D. (2015-05-18). "The Center Road: Democracy's past, present, future". Keep Me Current. Retrieved 2017-12-20.
  24. "Our View: Ranked-choice voting is right for Maine". October 16, 2016.
  25. "Ranked Choice". The Times Record. 2014-11-13. Archived from the original on 2017-12-22. Retrieved 2017-12-20.
  26. "Question 5 advocates try to allay confusion about ranked-choice voting". Portland Press Herald. 2016-10-23. Retrieved 2017-12-20.
  27. "LePage: Action on shootings should take mental illness into consideration". Bangor Daily News. June 22, 2016. Retrieved June 29, 2016.
  28. "Ranked Choice Voting: Wrong for Maine & Blatantly Unconstitutional". Maine Wire. March 29, 2016. Retrieved June 29, 2016.
  29. "Ranked-choice voting". The Ellsworth American. 2016-09-16. Retrieved 2017-12-20.
  30. "The reasons for Maine to adopt ranked-choice voting are unconvincing". Bangor Daily News. 2016-10-19. Retrieved 2017-12-20.
  31. "Leads shrink for 4 of the 6 Maine ballot issues, poll indicates". Portland Press Herald. 2016-10-31. Retrieved 2017-12-20.
  32. Scott Thistle (2016-09-29). "Poll suggests Mainers open to changing the way they vote". CentralMaine.com. Retrieved 2017-12-20.
  33. "Maine Senate Asks High Court for Opinion on Voter-Approved Ranked-Choice Initiative". MPBN. Retrieved February 3, 2017.
  34. "Opinion of the Justices of the Supreme Judicial Court". 23 May 2017.
  35. "Maine Supreme Judicial Court rules ranked-choice voting unconstitutional". Bangor Daily News. May 23, 2017. Retrieved May 23, 2017.
  36. "Ranked-choice voting bills go to full Legislature for debate". Portland Press Herald. June 8, 2017. Retrieved June 9, 2017.
  37. "Ranked choice voting delayed until 2021". WCSH6.com. 2017-10-23. Retrieved 2017-12-20.
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