BANGOR — A federal judge is expected to decide within the next few days whether Maine’s first-in-the-nation ranked-choice election for Congress will stand.
Attorneys for Rep. Bruce Poliquin and the Maine Attorney General’s Office argued in federal court Wednesday over the constitutionality of Maine’s voting law and the election process that propelled Jared Golden, a Democrat, to victory over the two-term Republican incumbent Poliquin in the race to represent the state’s more northern and rural 2nd U.S. Congressional District.
Poliquin’s lawyers are asking U.S. District Court Judge Lance Walker to rule that the law, passed by voters in November 2016 and affirmed by a citizen veto vote in June, violates the U.S. Constitution. They are arguing that Poliquin should either be declared the winner based on the fact that he won a plurality of votes in the first round of counting or that there should be a special election, or runoff, between Golden and Poliquin.
The hearing ended early Wednesday afternoon with Walker saying he intended to issue a decision by next week.
Even as the case is being considered, a hand recount of the election is set to begin Thursday at Poliquin’s request. The recount could take up to four weeks to complete.
Maine’s ranked-choice ballot law allows voters to designate second and third choices on their ballots. Those preferences only come into play if no candidate receives majority support on the first vote tally. In such situations, the candidate with the fewest votes is eliminated and their supporters’ votes are reallocated to the candidates they ranked second.
That process continues — with candidates eliminated from the bottom up — until one candidate secures more than 50 percent of the votes.
While Poliquin led the vote count after the first round, he was short of 50 percent. That allowed Golden to pull ahead after two independent candidates were eliminated and their supporters’ second- and third-choice votes were redistributed.
Golden’s victory was the first time anyone has been elected to Congress using ranked-choice voting.
Poliquin and three voters from the state’s 2nd Congressional District are suing Maine Secretary of State Matthew Dunlap over his implementation of the law, claiming the use of ranked-choice voting violates several sections of the U.S. Constitution because the document “sets a plurality vote as the qualification for election” to Congress. Poliquin’s attorneys are leaning heavily on a previous ruling by a federal appeals court in New York that determined elections that allow for a plurality winner are constitutional.
However, the U.S. Constitution does not mention plurality or ranked-choice voting, and several constitutional scholars said the lawsuit is not likely to prevail.
Walker, who was appointed to the court by President Donald Trump, ruled against interrupting the ranked-choice retabulation process while it was happening last month, suggesting to many observers that he was not convinced there was a constitutionality problem.
James Gimpel, a professor of political science at the University of Maryland who studies voter behavior, testified in court Wednesday morning as an expert witness on behalf of Poliquin and his co-plaintiffs. Gimpel broadly criticized ranked-choice voting and suggested that some 8,000 voters who did not designate second or third choices were disenfranchised because they had no way of guessing who the final two candidates would be when they cast their ballots.
“This leaves them clueless,” Gimpel said.
But Phyllis Gardiner, an assistant attorney general who is representing Dunlap in the suit, reminded Walker that the courts “don’t change the rules of an election after the fact.” Gardiner also said that voters were given clear instructions on the ballot and that all of the candidates in the race were printed on that ballot.
“There is no constitutional right to know who is going to be in the final round,” Gardiner said. She also said there was “absolutely no case law” to support Poliquin’s argument.
James Monteleone, an attorney representing Tiffany Bond, one of two independent candidates in the race who were eliminated when votes were retabulated, argued Wednesday that overturning the election results now would disenfranchise voters who followed the rules and the law, including those who voted for Bond first and selected another candidate as a second choice.
Monteleone said voters who picked Bond or the other independent candidate in the race, William Hoar, but did not rank either Poliquin or Golden as a second or third choice — in all about 8,200 voters — were afforded the same opportunity to rank choices that all other voters had.
“They made the choice that they don’t want to rank more than one or two, and our system protects that right,” he said.
Walker said it was apparent to him that not every voter intended to choose a candidate that they believed could win and that even the rights of the “quixotic” voter are protected under the U.S. Constitution.
Peter Brann, an attorney for Golden, also reminded Walker that Poliquin knew the ranked-choice law was in place before the election, knew there were other legal challenges that were being filed ahead of the election and yet waited until after the election and ballots were being counted to sue.
“They didn’t file anything until they started to get results and the handwriting was on the wall,” Brann said.
Both Brann and Gardiner also asked Walker to dismiss Gimpel’s testimony saying it amounted to little more than speculation as to what was in the minds of Maine voters when they went to the polls in November. Walker repeatedly overruled objections to Gimpel’s testimony but at one point said, “ I will give the testimony all the weight I think it deserves.”
Poliquin’s attorney, Lee Goodman, said Wednesday he had not determined whether they would appeal Walker’s decision were he to rule against them.
But he did say that he didn’t believe Golden should be seated in Congress until Walker determines whether the election was legal under the U.S. Constitution.
“This tests the adequacy and the constitutionality of that election and so it therefore tests the qualifications of the candidates,” Goodman said.
Rep. Bruce Poliquin, R-Maine, leaves the Longworth House Office Building on Capitol Hill in Washington on Nov. 28, 2018. Poliquin, who lost to Democratic challenger Jared Golden, is legally challenging the results of the election. (AP file photo)