AUGUSTA — The Maine Legislature is again wrestling with whether to implement, delay or repeal a law passed by voters last November that made Maine the first state to approve a statewide ranked-choice voting system to elect legislators, the governor and members of Congress.
In 2017, the Legislature three times failed to reach consensus on what to do with the law, leaving next year’s primary and general elections in a kind of legal limbo.
The law is set to be used for the first time in the June 2018 primaries when Maine’s political parties will select candidates for those races. But last May, the state Supreme Judicial Court issued an advisory opinion to the state Senate, saying that if ranked-choice voting were used in the general election for governor or legislators, the results could be challenged in court because the system violates the Maine Constitution.
And on Monday, the Legislature’s Veterans and Legal Affairs Committee, after hours of public testimony, failed to reach consensus on a bill that would implement parts of the law that do not raise constitutional concerns, and delay the rest until voters could be asked to amend the constitution.
The hearing attracted a large turnout, including the authors and advocates for the bill, leaders of the campaign that put the ranked-choice question on the ballot, and dozens of residents who testified in support of ranked choice, which many say is needed to end what’s become an increasingly wide partisan divide both in Augusta and Washington.
But lawmakers on the 13-member committee ended the day with four options for the full Legislature: implementing parts of the law, repealing it, delaying implementation of the law until 2019, or delaying it until 2021, and repealing it if a constitutional amendment is not approved.
Former state Sen. Dick Woodbury, a Falmouth independent, urged the committee to adopt the new bill to protect its constitutional portions.
Woodbury pointed out that the ballot measure received the second highest vote total of statewide ballot measures in an election with a 73 percent voter turnout – the largest in Maine history. Just over 52 percent of Maine voters approved ranked choice.
He said those behind the measure were largely Maine residents and not “monied interests” from out of state.
“This was the most respectful, deliberative and pure exercise of American democracy that I have ever seen,” Woodbury said.
Opponents say implementing parts of the law would be costly and confusing to voters. Lawmakers were unable to agree on amending the law during the past session, which ended in August. But they are expected to try again during a special legislative session starting Oct. 23.
Under Maine’s previous voting system, candidates who got the highest vote totals were declared winners, even if they received less than 50 percent in a race with three or more contestants.
Under the ranked-choice system, voters would rank candidates in order of preference. If no one had more than 50 percent of the vote after the first count, the candidate with the fewest votes would be eliminated. Voters who chose the eliminated candidate would have their ballots added to the totals of their second-ranked candidates, and the ballots would be retabulated. The process would continue until one candidate had a clear majority and was declared the winner.
Monday the committee also heard from Maine Deputy Secretary of State Julie Flynn, who said without legislation, the state would not have either the funds or the rule-making authority to implement ranked-choice voting by June.
And while about 90 percent of Maine voters used voting machines that could be reprogrammed to count ranked ballots, more that 240 of about 500 towns do not have the equipment and count ballots by hand.
State Sen. Garrett Mason, R-Lisbon, co-chairman of the committee, said he supports an outright repeal of the law based on a memo from Flynn that spelled out the Secretary of State’s Office’s concerns about implementing it.
Mason and other opponents believe, based on the court’s advisory ruling, that the law would be ruled unconstitutional if formally challenged, which could throw the 2018 election into chaos.
“I don’t care what side you are on on this issue. It ought to give you pause about implementing this law right away,” Mason said, adding that he would oppose the bill to partially implement the law. “I believe that doing two or three different voting ballots for an election is not orderly and it is not the right way to go about business at the ballot box.”
But others said the high court’s opinion in May was purely advisory and does not carry the weight of a formal ruling.
“The bill that the people passed at the ballot box is not unconstitutional, let me say that again, it is not unconstitutional because a court of competent jurisdiction has not ruled it to be such – so for me the debate about whether or not ranked-choice voting is good or bad was settled at the ballot box last November,” said state Rep. Craig Hickman, D-Winthrop. Hickman said if lawmakers believe the law requires a constitutional amendment it is their responsibility to give voters a chance to do that.
Under the state’s constitution, amendments are instituted by a two-thirds vote of the Legislature but they must be ratified by statewide vote in a November general election.
Other lawmakers, including the committee’s House co-chairman, Rep. Louie Luchini, D-Ellsworth, said they favor delaying implementation of the law so the Secretary of State’s Office has time to study how to fund and implement it.
Without two-thirds support in the Legislature for sending a constitutional amendment to voters, and without enough votes to overcome a likely veto by Gov. Paul LePage of a partial implementation law, Luchini said, delay, “is the political reality of something we can do to get (it) passed.”
Otherwise it will be in the court’s hands, Luchini said. “Leaving it up to the courts, in my view, is not responsible. It could be months after November before we know who the governor is.”
Scott Thistle can be contacted at 713-6720 or at: