Maine Supreme Court Gets It Wrong On IRV

Maine Supreme Court Gets It Wrong On IRV

Jun 26, 2017

The Center for Election Science (electology.org) strongly disputes the advisory opinion of the Maine Supreme Court regarding Question 5, the citizens’ initiative which established IRV (Instant Runoff Voting; also called RCV, Ranked Choice Voting) as Maine’s voting system. We believe the following:

 

  • Contrary to what the Supreme Court said, IRV is entirely in keeping with the constitutional requirement that the governor, State Senate, and State House be elected by a “plurality”. The multiple counting rounds of IRV involve the transfer of votes according to the expressed will of the voters. At the end of those counting rounds, one candidate will have a majority of non-exhausted ballots; that is, of those which express any preference between the remaining candidates. However, the majority of the non-exhausted ballots may correspond to merely a plurality of all the ballots. Thus, IRV is clearly in accord with the Maine Constitution on this point.

  • A voter initiative like this enjoys a “heavy presumption” of constitutionality, and thus is not unconstitutional unless there is “no set of circumstances” in which it could be read to be constitutional. The Supreme Court, by ignoring the perfectly reasonable reading suggested above, overrode the people’s will to choose the electoral mechanism for electing their officers; the very heart of their sovereign democratic powers.

  • IRV is a clear improvement over the prior election mechanism in Maine (and in most of the rest of the US), often called First Past the Post (FPTP). FPTP has led to multiple election pathologies in Maine in recent years, and the voters’ decision to replace it was extremely well motivated.

  • Even if it were unconstitutional to elect the governor, state senators, and state representatives by IRV, it would still be constitutional to elect US senators and members of Congress by that mechanism. Since Maine has an implied severability clause, this portion of the initiative should stand.

  • Thus the Maine Legislature should, with all due haste, put a constitutional amendment to the voters, to allow them to use their chosen voting mechanism.

  • In the meantime, Maine legislators should move to implement IRV for electing US senators and members of Congress.

 

The Center for Election Science did not campaign for Question 5, and has not campaigned for other IRV initiatives that have been put forward in other states or cities. We have typically supported other types of voting method reform. Thus, our opinion on this matter is not simply a matter of self-interest; we are focused here on the interests of the voters of Maine and of US democracy in general. Furthermore, we have been consistent in saying that we believe IRV is constitutional in Maine.

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