U.S. Department of Agriculture
Maine second-district incumbent congressman Bruce Poliquin won the initial vote tally in the November 6 election, but failed to garner half the vote in the four-way “rank-choice-voting” race, sending the contest went to a recount. Poliquin sought a federal injunction to stop it.
Maine’s ranked-choice voting system, approved by Maine voters in a 2016 statewide ballot referendum, is being put to its biggest test yet in the wake of the 2018 midterm elections—and so far it’s holding up.
This year marks 100 years of RCV in Australia, but Maine’s 2018 midterm elections marked the first time the approach has been used for a federal election anywhere in the U.S.
In 2017, the Maine Supreme Court ruled that RCV violated Maine’s constitution, but the court left alone the issue of federal constitutionality, so RCV is now being used to decide Maine’s federal races, but not its state contests. And that’s where it gets interesting.
Maine second-district incumbent congressman Bruce Poliquin, a Republican, won the initial vote tally in the November 6 election but failed to garner half the vote in the four-way race, so the contest went to an RCV recount. But Poliquin led Democratic challenger, state Senator Jared Golden, by a slim margin, and most observers expected Golden to snag the lion’s share of the second-place votes of the race’s two independent candidates, thus propelling Golden past Poliquin in the final RCV tally.
Ripping a page from the 2000 George W. Bush playbook, Poliquin filed suit, alleging that RCV is a violation of the equal protection clause of the 14th amendment.
Facing likely loss, Poliquin sought a federal injunction to stop the RCV recount, calling the RCV system a violation of the 1965 Voting Rights Act and the U.S. constitution’s guarantee of due process. Ripping a page from the 2000 George W. Bush playbook, Poliquin’s suit also alleged that RCV was a violation of the equal protection clause of the 14th amendment. Poliquin seemed to have no problem with RCV until it looked likely to prove his undoing. And he never spoke out against the 2013 Supreme Court gutting of the 1965 Civil Rights Act.
With RCV withstanding its previous Republican-sponsored legal challenge, things looked good for Golden. But Poliquin could scarcely have landed a better judge to decide the matter. U.S. District Court Judge Lance Walker was appointed by President Trump, has been an intermittent NRA member, and in law school was a member of the Federalist Society, a far-right legal group President Trump uses to troll for judicial nominees.
Maine waited.
On the morning of November 15, nine days after the November 6 election, Judge Walker ruled the recount could go forward but did not make a final ruling on RCV’s constitutionality. Moments after the ruling was handed down, the Maine League of Women Voters reached out to me, wanting to confirm that I would join a lawsuit to uphold RCV if Judge Walker were to strike it down. In response to a mass email, I had previously registered with the league as a willing participant in such a lawsuit. I readily confirmed my willingness to be a plaintiff.
I hung up the phone and went about my day, heading to the Bangor Kia dealer, where, in the service waiting room, the giant wall television cut away from a soap opera to go live to Augusta, where an earnest-looking Secretary of State Matthew Dunlap stood next to a projected image of an in-progress computer-generated RCV recount. (In 2017 Dunlap received national attention when he blasted President Trump’s defunct and debunked voter-fraud commission.)
On November 6, Maine had gone almost solid blue, with Democrats holding the state’s only other congressional district and the state House of Representatives, and flipping the state senate and the governor's office. A RCV recount victory for Golden would give Democrats a clean sweep of all New England House seats. Would the party’s luck hold?
Yes, it would. In the final RCV count, Golden squeaked by Poliquin by 51 percent to 49 percent. The television soon cut to Golden’s prepared victory speech—which threatened to last until the 2020 election.
But Poliquin is not done. As noted, District Court Judge Walker’s order allowed the RCV recount to proceed, but did not rule on the constitutionality of ranked-choice voting.
Dmitry Bam, a University of Maine constitutional law professor, told the Bangor Daily News that “99 percent of the time, a judge's decision on a temporary restraining order is going to be the final decision. What does commonly happen is once you lose a temporary restraining order, you often drop the case.”
Not Bruce Poliquin.
Meanwhile Maine Governor Paul LePage, an RCV opponent who boasts of being Trump before Trump was Trump, has threatened to not certify the election because of ranked-choice voting. In Trump-like rhetoric, LePage has called RCV “the most horrific thing in the world.”
A hearing on Poliquin’s suit will be held December 5 in federal court in Bangor, the largest city in the second district. The hearing will be held a mere nine days before all congressional election results nationwide must, by law, be submitted to Congress.
The future of ranked-choice voting for Maine, and possibly the entire country, could hang in the balance. Stay tuned.