By Peter Brann
For many years, Maine’s gubernatorial election was held in the September of presidential election years. That made it a bellwether for the subsequent presidential election two months later — leading to the phrase, “As Maine goes, so goes the nation.”
Maine no longer conducts its gubernatorial election in September or even in presidential years. But Maine has taken the lead in a new way. In 2018, Maine became the first state in the country to conduct federal congressional elections using ranked-choice voting. Our experience shows that voters can and will embrace new ways of conducting elections, which could help improve voter turnout.
Indeed, Maine saw more than 47 percent of its eligible voters cast ballots in the first general election using ranked-choice voting — a half-century high for midterm elections and substantially higher than the national average.
For instance, in Maine’s second congressional district, incumbent Republican Congressman Bruce Poliquin won a plurality, but not a majority, of the first-choice votes in the 2018 general election. When the lower-ranked candidates were eliminated and their second-choice selections were counted, Democrat Jared Golden won a majority of the votes and was declared the winner.
As the lawyer who successfully defended Golden in the federal constitutional challenge to his election, I believe that Maine could be the ranked-choice voting bellwether for other states. The 2018 election proved that it not only works quite well, but that it is court-tested.
Historically, court challenges to ranked-choice voting almost always fail and the same held true in Maine. In the three state court and two federal court challenges to ranked-choice voting the courts rejected every constitutional and statutory objection to its use in congressional elections, and its use in state primary elections.
This includes equal protection, due process, free speech, freedom of association, the constitutional provisions concerning congressional selection and qualifications, and the Voting Rights Act. In other states that have adopted ranked-choice voting for various local elections, every single court challenge likewise has failed.
In the specific federal court challenge brought by Poliquin and his supporters, they didn’t produce evidence of a single voter who was confused by the process. Probably that’s because ranked-choice voting, also known as instant runoff voting, is simple to describe.
In a multi-candidate race, voters have the option to rank their choices from first to last. Or they just vote for one candidate or rank just some of the choices. If anyone wins a majority on the first round, that candidate wins the election. If no one wins a majority, the lower-ranked candidates are eliminated, and their voters’ lower-ranked choices are counted, and this process continues until someone wins a majority.
Maine is a good petri dish to test the efficacy of ranked-choice voting given its rich history of electing independent or third-party candidates. One of Maine’s two senators is an independent. In three gubernatorial elections since 1974, independent candidates have defeated both major party candidates. In virtually every other gubernatorial election since 1974, independent candidates have either finished second or been the margin of difference between the two major-party candidates.
Even though other states don’t have this tradition, every state holds multi-candidate local or primary elections that might benefit from ranked-choice voting. In most elections, the winning candidate is the one who wins a plurality of the votes, even if a majority prefers someone else. In multi-candidate elections, a small base of dedicated followers often is a winning strategy over a broad base of lukewarm supporters. Voters are discouraged from voting for “spoiler” candidates who are unlikely to win, and instead, are encouraged to vote for the “lesser of two evils.”
In the second most popular form of elections, separate run-off elections, the top-two finishers in a multi-candidate race face off if no one wins outright in the first round. The major objections to this form are the cost and delay of holding a second election and the usual drop in voter turnout for the run-off election. Also, “I wish there were another month of political ads,” said no voter ever.
Ranked-choice voting has been billed as a panacea for all of these evils. I must confess that I was skeptical at first, thinking that it would appeal only to political junkies and political scientists, but no one else. In the various primary and general multi-candidate elections held in Maine in 2018, the ranked-choice voting process actually worked quite smoothly. The election officials collected the relevant ballots from across the state, fed them into a computer, and winners were declared with a push of a button, all within a couple of weeks of election day.
When Maine voters were given the opportunity in 2018 through public referendum to repeal ranked-choice voting, they rejected the referendum by a fairly wide margin. Maine voters appear to understand and like ranked-choice voting.
So, what’s not to like? Maine’s state motto is Dirigo, which means, “I lead.” Perhaps one again, as Maine goes, so goes the nation.
Peter Brann is a Maine lawyer and visiting lecturer at Harvard Law School. He defended the winning candidate in a federal lawsuit challenging the use for the first time of ranked-choice voting in a congressional general election and wrote the chapter on ranked-choice voting for the American Bar Association’s election law book.