Mainers decided to begin using ranked-choice voting in elections for the state Legislature, governor and federal offices all the way back in November of 2016 鈥� the first state in the nation to do so.
But nearly a decade and multiple court cases later, full implementation of that new system approved by has languished in a sort of legal and administrative purgatory. Ranked-choice voting is used in state and federal primaries. It is also used in federal races during the general election. But it is not used in general elections for state representative, state senator or governor.
In the Democratic and Republican primaries this June, Maine voters will rank candidates for governor, the state Legislature and federal offices in order of preference. In this system, if one candidate is the first-choice pick of more than half the voters, that candidate is declared the winner. If no one gets more than 50 percent, there could be another round of counting, with candidates in last place eliminated and their votes reallocated to voters鈥� second-choice picks. That process can continue for multiple rounds until one candidate secures more than 50 percent and wins the election.
However, that same system won鈥檛 be employed across the board in November鈥檚 general election, where ranked-choice voting could be used for the U.S. Senate and congressional races but won鈥檛 determine who serves in the State House or as governor. Those state general elections still feature the more traditional approach of plurality voting, where voters choose one candidate, and the person with the highest initial vote tally wins regardless of whether they get more than 50 percent.
If you鈥檙e confused, you鈥檙e not alone.
鈥淚t is confusing for folks,鈥� said Kate McBrien, the chief of staff for Maine Secretary of State Shenna Bellows. 鈥淲hat we hear from everyone is what鈥檚 confusing is which races it applies to and why doesn鈥檛 it apply to all of them.鈥�
To that end, the secretary of state鈥檚 office, tasked with overseeing Maine鈥檚 elections, has been hosting to help people learn more about ranked-choice voting.
Chrissy Hart, executive director of the League of Women Voters of Maine, an organization that has been at the forefront of the push for ranked-choice voting in the state, also acknowledged that there is some potential for voter confusion and frustration with the current hybrid landscape.
鈥淲e certainly have confidence in the Maine voter and voters鈥� ability to navigate their ballots, and we do everything we can to support civic education to that end,鈥� Hart said. 鈥淏ut we would vastly prefer to see continuity between what folks experience in the primary and general elections.鈥�
That lack of continuity is not for a lack of public support. Maine voters have twice endorsed a broad use of ranked-choice voting at the polls, both in 2016 and a subsequent statewide referendum in 2018 that prevented lawmakers from delaying implementation. Exit polling , an organization that supports ranked-choice voting, suggests that the ranked-choice process has continued to enjoy support from a majority of Maine voters.
But popularity and constitutionality aren鈥檛 the same thing. Maine鈥檚 supreme court has now twice issued unanimous, non-binding advisory opinions that using ranked-choice voting in the general elections for governor and the State House would be out of step with the Maine Constitution.
For nearly 150 years, the state鈥檚 founding document has dictated that Maine lawmakers and the governor be elected by a plurality 鈥� meaning that whoever gets the most votes wins, even if that is not more than 50 percent. The justices from Maine鈥檚 highest court have found those plurality provisions and the related language laying out how general elections for state office need to be conducted are not compatible with the ranked-choice voting process, which uses multiple rounds until a candidate eclipses 50 percent.
So why does this apply to the state鈥檚 general elections, but not the primaries or federal elections?
鈥淧rimary elections in Maine and elections for federal offices are governed by statute and not by the Maine Constitution,鈥� the secretary of state鈥檚 office explains on its website.
That difference explains why ranked-choice voting can be used in the primaries and congressional races, and was able to be expanded to Maine鈥檚 presidential elections in 2020 by the Legislature, but continues to be excluded from state general elections.
The state constitutional concerns surrounding ranked choice didn鈥檛 spring up overnight. They predated the 2016 referendum and were voiced by Democrats and Republicans alike.
鈥淲e raised those with the people who were originally talking about taking it to referendum long before they even submitted their information for a question,鈥� said Matt Dunlap, the current Democratic state auditor who was secretary of state at the time. 鈥淎nd we looked at some of their proposed language, and we said, 鈥楾his is a problem.鈥欌��
Dunlap and were not alone in that assessment. Democratic Gov. Janet Mills, then attorney general, also that the initial ranked-choice voting referendum could conflict with the Maine Constitution. Legislative Republicans echoed those concerns before the referendum question went to voters.
In the decade that followed, the debate in Augusta over ranked-choice voting has typically split along party lines. Maine Democrats and some independents have been generally supportive of the approach and its expansion, while Republicans have not only resisted its expansion but have repeatedly sought its repeal.
Those who support ranked-choice voting argue that it better allows people to vote based on their preferences and not who they think can win, produces more broadly appealing candidates and promotes more civility within campaigns. Detractors have called it a confusing, cumbersome and drawn-out process that they say has failed to deliver on its promises.
But Republican bills to get rid of ranked-choice voting law haven鈥檛 gone anywhere in the Democrat-controlled State House over the past eight years. Repeated attempts by Democrats and a handful of independents to amend the state鈥檚 Constitution and expand ranked-choice voting, meanwhile, have encountered vociferous Republican opposition and failed to cross the two-thirds threshold needed to advance a constitutional amendment to voters.
Those dynamics don鈥檛 appear likely to change anytime soon.
鈥淭he Constitution forces this hybrid approach,鈥� said Jason Savage, executive director of the Maine Republican Party. 鈥淚f they want ranked-choice voting in some, they can鈥檛 get it into all. And so now we鈥檙e going to perpetually be on this hybrid track. It鈥檚 still confusing.鈥�
Dunlap, who was tasked with implementing the bifurcated version of ranked-choice voting after the successful referendum and subsequent action in court, said he isn鈥檛 surprised by the 鈥渟uspended inertia鈥� that has come to define ranked-choice voting鈥檚 partial deployment in Maine elections. And he has had the unique experience of drawing the ire of both sides in this yearslong debate.
鈥淚 think I was alternatively accused, falsely in each case, of either trying to smother ranked-choice voting with a pillow in its crib or trying to sneak it through the back door,鈥� Dunlap said. 鈥淎nd actually, what I told people is like, 鈥楲ook, if we鈥檙e going to do this, we have to make it work. And it鈥檚 got to work right.鈥欌��
State supreme court weighs in again
With the way it has worked out over the past decade, the first state in the nation to approve statewide ranked-choice voting has yet to fully adopt the system. Because the state Constitution trumps state statute, even when that statute is passed directly by Maine voters, ranked-choice voting has never been used in the general election for governor or the state Legislature.
And that will once again be the case this November, with Maine鈥檚 highest court pouring cold water this spring on the newest effort from legislative Democrats to expand ranked-choice voting.
After multiple failures to get a constitutional amendment out of the State House and onto the ballot, and after some notable developments elsewhere in ranked-choice litigation, ranked-choice voting proponents tried something different in the most recent legislative session. Rather than trying to amend the state Constitution, Democrats , L.D. 1666, that sought to change language in Maine鈥檚 ranked-choice voting law and harmonize it with the Constitution鈥檚 plurality requirements.
Given the ongoing questions and the rapidly approaching elections, legislative Democrats turned to a process in the state Constitution that asks the Maine Supreme Court to weigh in on 鈥渟olemn occasions鈥� to offer advice on 鈥渋mportant questions of law.鈥� from the court indicate that this rarely invoked process has led to just four advisory opinions from the justices since 2017, twice on the matter of ranked-choice voting.
In April, the justices responded with a that closed the door on the recent ranked-choice voting expansion bill. They once again advised that extending ranked-choice voting to general elections for governor and the State House would be unconstitutional.
Not everyone agrees with the supreme court鈥檚 interpretation. Ranked-choice proponents have long argued that the process already comports with the state Constitution. And they were hoping their arguments would be buoyed by a 2022 Alaska Supreme Court decision that upheld the broad use of ranked-choice voting in that state, along with federal guidance on the issue that included a U.S. District Court judge in Maine that Maine鈥檚 use of ranked-choice voting does not violate the U.S. Constitution.
The ruling in Alaska, the only other state to adopt ranked-choice voting statewide, specifically criticized the 2017 opinion from Maine鈥檚 high court. When confronted with those newer arguments and developments, however, the Maine justices remained unconvinced.
The Maine justices found that 鈥淟.D. 1666鈥檚 conception of a vote as being a series of instructions or rankings that when tabulated pursuant to a ranked-choice process leads to an eventual final vote is inconsistent with the constitutional concept of a 鈥榲ote,鈥欌�� and opined that the provisions within Maine鈥檚 Constitution requiring a plurality of votes do not allow for the additional round of tabulations as laid out in the proposed bill. In the section that describes how the state should elect the governor, for instance, the Constitution states, 鈥渢hey shall determine the number of votes duly cast for the office of Governor, and in case of a choice by plurality of all of the votes returned they shall declare and publish the same.鈥�
The justices鈥� opinion, while non-binding, essentially scuttled the most recent push for ranked-choice expansion. That bill, which had received widespread support from legislative Democrats but saw notable pushback from Democratic Attorney General Aaron Frey, along with unified opposition from legislative Republicans, officially died when the Legislature adjourned on April 29.
Figuring out what鈥檚 next
太子探花 of the recent advisory opinion has added an additional layer of confusion for some voters, with some erroneously believing that the court struck down ranked-choice voting entirely.
鈥淲e鈥檝e been hearing some confusion on social media, but also just comments that we鈥檝e received, that people were misinterpreting the decision thinking that it meant ranked-choice voting was gone completely,鈥� said McBrien, from the secretary of state鈥檚 office. 鈥淎nd that鈥檚 simply not the case. The court decision keeps in place how the state works with ranked-choice voting now and just simply doesn鈥檛 expand it.鈥�
Kyle Bailey, the former campaign manager for the pro-ranked-choice voting committee that led the 2016 ballot initiative, was critical of the court鈥檚 recent opinion and emphasized that the existing law remains in place.
鈥淩anked-choice voting was twice approved by Maine voters,鈥� Bailey said. 鈥淚t is the law of the land, and it will stay that way in perpetuity unless and until the Maine people decide otherwise.鈥�
Bailey stressed that advisory opinions are non-binding and took issue with the justices鈥� focus on 鈥渙bscure鈥� provisions in the state Constitution that outline how votes are supposed to be sorted, counted and finalized.
鈥淐onstitutional scholars across the U.S. find the rationale of the Maine Supreme Judicial Court bizarre because it is,鈥� Bailey added.
One national ranked-choice expert, Scott Kendall of Alaska, who successfully argued the 2022 case before that state鈥檚 top court, found the Alaska justices鈥� reasoning much more convincing. But he also wasn鈥檛 particularly surprised that the Maine justices hewed closely to precedent here in the Pine Tree State.
鈥淭he Maine Supreme Court decides what the Maine Constitution means, so my opinion doesn鈥檛 really mean much,鈥� Kendall said. 鈥淏ut I would say, to me, their opinion sort of represented this failure of imagination in the sense of, many states have what they call these plurality clauses. Ours just says the greatest number of votes. I think Maine鈥檚 actually uses the word plurality, but it kind of fails to acknowledge that plurality is also inclusive of majority.鈥�
Hart, the League of Women Voters of Maine leader, said her organization disagreed with the court鈥檚 interpretation but respects the justices鈥� role in the process.
鈥淲e take the position that we believe that the court and the attorney general could have found a way to square what is laid out in the Constitution with ranked-choice voting, but the court made its decision and made it clear that the court will not be the place to take this up in the future,鈥� Hart said. 鈥淪o our strategy and our priority right now is regrouping and figuring out what鈥檚 next.鈥�
Hart said that a renewed push for a constitutional amendment is 鈥渃ertainly within the realm of possibility.鈥�
Democratic Sen. Cameron Reny, the lead sponsor of L.D. 1666, expected the effort to expand ranked-choice voting to continue. She said that could likely take the form of another attempt to pass a constitutional amendment but wasn鈥檛 sure yet what the specifics could be.
鈥淭his is my second term in office, and I鈥檝e kind of learned to not be surprised at pretty much anything. I am, however, disappointed that that was the ruling,鈥� Reny said on the Legislature鈥檚 final day of work. 鈥淭hat being said, I think that the effort to fully implement ranked-choice voting in the state continues. And perhaps next session, the route taken will look a little different.鈥�
There is no real mystery as to what Maine Republicans鈥� approach to ranked-choice voting will be moving forward.
Savage, the Maine GOP executive director, said state Republicans have 鈥渘o interest in advancing ranked-choice voting in any way.鈥� He viewed L.D. 1666 as 鈥渁 pretty desperate grab at trying to make it happen when it鈥檚 unconstitutional鈥� and didn鈥檛 expect there to be Republican support for any potential constitutional amendment to expand ranked-choice voting.
鈥淎nd now we really need to start having a conversation about the fact that we shouldn鈥檛 be using ranked-choice voting at all,鈥� Savage said.
Bailey bemoaned the repeated Republican resistance to advancing a constitutional amendment in the Legislature.
鈥淲e could go back and forth all day, but there is a simple solution to allow the expansion of ranked-choice voting in Maine: The Legislature can place a constitutional amendment on the ballot for Maine voters to decide if they want the power to rank candidates in state general elections,鈥� Bailey said. 鈥淚t鈥檚 as simple as that.鈥�
鈥楴o perfect way to run an election鈥�
But the political path forward appears to be anything but simple.
If Democrats want to expand ranked-choice voting, they would likely need to win a supermajority in both the Maine House and Senate to overcome the entrenched Republican opposition and cross the two-thirds threshold to send a constitutional amendment to voters.
And for Republicans to achieve their goal of repealing ranked-choice voting, they would likely need to take back both the House and Senate and win the governor鈥檚 race, or secure a veto-proof majority in both chambers.
Neither of those scenarios seem especially likely. Democrats currently hold a slim majority in the House and enjoy a comfortable advantage in the Senate. Those margins could change in November, but it would take a drastic realignment to open the door to movement on the ranked-choice voting front.
So at least for now, Maine鈥檚 hybrid approach to ranked-choice voting will persist. And as ranked-choice supporters and detractors both acknowledge, the lack of conformity between primary and general elections is sure to continue raising questions from the electorate.
Dunlap, who is now running in the Democratic primary for Maine鈥檚 2nd Congressional District, said that using ranked-choice voting in some elections but not others is 鈥渁bsolutely鈥� a recipe for confusion and frustration from voters who may not have been following each and every development in this complicated debate.
鈥淵ou have to remember that voters are people, people who have lives. And they are thinking about getting their kids to softball practice and soccer practice,鈥� Dunlap said. 鈥淭hey鈥檙e not thinking about what we鈥檙e doing in Augusta.鈥�
Now that Maine has used ranked-choice voting in several elections, and that voters have repeatedly endorsed it, Dunlap thinks it would be more damaging to get rid of it than to amend the Constitution and expand it. But in a debate that has gotten pretty heated at times, he鈥檚 not especially strident in his position on the ranked-choice approach.
鈥淧eople ask me how I feel about ranked-choice voting, and frankly, even to this day, I鈥檓 a little bit agnostic about it,鈥� Dunlap said. 鈥淚t鈥檚 just a different way of electing people. There鈥檚 no perfect way to run an election.鈥�
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