MENU

Reason.com

Free Minds & Free Markets

Maine’s GOP Congressman Sues to Stop Ranked-Choice Voting

Bruce Poliquin is currently ahead. But a new requirement that he get a majority vote could unseat him.

Rep. Bruce PoliquinBill Clark/CQ Roll Call/NewscomMaine Republican Congressman Bruce Poliquin has filed a federal lawsuit in hopes of stopping the state's implementation of a new voting method from wrecking his re-election chances.

In initial election returns, Poliquin is ahead of Democratic challenger Jared Golden, but just barely, 46 percent to 45 percent. The problem for Poliquin is that under Maine's new ranked-choice voting system, he has to surpass 50 percent in order to win. There are two other independent candidates in the race covering the spread between the two major party candidates.

Previously, those laggards would matter only in the sense they could spoil one of the front-runners' chances. But with ranked-choice, it's a bit different. Rather than choosing one candidate, voters are invited to rank the candidates in order of preference. If no candidate gets 50 percent, there's a retallying of the ballots where the candidate with the least number of votes is dropped. For those who voted for that candidate, their second choice (if they selected one) is tallied as their vote instead. And so it goes until one candidate gets a majority of the vote.

So even though Poliquin is leading, he could very well end up losing when the other two candidates are dropped out in following rounds of tallying. He and the Maine Republican Party have an interest in stopping ranked-choice voting in its tracks, even though voters approved the implementation of it via ballot initiatives (twice).

Today, Poliquin and a couple of Republican voters filed a suit claiming that this transition to ranked-choice voting violates the United States Constitution in an attempt to get a federal judge to stop the subsequent recounts.

The lawsuit (which can be read here) argues that implementing ranked-choice voting violates Article 1, Section 2 of the U.S. Constitution. That section sets up that members of the House of Representatives shall be elected by the people, though it does not specifically state how that election should be decided, whether through a majority or plurality.

The lawsuit takes note of a federal appeals court case from 1970, Phillips v. Rockefeller, involving a challenge to a U.S. Senate election in New York. In that case, a panel of judges ruled that when the authors of the Constitution wanted a majority vote to determine outcomes, they specifically stated so (as the Constitution does when referring to the electors choosing the president). If they do not, then historically only a plurality vote has been required to win a Congressional election.

But there's a notable difference with this case and what is happening in Maine. In the Phillips case, the plaintiff was challenging the results of the election because the winner, James L. Buckley, did not receive a majority of the vote. The plaintiffs were attempting to use the court to force through a change in how elections are run. The judges resisted for the above reason.

In Maine, though, the voters themselves decided through the ballot initiative process to require a majority vote for federal elections, and it's not really clear from that case that the judges are saying that a plurality must be the rule either. The conflict here appears to be whether the people of a state can decide for a higher threshold than plurality. In that, the U.S. Constitution is silent.

Maine's own state constitution is clear, though, in using the word "plurality" to determine who wins state-level races, so thus far ranked-choice voting is not being used to determine the ultimate winner of the governor's seat or state legislature seats, even though voters agreed to implement ranked-choice for those races as well. Right now, ranked-choice is being used only for federal races because the U.S. Constitution doesn't have a demand for plurality. Maine's top court has warned that lawmakers should change the state's own constitution to implement ranked-choice vote for state-level elections. They have not yet done so.

The attorney for the Committee for Ranked Choice Voting is asking to join the suit to try to argue against Poliquin's demand. John Brautigam said that ranked-choice voting implemented elsewhere have been upheld by state and federal courts and believes it will be upheld. In May, a federal judge declined a request from the state's GOP to stop the use of ranked-choice voting for the primary elections in June.

The Press Herald in Maine notes that it's not yet clear when the judge will take up this lawsuit. In the meantime, Maine's secretary of state's office is continuing with the vote tallying unless a judge orders them to stop.

Photo Credit: Bill Clark/CQ Roll Call/Newscom

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • JWatts||

    I hope the courts decide to support a ranked-choice system, because I think it will lead to better outcomes. But the lawsuit probably has some merit.

  • Jerryskids||

    Well, in this case it's Maine so it really makes no difference whether you pick a Democrat, a Republican, a Socialist or a Whig, you're going to get the same bland bowl of mush.

  • Bubba Jones||

    Merit, but not victory. The constitution allows plurality but does not require it. One can argue that plurality was the historical default, but the voters affirmatively changed it prior to this election.

  • Tom Dial||

    Ranked choice voting, if allowed over several election cycles, is likely to lead to different electoral strategies and tactics, and possibly to different outcomes. It remains to be seen whether they will be better and by what definition of "better."

  • Paul Hager||

    The case has no merit because it makes the wrong arguments. The correct arguments, which have thus far never been used, are that Instant Runoff Voting (the ranked choice method being used) operates by a discard algorithm that literally throws away voter preference information. This is the functional equivalent of throwing votes away. Equal protection is violated because some voters have their votes discarded - votes that could have been crucial to the outcome. Moreover, by not counting all the votes, voters are functionally disenfranchised. Equal protection comes from Section 1 of the 14th; abridging voting rights (disenfranchising) comes from Section 2. Two other ranked choice systems, Borda and Condorcet do not discard. IRV has many other problems that actually DO NOT FAVOR 3rd parties but the legal problems are real.

  • Dillinger||

    >>>There are two other independent candidates in the race covering the spread between the two major party candidates.

    4 horses *and* you have to get to 50+1 to win? seems stupid.

  • Calidissident||

    You have to get 50 +1 at least by the time it's narrowed down to two candidates. If someone votes just for a third party candidate and nobody else, their vote gets dropped from the calculation in the later rounds.

  • Dillinger||

    less stupid then. gracias.

  • Sometimes a Great Notion||

    Except they scratch some of those horses after the race if none get to the finish line. Always bet the exaxta box in this type of race.

  • MoreFreedom||

    "4 horses *and* you have to get to 50+1 to win? seems stupid."

    What happens, is a third party candidate takes votes from their competition, like Ross Perot did with Clinton and GW Bush, where Clinton won by plurality. Perot thus ensured his firm continued to get huge contracts to do the computer processing for Medicare, which would likely have been taken away had GW Bush won. Or a major party candidate funds/helps another third party candidate to take votes away from his competition so they can win via plurality.

    This method, also known as Instant Runoff Voting, ensures a majority winner with voters only voting once. It's a great idea, because it will lead to more people voting Libertarian, because they know their vote won't be wasted, and will likely lead to more Libertarians winning. Especially as those initial Libertarian vote totals get bigger and are reported.

  • Paul Hager||

    IRV does not insure a majority winner. Only Condorcet does that. In Social Choice Theory, the discipline that studies voting systems, the majority winner where there are multiple choices/candidates is actually known as the "Condorcet Winner". IRV has been pushed for decades with minimal success. The FairVote people started calling it "ranked choice" as though the two are synonymous. It is sold by half-truths or lies. It is also a Trojan Horse for a proportional representation scheme known as Single Transferable Vote (STV).

    If anyone here looks into this, you will discover that what I am saying about IRV vs Condorcet is correct. Check out the Condorcet Internet Voting Service. There is a good example there of a failed IRV vote that left voters upset because, contrary to what they had been told, the most popular candidate wasn't selected. Of course, Condorcet would have accomplished this because "most popular" is also the majority winner. IRV was abandoned after this experience.

  • Echo Chamber||

    Republicans are never anyone's second choice

  • sarcasmic||

    If there was a Libertarian on the ballot I suppose a Republican could be someone's second choice.

  • sarcasmic||

    After all, all Libertarians do is steal votes from Republicans, right?

  • Bubba Jones||

    Republicans are generally my second choice.

    I vote straight party libertarian.

    Then I scan through the races where there is no libertarian and sometimes I vote Republican. I usually leave it blank on the idea that my vote won't be the deciding factor and I don't want to send the wrong message. I typically prefer Republicans to Democrats, but I don't affirmatively endorse them.

    So in a ranked ballot, I would probably vote lib/rep. But I don't know anything about this candidate and he might be a douchebag.

  • John's broseph||

    The fact that the 2 major parties won the vast majority of the vote reenforces my amusement whenever people complain about how awful politicians are.

    Here they had multiple candidates to chose from and their #1 choice (the absolute best choice in their minds) was almost the same as before. So whenever you hear of politicians lobbying for something outrageous (Cortez) remember that those words are a reflection of the desires of their constituents.

    We're so screwed.

  • Bubba Jones||

    And they had a ranked ballot! There was ZERO RISK in voting your true preference.

  • MoreFreedom||

    It takes time to change people's minds. Certainly a lot of GOP voters got fed up with RINO candidates that led to the rise of the Tea Party which the Obama (and Bush who appointed Doug Shulman to the IRS) administration abused via the IRS and their abusive and unconstitutional requests for information so those organizations could open a bank account and go to work. Something Trump settled via a court settlement with payments to the abused, which is another positive thing he's done.

  • Headache||

    It is really simple to void ranked choice. Vote for just one! But it is Maine, so there is no hope.

  • JFree||

    I'm really not a fan of ranked-choice or any other system that just makes voting more complicated. Voters are too fucking stupid to handle one choice as it is.

    That said - anything that screws with the DeRps is great by me. Hope they spanked by da judge.

  • Diane Reynolds (Paul.)||

    You only sue when you're losing.

  • Bubba Jones||

    You don't have standing until you lose.

  • Calidissident||

    The beauty of ranked choice to me is that if you can't handle more than one choice, you can just vote for one candidate. You're not obligated to rank all the candidates.

  • John's broseph||

    The Crux of the issue is voters are stupid period. Nearly all the votes still went for the 2 major parties, so even with the ability to not waste a vote R and D is the #1 choice of essentially everyone.

  • Robert||

    Shouldn't that be obvious? The wasted-vote phenom wouldn't exist if that weren't the case. The best instant runoff can do under the circumstances is give a more honest represent'n of how a few voters feel about the other candidates, probably slightly increasing their totes.

  • Marcus Aurelius||

    Not sure it would be more honest. Hard core D's will vote D 1, R last, and the same on the flip side. It does introduce the possibility of neither major part winning in a 4 candidate race.

  • Stephen54321||

    John's broseph: "Nearly all the votes still went for the 2 major parties"

    What are you expecting? Instant change?

    After 200+ years of first-past-the-post It will doubtless take voters (and candidates) a while to get used to the new system.

  • Paul Hager||

    Not stupid. Ignorant. Voters selected IRV because they were given the impression that it WAS "ranked choice voting". Voters weren't told the full import of the discard algorithm used. An opinion piece in the Bangor Daily News (rightfully) ridiculed Republican Poliquin's suit. The author wrote that there could only be disenfranchisement if all the votes WERE NOT COUNTED. He didn't realize that preference information of a ballot is the same as multiple votes. Voters are also told that IRV will find the majority choice. Not true. It may find the majority choice but frequently won't. Only Condorcet counts all the votes AND finds the majority choice.

    If one fed ballots into an optical scanner and every 20th were shredded, people would be outraged. IRV does the functional equivalent. IRV is inferior and arguably illegal, even if Poliquin doesn't know enough to make a good argument.

  • Paul Hager||

    I understand IRV and I know the problems. You might want to look up the nonmonotonicity problem, for example. If a voter ranks two of, say, five candidates A-B, that vote might result in B being electing in a very close race. However, had the voter switched to B-A at the last moment, both could lose. This perverse outcome is a result of the discard algorithm. With Condorcet, swapped the order like that wouldn't matter except that maybe A would end up beating B in the first case and B beating A in the second. This is a rational outcome and what a voter would expect. Personally, if I'm confronted with IRV in my state, I would immediately sue along the lines I've indicated elsewhere in the comments. I would also bullet vote. IRV is simply too perverse.

  • Jerryskids||

    Today, Poliquin and a couple of Republican voters filed a suit claiming that this transition to ranked-choice voting violates the United States Constitution in an attempt to get a federal judge to stop the subsequent recounts.

    Today? Today? They just now today realized that ranked-choice voting violates the Constitution? Did Maine just decide last week at the last minute to institute ranked-choice voting and this move caught everybody by surprise? Or is this guy a sound-out-the-words-one-letter-at-a-time reader who just now finished reading the memo? Surely it's not possible the guy just now realized he might lose and now wants to change the rules he would have been perfectly happy with had he been ahead 20 points. So why did he have to wait so long to bring up the Constitutionality of the voting system?

  • Jgalt1975||

    Right, the timing issue to me is the biggest problem with this. Ranked-choice voting may or may not be constitutional (I haven't looked at the issue at all), but if the lawsuit to stop the use of it isn't even filed until after the election (i.e., after everyone has already cast their votes using ranked-choice), then it seems like the candidates should be stuck with the results for this particular election since some number of voters presumably would have cast their votes differently if a traditional voting method had been used.

  • Paul Hager||

    I agree - the time to sue was just as soon as the law was on the books. Back when it was first being proposed in Maine, I communicated with some of the opponents. Sadly, I never subsequently saw any of my arguments being used. More's the pity. In Indiana, where I live, IRV has been proposed twice. I submitted a white paper this last time (Jan 2017) that not only explained the problems with IRV and why Condorcet was superior, it also analyzed the proposed law, section by section. I also pointed out in the paper that not only are there the aforementioned constitutional problems, Indiana statute has a requirement that the "intent of the voter" must be determined. The ballot has the intent of the voter in the form of the ranked information. Throwing some of that ranking information away thwarts voter intent. On that basis alone, IRV is unacceptable here.

  • Mickey Rat||

    They might have had to wait until after the election to obtain legal standing to file a suit.

  • itsjustbob||

    Plus, he is an incumbent in a district that Trump carried. Maine in 2016 to split their 2 electoral votes, one for Shill in the district consisting of the People's Republic of Portland and the rest of the state. He probably never imagined he wouldn't get 50%+1

  • Jgalt1975||

    It seems like standing would have been met once he was registered as a candidate -- the risk that he could be "injured" by the voting method was manifest at that time.

  • Diane Reynolds (Paul.)||

  • Echo Chamber||

    Oh, goody

  • ||

    Does she not realize the election is over? There's not that much political mileage left in Climate Change. She needs to save that shit for next summer, when Election 2020 starts.

  • itsjustbob||

    Those people do not want octogenarians calling the shots. Battle for the gavel may be fun

  • Diane Reynolds (Paul.)||

    House of Representatives shall be elected by the people, though it does not specifically state how that election should be decided, whether through a majority or plurality.

    The electoral college is made up of people. You know what else is made of people?

  • Shirley Knott||

    Soylent Hope?

  • JFree||

    A swarm of stupid

  • Dillinger||

    usually insects eat the elders?

  • Dillinger||

    supposed to be in O-C twitter post above ^^^

  • NoVaNick||

    So far, I have heard progs praise ranked-choice voting, probably because this race will go in their favor. Wait though until a ranked choice race goes against them, then they will scream that its disenfranchising (fill in identity group here) because the voting system is too complicated for such group to understand.

  • Brandybuck||

    Progressives are only for "participatory democracy" in progressive states. You never see them for participatory democracy in Texas or Florida.

  • Rev. Arthur L. Kirkland||

    You should expect to see Florida politics dominated by Democrats soon enough (improving electorate, restoration of voting rights). Texas might take a bit longer but the trends are similar (growing cities and suburbs, emptying rural areas, diversifying electorate).

    How many can't-keep-up states would it take to offset Democratic electoral votes in Texas and Florida?

  • Joe Emenaker||

    I'm a progressive and I'm in favor of RCV regardless of who wins Maine's house seat. In fact, I might actually *prefer* that the Republican lose his lawsuit but still win the election. Why? Because I wholeheartedly believe that RCV is a much better way to do democracy (it will encourage more centrist candidates, and it will allow voters to vote for other parties as their first choice - Lib, Green, whatever - without worrying that their vote will cost their might-actually-win second choice the election, and that will allow other parties to gain legitimacy in public perception). I somewhat what to see Poliquin still win because, if Republicans see the first test of RCV cost one of their team a race that they would, otherwise, have won, then it will be "RCV=bad" in the eyes of every conservatives for the foreseeable future, and we'll never see it tried in red states (in the same way that no red states will touch National Popular Vote with a ten-foot pole, since the GOP hasn't had a non-incumbent presidential candidate win the popular vote for two and a half decades). I'll gladly lose this battle if it means boosting democracy's immune system against another Trump.

  • Azathoth!!||

    See this? Right here^

    An admitted progressive wants this.

    That is all you need to know that this is not something that is good for liberty.

    At all.

  • Rev. Arthur L. Kirkland||

    'That guy's for it, so I'm against it' is a somewhat popular approach.

    I prefer the 'if the bigots are for it, I'm against it' flavor, but it is not infallible.

  • Hank Phillips||

    Like all dishonest hustles, this one points to imaginary future successes and clams up about the poor bastards who have fallen for the scam in six pathetic jurisdictions. Why not let a Reason reporter interview some victims about what has actually happened?

  • Paul Hager||

    I mentioned STV above. Progressives have wanted proportional representation for a long time. They discovered STV is used in Australia and observed that the a variant of the algorithm is a straightforward sequential runoff in a single-seat race (that is, IRV). Recently, some of the FairVote people let the cat out of the bag. They want to increase the number of Representative by a factor of three and have 3 Reps per district. STV would be used to select. I know this sounds like some crank conspiracy theory but that's really what's going on here. Ironically, it is possible to use Condorcet to produce a proportional representation outcome (I still oppose PR). Perhaps the fact that STV is in actually use has resulted in cognitive vapor lock on the part of advocates.

  • MatthewSlyfield||

    " and it's not really clear from that case that the judges are saying that a plurality must be the rule either."

    If plurality is a mandatory rule, wouldn't that bar not just the relatively new ranked choice voting, but the run-off systems that have existed for some time in several states?

  • Brandybuck||

    What a maroon...

  • John C. Randolph||

    If a judge overrules two voter initiatives because some Ruling Party douchebag whines about losing, the judge, the douchebag, and the douchebag's mouthpiece should all be stripped of their citizenship and deported to a desert island.

    -jcr

  • kevrob||

    Regarding ME, the laws approved by initiatives are not also constitutional amendments, according to Ballotpedia . That might make the challenge credible in state court, regarding, state offices, but I bet the Feds won't touch this. Runoffs, and "jungle primaries," as in LA and CA have survived Federal scrutiny. Note; IANAL, but I do have a decades-old PoliSci B.A. I vote all Libertarians who are running, then MAYBE some other party if an L isn't running, and the race is not a walkover. If it is, I'll write in a candidate or "None of the above." This year I voted for a black Republican incumbent, who seems to have been returned to the State Senate by an 85 vote margin. The Dems blew the Reps out in Senate seats, ~ 2-1. I write in NOTA in races where Duopoly candidates run unopposed. In the lower house, I got to vote for the CT House minority leader , a former 1990s fitness champion and WWE Ring Girl! 2 years on, she still looks good, but not like this!

  • kevrob||

    That last link should have been titled "25 years on." Sorry.

  • Paul Hager||

    Slightly off-topic question, kevrob. When you took PoliSci, did you learn about the Marquis de Condorcet? I ask because for the last 20-odd years I've asked PoliSci majors and recent graduates if they'd ever hear of him. To a person the answer was, "no"!! I find this appalling because Condorcet was one of the most brilliant minds of the 18th Century, he practically developed social choice theory and actually coined the term political science. That he is apparently not taught in modern undergrad PoliSci is incomprehensible to me.

    My survey has been very unscientific - still pretty amazing that both where I live and on my travels, ignorance of Condocet by those who should know, is consistently the case.

  • Uncle Jay||

    This idea of voting has to stop.
    Since when should the under-educated masses be allowed to decide for themselves what kind of idiot they want to represent them?
    There are plenty of clueless, over-educated idiots out there that should that should be permanent members of the Politburo.
    This idea worked in the Soviet Union, Cuba, the PRC and host of other enlightened, free and progressive states.
    It would work here as well if we just give it a chance, like Comrade Premier Maduro of Venezuela.
    Now there's someone who knows how to run a country.
    Just ask Sean Penn.

  • Rev. Arthur L. Kirkland||

    This morning, I watched one of Rick Scott's mouthpiece's -- and the entire Fox & Friends crew -- ranting about how 'sticking with the rules everyone understood going into the election, with no exceptions' was the only American way.

    This afternoon, I read that Republicans are trying to avoid those rules in Maine.

    For those attempting to maintain an electoral coalition for backwardness and intolerance in modern America, consistency and principles appear to be unaffordable luxuries.

  • Seamus||

    The Rev. would prefer that the Republicans stand up for principle in Florida, and get screwed by the courts there who say, "Fuck principles, we're here to elect Democrats," then stand up for principle in Maine and get screwed by their principles.

    I, personally, think the Republicans' position in Maine is wrong, and that they lost that election fair and square, but then I'm not a Republican, much less a Republican political boss. But if the legal argument has a better than trivial chance of winning in court, it would be nuts for Republican political bosses to lay down in Maine and play dead, when the Dems are leaving no stone unturned to capture seats across the country.

  • Lee Moore||

    I should have thought that Poliquin has a much better chance in federal court running the argument that the adoption of RCV by ballot initiative is unconstitutional. It would be a rerun of the Arizona Redistricting Commission case which was 5-4 to the libs in SCOTUS, with Kennedy providing the 5th vote. Poliquin would lose all the way up to SCOTUS, but Kennedy has now been replaced by Kavanaugh, and so it'd probably go 5-4 the other way now. It's hardly been long enough to establish a irreversible precedent, and Roberts' dissent was pretty scathing, so although he's Head Squish these days on the conservative side of the court, it's hard to see him treating Arizona Redistricting as a solid precedent.

    I'd expect Arizona to be reversed anyway, in due course, on a lawsuit about redistrciting commissions imposed by ballot initiative, but Poliquin might get there first.

  • Azathoth!!||

    All of these leftist inspired schemes to make voting more 'fair' or 'better', or 'easier' or whatever are designed to simplify their path to eliminating the possibility of voting for anyone but them.

    Open primaries
    Top two
    non-partisan ballots
    NPV
    RCV

    Even the constant pretense that there aren't enough choices on our ballots.

    All of this is designed to get us to the Last Vote. The one that let's them take that last freedom from our grateful hands. The one where we all joyously cede power to them, forever.

    Haven't any of you been paying attention?

  • Paul Hager||

    Actually, the only hope for the LP is the adoption of Condorcet. Without it, we're essentially stuck with a two-party system. I'll note that Approval Voting (AV), which is not a ranked system, might also make it possible for people to vote for 3rd parties without the split-vote problem. Many years ago, I pushed AV because it was cheap and simple to implement and use. Tried to convince the Indiana Libertarian Party to devote resources to it. They were uninterested and I quit the party.

    Some Libertarians back then did discover IRV and were pushing it, not realizing what a terrible system it actually is. Runoff systems may allow for a small number of people from 3rd parties to be elected but they almost never produce any sort of turnover. Condorcet has a chance of doing that because 3rd parties are no longer penalized by the voting system. A 3rd party candidate still has to be a majority winner - (s)he has to EARN the seat. But it is possible. If libertarian ideas are good - I think they are - and we eliminate the voting system (either plurality or IRV) as an impediment, I think libertarians will eventually prevail.

  • Hank Phillips||

    Every place that has adopted gauntlet voting has turned into what Trump could rightly refer to as a shithole: Australia (Blackouts), Ireland (Female Forced Labor), New Zealand, Northern Ireland, and Scotland (Ceausescu Abortion laws), and Malta (Comstock law birth control bans). In none of those places is there a healthy Libertarian Party.

  • EscherEnigma||

    To be fair, there is no "healthy libertarian party" *anywhere*.

  • kevrob||

    Voting by throwing down the armored glove of a knight? Is this like trial-by-combat? :)

  • Paul Hager||

    Exactly. IRV/STV doesn't deliver the goods. The ONLY system that gives 3rd parties a chance where single-seat races are the norm is Condorcet.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online