By Wendy Underhill

Maine’s Supreme Court provided an advisory opinion at the request of the state Senate on Tuesday. The import: Ranked choice voting in Maine is unconstitutional.

For a 1:10 second tutorial on ranked choice voting (RCV), watch this video. For a quick recap of recent RCV action, keep reading.

Last year Maine voters said “yes” to a citizens’ initiative to adopt ranked choice voting—aka instant runoff voting—to go into effect in 2018. Until that vote (and to this day), in the United States only a dozen or so municipalities use this alternative to winner-take-all voting.

It wasn’t a surprise that Maine was the first state. It has more experience than other states with major offices decided with a plurality, not a majority. For instance, its governor, Paul R. LePage, has been elected twice in three-way races with under 50 percent of the vote. For those who believe a majority should be required to win, runoff elections or ranked choice voting are the options.

After Maine said yes in 2016, 2017 saw more legislation introduced than ever before on ranked choice voting—at least 21 states had proposals. Utah’s came the closest to enactment, with HB 349 making it through the House.

The bill sponsor, Representative Rebecca Chavez-Houck (D), says this was a good year “in part because of the momentum with Maine.” She also credited her colleague, Representative Marc Roberts (R), who has introduced similar bills for a number of years.

According to Chavez-Houck, Utah, like Maine, has a political backstory that makes RCV worth a look-see. That comes from the Republicans’ experience with pluralities in their primaries.  With Utah’s law permitting candidates to get on a primary ballot either through the caucus/convention process or by gathering signatures, it is all too easy to have a crowded ballot. Crowded ballots make it more likely that the winner will be chosen with far below 50 percent. And, Utah’s GOP has used RCV for some of its internal party functions.

“I’m finding more apprehension in my own Democratic party, where they aren’t as used to it,” Chavez-Houck said this week. Just last week her interim committee held a hearing about ranked choice voting, in preparation for a new bill next year.

Back to Maine. What’s next? Here are some possibilities:

• The Legislature could put an amendment to the Constitution and send it to the people for a vote, which requires a two-thirds majority. (The bar is higher for an amendment than a statute.)
• The Legislature could repeal the law. 
• The law could stand, and elections be held with ranked choice voting. The court opinion warned the outcome would likely generate a lawsuit.
• Ranked choice voting could be used for federal races—races not covered by the state constitution and winner-take-all could be used for state offices. Just imagine explaining that to a new voter!

I can’t say the whole nation is watching what’s coming next, but I do know Chavez-Houck is: “We will look at the Utah Constitution vs. the Maine Constitution to see if that opinion would temper us here.”

For more, read what the Bangor Daily News has to say, or look at NCSL’s webpage on alternative voting systems, which includes a list of 2017 bills on ranked choice voting.

Wendy Underhill is NCSL’s program director for elections and redistricting.

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