Republican U.S. Rep. Bruce Poliquin on Tuesday filed a lawsuit in federal court that seeks to block Maine election officials from conducting the nation’s first-ever ranked-choice voting tabulation in a federal race.
Poliquin and three other voters say the election initiative approved two years ago violates the U.S. Constitution in several ways.
But some legal scholars and ranked-choice advocates say Poliquin’s challenge is dubious and motivated by the fact that he could lose his 2nd Congressional District re-election contest to Democrat Jared Golden after the runoff is completed this week.
Poliquin led Golden by roughly 2,000 votes heading into the runoff, but an exit poll conducted by FairVote, Colby College and the Bangor Daily News suggests that Golden could win the runoff round with the help of second- and third-place rankings of voters who picked independents Will Hoar or Tiffany Bond as their first choice.
Addressing reporters at the State House on Tuesday, Poliquin attempted to frame his lawsuit as a defense of longstanding precedent for how federal elections have been carried out — that the winner is the one with the most votes on Election Day.
“What bothers is me is that we do not know if this vote-counting process is legal under the U.S. Constitution,” he said. “My job is to make sure I uphold and defend the Constitution.”
Earlier on Tuesday, Poliquin’s attorney, Lee Goodman, a former chairman of the Federal Elections Commission, attempted to make the legal argument that Maine’s ranked-choice voting law violates the U.S. Constitution in several ways.
He said state election officials should halt the runoff process now and wait for a federal judge to rule on the request for an injunction.
“We believe that to respect the people of Maine, we ought to wait until a federal court has given us that declaration,” Goodman said.
But legal experts and national advocates for the ranked-choice voting law are skeptical of the lawsuit, for reasons that go beyond its legal arguments.
Michael Morley, an associate professor at the Florida State University College of Law, said the timing of Poliquin’s lawsuit — after the election — probably won’t work in his favor because of something called laches, a legal term of art that essentially means that it comes too late.
“Courts are very reluctant to change the rules of an election after it’s already occurred,” he said.
But Goodman said during a press conference on Tuesday that filing the lawsuit earlier may have been too soon to get a favorable ruling.
“I believe everybody was hoping that we would never reach this point,” he said. “But we did reach this point.”
Goodman also said it wasn’t clear earlier that ranked-choice voting would be used, a curious statement given that state election officials declared months ago that it would be used for congressional races on Election Day. It was also used during the June primaries.
Goodman also asserts that ranked-choice voting violates the U.S. Constitution because winners must obtain a majority rather than just a plurality.
But Morley said that argument would mean that the several states that use runoffs to determine election winners would also be in violation of the law. He also noted that the court opinion that Poliquin’s lawsuit is leaning on merely allowed states to use plurality elections to determine winners.
“But that is different from saying that plurality-based voting is constitutionally mandatory — that you have to use plurality-based voting,” he said.
Morley also challenged the lawsuit’s assertion that ranked-choice voting violates the Constitution’s equal protection clause in the 14th Amendment because voters who pick just one candidate in a race have less of a say in the outcome of the election than those who rank multiple candidates.
Under ranked-choice voting, voters rank candidates in order of preference. If one of the candidates obtains a majority after the first count, they win. If there’s no majority winner, the candidate with the fewest first-place rankings is eliminated and each of their voters’ second choices are added to the tallies of the remaining candidates. The process continues this way until the ranking tabulation produces a winner or all the ballots are exhausted.
Morley said that under ranked-choice voting, all voters have the chance to rank as few or as many candidates as they want.
“If it turns out those second- and third-order preferences have already been eliminated from the running, well that happens in the context of other elections. It’s called voting for the losing candidate,” he said.
Rob Richie, president of FairVote, a group pushing ranked-choice voting in other states, said the lawsuit follows a national trend of politicians filing lawsuits when they don’t like election results.
“It’s essentially a ratcheting up of sore-loser behavior. And that’s the overall frame for this,” he said. “We see nothing in the lawsuit that is going to stick.”
Golden, who could be the first candidate to unseat an incumbent in the 2nd district since 1916, issued a statement saying Poliquin’s court challenge is an affront to the law.
And the law is what state election officials say they intend to follow until a judge tells them to stop counting ballots.
Late on Tuesday, Poliquin’s attorney filed a temporary restraining order hoping to stop that process. A hearing is scheduled with a federal judge in Bangor for Wednesday morning.
This article was originally published on November 13, 2018.
This segment aired on November 13, 2018.