In re Op. of the Justices, Docket No. OJ–17–1

162 A.3d 188

OPINION OF THE JUSTICES of the Supreme Judicial Court Given Under the Provisions of Article VI, Section 3 of the Maine Constitution

Docket No. OJ–17–1

Supreme Judicial Court of Maine.

QUESTIONS PROPOUNDED BY THE MAINE SENATE IN A COMMUNICATION DATED FEBRUARY 2, 2017

ARGUED APRIL 13, 2017

ANSWERED MAY 23, 2017

REVISED SEPTEMBER 19, 2017

Timothy C. Woodcock, Esq. (orally), Ryan P. Dumais, Esq., and Kady S. Huff, Esq., Eaton Peabody, Bangor, for the Maine State Senate

Catherine R. Connors, Esq., and Joshua D. Dunlap, Esq. (orally), Pierce Atwood, LLP, Portland, for the Maine House Republican Caucus and the Maine Heritage Policy Center

Janet T. Mills, Attorney General, Susan P. Herman, Dep. Atty. Gen., Phyllis Gardiner, Asst. Atty. Gen. (orally), and Thomas A. Knowlton, Asst. Atty. Gen., Office of the Attorney General, Augusta, for the Attorney General and the Secretary of State

Katherine R. Knox, Esq., Bernstein Shur, Augusta, for Senators Troy Jackson, Mark Dion, Shenna Bellows, Ben Chipman, Justin Chenette, Rebecca Millett, David Miramant, and Eloise Vitelli

James T. Kilbreth, Esq. (orally), David M. Kallin, Esq., and Emily T. Howe, Esq., Drummond Woodsum, Portland, for The Committee for Ranked Choice Voting

Rachel M. Wertheimer, Esq. (orally), Jonathan M. Dunitz, Esq., Marie J. Mueller, Esq., and Samuel J. Baldwin, Esq., Verrill Dana LLP, Portland, for the League of Women Voters of Maine and Maine Citizens for Clean Elections

Clifford Ginn, Esq., Ginn Law, LLC, Scarborough, T. Clark Weymouth, Esq., Hogan Lovells US LLP, Washington, D.C., and G. Michael Parsons, Jr., Esq., Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., for FairVote

Marshall J. Tinkle, Esq., Thompson, MacColl & Bass, LLC, PA, Portland, pro se

Dmitry Bam, Esq., University of Maine School of Law, Portland, pro se

Larry Diamond, Hoover Institution, Stanford, California, pro se

QUESTIONS PROPOUNDED BY THE MAINE SENATE IN A COMMUNICATION DATED FEBRUARY 2, 2017

WHEREAS, it appears to the Senate of the 128th Legislature that the following are important questions of law and that this is a solemn occasion; and

WHEREAS, the Constitution of Maine, Article VI, Section 3 provides for the Justices of the Supreme Judicial Court to render their opinion on such questions; and

WHEREAS, separate provisions of the Constitution of Maine, adopted at different times, provide that persons elected to the House of Representatives and as Governor shall be elected "by a plurality of all votes returned," Me. Const. art. IV, pt. 1, § 5 and art. V, pt. 1, § 3, and those elected to the Senate "by a plurality of the votes in each senatorial district," Me. Const. art. IV, pt. 2, § 4 ; and

WHEREAS, Article IV, Part First, Section 5 of the Constitution of Maine provides that in elections for the House of Representatives, "the election officials of the various towns and cities shall ... receive the votes of all the qualified electors, sort, count and declare them in open meeting; and a list of the persons voted for shall be formed, with the number of votes for each person against that person's name. ... Fair copies of the lists of votes shall be attested by the municipal officers and the clerks of the cities and towns [who] shall cause the same to be delivered into the office of the Secretary of State forthwith ... [and] [t]he Governor shall examine the returned copies of such lists and ... shall issue a summons to such persons as shall appear to have been elected by a plurality of all votes returned, to attend and take their seats."; and

WHEREAS, Article IV, Part Second, Section 3 of the Constitution of Maine provides that meetings for the election of Senators "shall be notified, held and regulated and the votes received, sorted, counted, declared and recorded, in the same manner as those for Representatives. Fair copies of the lists of votes shall be attested by the clerks of the cities and towns or other duly authorized officials and sealed up in open meetings and ... delivered into the office of the Secretary of State forthwith."; and Article IV, Part Second, Section 4 further provides that "[t]he Governor shall ... examine the copies of such lists, and ... issue a summons to such persons, as shall appear to be elected by a plurality of the votes in each senatorial district, to attend that day and take their seats."; and

WHEREAS, Article V, Part First, Section 3 of the Constitution of Maine provides that "meetings for election of Governor shall be notified, held and regulated and votes shall be received, sorted, counted and declared and recorded, in the same manner as those for Senators and Representatives. Copies of lists of votes shall be sealed and returned to the secretary's office in the same manner and at the same time as those for Senators. The Secretary of State ... shall ... lay the lists returned to the secretary's office before the Senate and House of Representatives to be by them examined, ... and they 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."; and

WHEREAS, Article V, Part First, Section 3 of the Constitution of Maine further provides that "[i]f there shall be a tie between the 2 persons having the largest number of votes for Governor, the House of Representatives and the Senate meeting in joint session, and each member of said bodies having a single vote, shall elect one of said 2 persons having so received an equal number of votes and the person so elected by the Senate and House of Representatives shall be declared the Governor."; andWHEREAS, on November 8, 2016, the voters of the state approved a measure referred to the people pursuant to Article IV, Part Third, Section 18 of the Constitution of Maine, entitled An Act To Establish Ranked-choice Voting, referred to in this order as "the Act," which creates new methods of casting ballots for candidates, counting votes and determining elections for the offices of Governor, State Senator and State Representative, as well as the offices of United States Senator and Representative to Congress, and applies to elections held on or after January 1, 2018; and

WHEREAS, section 2 of the Act defines "ranked-choice voting" as "the method of casting and tabulating votes in which voters rank candidates in order of preference, tabulation proceeds in sequential rounds in which last-place candidates are defeated and the candidate with the most votes in the final round is elected"; and

WHEREAS, the Act provides that "[f]or offices elected by ranked-choice voting, the Secretary of State shall tabulate the votes according to the ranked-choice voting method described in [the Maine Revised Statutes, Title 21–A,] section 723–A" as enacted by section 5 of the Act; and

WHEREAS, the method of ranked-choice voting described in the Act does not allow the Secretary of State to aggregate the lists of votes compiled by city and town officials and submitted to the Secretary as required by the Constitution of Maine as set forth above, but instead necessitates that all ballots or images of ballots cast by voters within the entire electoral district be delivered to a central location in order for the Secretary of State to conduct multiple rounds of counting and redistributing voter preferences in each subsequent round of counting using specially designed computer software; and

WHEREAS, the Attorney General issued an opinion on March 4, 2016, to the effect that the system of ranked-choice voting established in the Act conflicts with provisions of Article IV, Part First, Section 5 ; Article IV, Part Second, Sections 3 and 4; and Article V, Part First, Section 3 of the Constitution of Maine, which declare that ballots are to be counted by municipal officials and that the winner of each electoral race is the candidate who received a plurality of the votes cast and counted at the municipal level, and further that the ranked-choice method of resolving a tie vote in a race for Governor conflicts with Article V, Part First, Section 3 ; and

WHEREAS, the Act appears to conflict with the Constitution of Maine inasmuch as it would not recognize a person obtaining a plurality of the votes counted and declared by city and town officials as having prevailed in the election; would fundamentally change the role of city and town officials in sorting, counting, declaring and recording votes and would transfer those duties to the Secretary of State; and would eliminate the role of the House of Representatives and the Senate in resolving tie votes for the office of Governor; and

WHEREAS, the Act's provision for resolving tie votes for Governor by lot conflicts with duties that the Constitution of Maine imposes on Representatives and Senators under such circumstances pursuant to Article V, Part First, Section 3 and, therefore, would require them to violate their oath of office pursuant to Article IX, Section 1 of the Constitution of Maine ; and

WHEREAS, if the Act were applied to elections in 2018 without resolution of the constitutional questions presented here, a candidate for Representative, Senate or Governor who gained a plurality of the votes counted by city and town officials but failed to prevail in the subsequent round or rounds counted centrally by the Secretary of State pursuant to the Act could challenge that candidate's declared loss as violative of the plurality vote requirement in the Constitution of Maine for the position sought by that candidate, and thereby place the validity of the election into question and delay the seating of a Representative, Senator or Governor; and

WHEREAS, failing to address important and unresolved questions of law about the constitutionality of ranked-choice voting before the end of the current legislative session would create uncertainty over the outcome of any future election contests involving more than 2 candidates; and

WHEREAS, the Senate requests guidance from the Justices as to the...