Me. Senate v. Sec'y of State

183 A.3d 749

MAINE SENATE

v.SECRETARY OF STATE et al.

Docket: Ken–18–130

Supreme Judicial Court of Maine.

Argued: April 12, 2018

Decided: April 17, 2018

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

Phyllis Gardiner, Esq. (orally), and Thomas A. Knowlton, Esq., Office of the Attorney General, Augusta, for the Secretary of State

James G. Monteleone, Esq. (orally), and Michael R. Bosse, Esq., Bernstein Shur, Portland, for the Committee for Ranked–Choice Voting, Lucas St. Clair, Mark Eves, Diane Russell, Betsy Sweet, and Ben Chipman

Timothy R. Shannon, Esq., Rachel M. Wertheimer, Esq., Jonathan Dunitz, Esq., Marie M. Mueller, Esq., and Samuel Baldwin, Esq., Verrill Dana, LLP, Portland, for amicus The League of Women Voters of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

PER CURIAM

[¶ 1] The Superior Court (Kennebec County, Murphy, J. ) has reported seven questions to us pursuant to M.R. App. P. 24(a), addressing the Secretary of State's planned implementation of ranked-choice voting in Maine's primary elections scheduled for June 12, 2018.¹ The first three questions are substantive, and the remaining questions address the justiciability of those first three questions. This opinion focuses only on the June 2018 primary election; it does not address any other potential application of ranked-choice voting in Maine.

[¶ 2] We accept the Report, answer Question 3 on its merits, conclude that the other questions raise nonjusticiable issues, and remand the matter to the Superior Court for entry of a final judgment. In summary:

(1) We assume, without deciding, that the Maine Senate, a single body of the bicameral Maine Legislature, has standing to seek a declaration regarding the legal status of ranked-choice voting in the June 2018 primary elections and to challenge in court the operational planning of the Secretary of State, who is a constitutional officer;

(2) We answer Reported Question 3 and determine that ranked-choice voting is the current statutory law of Maine for the primary elections to be held on June 12, 2018;

(3) We determine that Reported Questions 1 and 2, which ask the Court to act in contravention to the constitutional provision respecting the separation of powers of the three independent Branches of government, are not justiciable; and

(4) We determine that the remaining questions are moot.

I. BACKGROUND

[¶ 3] The history of ranked-choice voting in Maine to date could provide the substance of an entire civics course on the creation of statutory law in the State of Maine. We provide the highlights here.

[¶ 4] In 2016, the people of Maine enacted citizen-initiated legislation to implement ranked-choice voting for general and primary elections occurring on or after January 1, 2018, for the offices of United States Senator and Representative, State Senator and Representative, and Governor.² L.D. 1557, §§ 1–6 (referred to the voters, 127th Legis. 2016) (effective Jan. 7, 2017) (codified at 21–A M.R.S. §§ 1(27–C), 1(35–A), 601(2)(J), 722(1), 723–A (2017) ); see Me. Const. art. IV, pt. 3, § 18. The Ranked–Choice Voting Act³ created by the citizens' initiative did not, however, amend 21–A M.R.S. § 723(1) (2017),⁴ which states that "[i]n a primary election, the person who receives a plurality of the votes cast for nomination to any office, as long as there is at least one vote cast for that office, is nominated for that office." Thus, section 723(1) continued to provide that the winner of a primary election would be determined by a plurality of the votes, even while section 1(27–C) named primary elections as among those elections to be conducted using ranked-choice voting.

[¶ 5] On May 23, 2017, at the request of the Maine Senate pursuant to Me. Const. art. VI, § 3, we, as individual Justices of the Maine Supreme Judicial Court, issued a unanimous Advisory Opinion stating that specific aspects of the RCVA conflict with three portions of the Maine Constitution— Me. Const. art. IV, pt. 1, § 5 ; Me. Const. art. IV, pt. 2, § 4 ; and Me. Const. art. V, pt. 1, § 3. Opinion of the Justices , 2017 ME 100, ¶¶ 1, 7, 9, 57, 64–68, 72, 162 A.3d 188. Those sections address the election of the Governor and members of the Maine Legislature, both Senators and Representatives.⁵ Me. Const. art. IV, pt. 1, § 5 ; Me. Const. art. IV, pt. 2, § 4 ; Me. Const. art. V, pt. 1, § 3.

[¶ 6] In the months that followed, a number of legislative efforts were commenced regarding ranked-choice voting. See L.D. 1256 (128th Legis. 2017); L.D. 1624 (128th Legis. 2017); L.D. 1625 (128th Legis. 2017). Ultimately, the Legislature enacted "An Act To Implement Ranked-choice Voting in 2021," which we refer to as the Implementation Act. P.L. 2017, ch. 316, §§ 1–14 (effective Feb. 5, 2018); see Comm. Amend. B to L.D. 1646, No. H–568 (128th Legis. 2017). The Implementation Act, P.L. 2017, ch. 316, §§ 1–14, had two essential components:

• It delayed all aspects of the implementation of ranked-choice voting until December 1, 2021, and• It provided for an automatic repeal of all ranked-choice voting provisions on December 1, 2021, if, by that date, the Maine Constitution had not been amended to allow ranked-choice voting for the offices of Maine Senator, Maine Representative, and Governor.

[¶ 7] Three days before the effective date of the Implementation Act, a people's veto of portions of the Implementation Act was initiated by the submission of signatures later certified by the Secretary of State. See Me. Const. art. IV, pt. 3, §§ 17, 20 ; 21–A M.R.S. §§ 901 – 906 (2017). Pursuant to Me. Const. art. IV, pt. 3, § 17 (3), the Secretary of State announced that the statewide vote on whether to veto the challenged portions of the Implementation Act would take place on June 12, 2018, the same day as the primary elections for the United States House and Senate, Governor, and State House and Senate.

[¶ 8] As a result of the initiation of the people's veto, certified by the Secretary of State, the effect of those challenged portions of the Implementation Act was "suspended" as of February 2, 2018, pending the vote on June 12, 2018. Me. Const. art. IV, pt. 3, § 17 (2). Critical to the matter before us, the delay of the implementation of ranked-choice voting until 2021 was suspended . As a result, the RCVA, along with certain portions of the Implementation Act, became immediately effective, thus effectuating ranked-choice voting for the June 2018 primary elections. See Me. Const. art. IV, pt. 3, § 17 (2).

[¶ 9] With the challenged portions of the Implementation Act suspended, the provisions of law that are pertinent to the primary elections are:

• The preexisting and unamended portions of the elections statutes,

• The provisions put in place by the citizens' enactment of the RCVA in 2016, and

• Those portions of the Implementation Act that are not suspended by the people's veto.⁶

[¶ 10] On February 16, 2018, the Committee for Ranked–Choice Voting and congressional and gubernatorial candidates Lucas St. Clair, Jim Boyle,⁷ Mark Dion, Mark Eves, Sean Faircloth, Diane Russell, Betsy Sweet, and Ben Chipman (collectively, the Committee) filed a complaint in the Superior Court against the Secretary of State seeking a declaratory judgment that the Secretary of State is required to implement ranked-choice voting in the primary elections. Comm. for Ranked–Choice Voting v. Sec'y of State , AUGSC–CV–2018–24, at 9 n.4 (Me. Super. Ct., Kennebec Cty., Apr. 3, 2018). We understand that the Secretary of State initially announced that his office would implement ranked-choice voting for the primary elections, with the initial result that the suit was not aggressively pursued.

[¶ 11] On March 29, 2018, the Secretary of State indicated that there was a conflict between 21–A M.R.S § 1(27–C) —directing the use of ranked-choice voting in primary elections—and 21–A M.R.S § 723 —providing for plurality winners in primary elections. Immediately after the Secretary of State raised this issue, the Committee pressed its suit, requesting a temporary restraining order "requiring the Secretary of State to continue the implementation of ranked-choice voting for the June 12, 2018 primary election."⁸ Comm. for Ranked–Choice Voting , AUGSC–CV–2018–24, at 9. The Senate did not move to intervene in the litigation commenced by the Committee.

[¶ 12] The court (Murphy, J. ), recognizing the urgency of the matter, conducted a hearing on the afternoon of March 29, 2018, and entered a thorough order dated April 3, 2018, to which the parties agreed, addressing and resolving the statutory conflict and requiring the Secretary of State to "continue implementation of the system of ranked-choice voting for the June 12, 2018 primary election in accordance with 21–A M.R.S. § 1(27–C) and 21–A M.R.S. § 723–A."⁹ Comm. for Ranked–Choice Voting , AUGSC–CV–2018–24, at 13–14. No appeal from that order has been taken, and the parties to that proceeding have indicated that no appeal will be pursued.

[¶ 13] On the same day that the Superior Court declared that ranked-choice voting would be applicable to the primary elections, the Maine Senate filed a five-count complaint against the Secretary of State seeking declaratory and injunctive relief to halt the implementation of ranked-choice voting in the primary elections. The parties agreed to a stipulated record, and, by order dated April 11, 2018, the Superior Court reported to us, pursuant to M.R. App. P. 24(a), the following questions.

1. Has the Senate proven, on the Stipulated Record appended hereto, that the Secretary of State's commitment or expenditure of funds for the purpose of implementing ranked-choice voting in the June 12, 2018 primary election constitutes a violation of the Legislature's appropriation authority or the Separation of Powers clause in the Maine Constitution, Article III, § 2, where the appropriation for the Secretary of State in the biennial budget law (

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