By Rep. Brian Hubbell
In November of 2016, by a vote of 388,273 to 356,621 (52 percent to 48 percent), Maine passed a citizen initiative that established ranked-choice voting for state and federal offices in order to assure that future elections were won by a majority of votes rather than a plurality.
On May 23, 2017, Maine’s Supreme Court advised the Legislature in a unanimous opinion that the provisions of the initiated bill related to elections to state office were unconstitutional because the state constitution awards election to candidates who receive a plurality of votes.
In response to the law court’s opinion, the Legislature debated a resolution which would have sent a question to referendum amending the constitution to allow ranked-choice voting in state elections.
On June 23, with a vote of 78-68, this resolution failed to receive the necessary two-thirds threshold for passage in the House. I voted with the majority in support of the resolution because I thought that best represented the interests of the voters.
Following the failure of the constitutional resolution on Monday, Oct. 23, the Legislature reconvened in special session to act on LD 1646, An Act To Bring Maine’s Ranked-choice Voting Law into Constitutional Compliance, a bill drafted to amend the statute to remove the constitutional problems of the citizen initiative.
This bill sought to amend the ranked-choice voting law by applying the provisions of the law only to primary elections (for both state and federal offices) and to general elections for federal offices.
The bill would not allow ranked-choice voting to be used for general elections for state offices unless an amendment to the Maine Constitution that authorizes the Legislature, by proper enactment, to determine the method by which the governor and members of the State Senate and House of Representatives are elected is ratified. The bill also required the secretary of state to adopt routine technical rules for the administration of ranked-choice voting, including the administration of recounts.
In the House, in a vote of 74-64, I voted with the majority to pass this bill with an amendment to include funding for implementation in order to preserve the constitutionally permitted portions of ranked-choice voting.
The bill then went to the Senate where, in a vote of 19-16, the Senate voted instead to return the bill to the House with an amendment which delayed the implementation of ranked-choice voting until after December 2021. This amendment repealed ranked-choice voting after that date unless the state constitution is amended.
Back in the House, the Republican floor leader moved that the House “recede and concur” with the Senate to delay implementation of ranked-choice voting and repeal it unless the constitution were amended. In a vote of 61-77, I voted with the majority in opposition to delay and repeal.
After that motion failed, the bill’s sponsor moved that the House “insist” on the bill without the Senate’s amendment to delay and repeal, which would have sent the bill back to the Senate in nonconcurrence. I voted with the 59-79 minority in favor of the motion to insist. I believed that the unamended bill best represented the will of the voters to implement ranked-choice voting directly to the greatest extent that the constitution allows.
After the failure of that motion, as the bill remained in nonconcurrence with the Senate, the Democratic floor leader moved that the House “recede” to clear the way to consider an alternate compromise amendment, which would have preserved rank-choice voting for primaries and federal offices without the contingency of the passage of a constitutional amendment and which delayed implementation for one year. I voted with the 53-85 minority in favor of that motion because I considered that compromise at that point to be the best prospect for the bill’s passage.
After the failure of that motion, the Republican floor leader again moved that the House recede and concur with the Senate amendment to delay and repeal. I voted in the 73-65 minority against that motion because I still hoped that a compromise that preserved at least portions of ranked-choice voting might be reached in the Senate if the bill were returned in nonconcurrence.
Once the House concurred with the Senate amendment to delay implementation for two years, failure to enact would leave the citizen-initiated law in place in conflict with the constitution. That would risk a constitutional crisis that would almost certainly follow with a court challenge over a state election in which a candidate received a plurality but not a majority of the vote.
So, to avoid triggering a constitutional crisis over the next statewide election for governor, on final enactment, I voted with the 68-63 majority in favor of the amended bill because, despite the contingent prospects for repeal, the amended bill at least eliminates the constitutional problems and allows for the possibility of a constitutional amendment going forward.
The alternative, the Legislature’s failure to enact anything at all, which would leave in place the constitutional flaws of the initiated bill potentially throwing future state elections into chaos, I believe would be both irresponsible and a violation of my oath of office.
Brian Hubbell represents Bar Harbor, Lamoine and Mount Desert in the Maine State House of Representatives.