Thibodeau, 030416 MEAGO, AGO 2016-1

• Case Date: March 04, 2016
• Court: Maine

Hon. Michael D. Thibodeau AGO 2016-1 No. 2016-01 Maine Attorney General Opinions State of Maine Office of the Attorney General March 4, 2016          Hon. Michael D. Thibodeau          President of the Senate          3 State House Station          Augusta, Maine 04333-0003          RE: Ranked-choice Voting          Dear Senator Thibodeau:          You asked whether L.D. 1557, An Act to Establish Ranked-choice Voting, presents any constitutional concerns with regard to the provisions of the Maine Constitution applicable to elections for Governor (Art V, pt. 1, § 3), State Senators (Art. IV, pt. 2, §§ 3-4), and State Representatives (Art, IV, pt. 1, § 5), The bill proposes a new method of determining elections for the offices of United States Senator, Representative to Congress, Governor, State Senator and State Representative, and for primary elections to determine the nominees for those offices. The Maine Constitution contains no specific provisions relating to elections for Congress or the United States Senate, and primary elections are created by statute. Accordingly, we will address only those issues relating to general elections for Governor, State Senate and State Representative.^[1]          Since L.D. 1557 is a citizen-initiated bill, It must be presented to the voters at the general election next November, with or without a competing measure, unless the Legislature enacts- it without change tills session. Me. Const, art, IV, pt. 3, § 18, cls, 2.          We have received comments from some legislators and others urging our office not to address the constitutionality of L.D, 1557 before the initiative is presented to the voters. The Justices of the Maine Supreme Judicial Court have advised that a citizen initiative must be submitted to the voters (if not enacted by the Legislature) even if it presents constitutional issues, See Opinion of the Justices, 673 A.2d 693, 697 (Me. 1996) (Congressional term limits initiative must be sent to voters at referendum election if not enacted by Legislature "notwithstanding the fact that the bill is unconstitutional as written"). Nonetheless, on several occasions the Justices have answered questions about the constitutionality of initiatives at the Legislature's request, before the voters had an opportunity to cast a ballot. See, e.g., Opinion of the Justices, 2004 ME 54, ¶¶ 5-7 (constitutionality of Palesky tax cap petition); Opinion of the Justices,623 A.2d 1258, 1262 (Me, 1993) (constitutionality of initiative setting term limits for state officials).^[2] Attorneys General have also issued opinions on several occasions, even though it was likely that the office would be called upon to defend the proposed law if enacted by the voters.^[3]          By illuminating the constitutional issues presented by a bill pending before the Legislature or the citizens, we are in no way attempting to tip the scales at the election on the ballot question. Rather, we are simply providing information that legislators and voters may consider when voting on an initiated bill, as this office has often done in the past.          Relevant constitutional provisions          The process for the election of State Representatives is set/forth in Article IV, part first, section 5 of the Maine Constitution (emphasis added):

The meetings within this State for the choice of Representatives shall be warned in due course of law by qualified officials of the several towns and cities 7 days at least before the election, and the election officials of the various towns and cities shall preside impartially at such meetings, 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 and the city and town clerks respectively shall cause the same to be delivered into the office of the Secretary of State forthwith. The Governor shall examine the returned copies of such lists and 7 days before the first Wednesday of December biennially, 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.

         The constitutional provision relating to the election of State Senators is worded in a similar manner and declares that the votes "shall be received, sorted, counted, declared and recorded, in the same manner as for Representatives" Me. Const, art. IV, pt 2, § 3 (emphasis added). The lists of votes are to be attested by the municipal clerks and delivered to the Secretary of State's office, Id The Governor is then required to "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 and take their seats." Id, § 4 (emphasis added).          The Constitution includes a parallel provision for counting votes in elections for Governor, in Article V, part first, section 3:

The 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 for the time being shall, on the first Wednesday after the first Tuesday of January then next, lay the lists returned to the secretary's office before the Senate and House of Representatives to be by them examined, together with the ballots cast if they so elect, 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 the votes returned they shall declare and publish the same,

         Four essential elements ate common to these constitutional provisions: 1) the votes for all of these offices must be received, sorted, counted and declared-in open meeting by local election officials; 2) local officials in each municipality must create "a list of the persons voted for., .with the number of votes for each person against that person's name" and transmit those lists to the Secretary of State; 3) the Secretary of State must receive and transmit the lists to the appropriate body or official (to the Governor, for election results 6f House and Senate races, and to the House and Senate for results of a gubernatorial race); and 4)the winners of the election for each office are determined by plurality.          How L.D. 1557 proposes to change the election process          As the Secretary of State described in a fiscal impact statement prepared for this citizen initiative, on October 20, 2014:

Currently, ballots are cast in 500 municipalities and counted on election night by hand (in 265 municipalities) or tabulated by a digital scan tabulator (in 235 municipalities). The municipal count determines a plurality winner for their town (i.e., the candidate with the most votes); the municipalities report their results to the Secretary of State; and the Secretary of State then aggregates the results from 500 municipalities into a single tabulation of the vote for each office and candidate.

L.D. 1557 does not amend the provisions of Title 21-A that specify how local election officials sort, count, declare and record the votes cast hi their respective municipalities, or how they prepare the election returns to submit to the Secretary of State, See 21-A M.R.S. §§ 695-712. Rather, the bill amends Title 21-A section 722 to provide that, instead of simply aggregating data from the municipal officials' election returns in a tabulation, as occurs now, the Secretary of State would "tabulate" election results based on the ranked-choice voting method described in a proposed new section 723-A. ^[4]          In elections for Governor, State Senator, State Representative, U.S. Senator and Congressional Representative, ballots would be designed to allow voters to rank all the candidates listed for a particular office (plus one write-in candidate) in order of the voter's preference. L.D. 1557, §§ 1 & 3. Thus in a 3-way race, instead of marking one vote on the ballot for candidate A, B or C, the voter could express a preference for all three candidates by ranking them as choice #1, 2 or 3 on the same ballot.^[5] All of the voters' first-choice votes would be tallied in round one. In a multi-candidate race, if one candidate were to win more than 50% of the total votes in the first tally, then that candidate would...