How people elect parliaments
A judicial interpretation of mid-19th century terminology has trashed the desire of the citizens of the US state of Maine to start electing their politicians by preferential voting.
In November 2016 voters in Maine approved a proposed law that would have seen future elections for state and national legislators and the state governor elected by ‘ranked choice voting’ – the term Americans use for preferential voting.
Maine politics has a strong independent streak. One of their current national senators is independent politician Angus King, and in several recent electoral cycles Maine governors have been elected with pluralities of the vote, but not majorities.
The governor and all legislators are currently elected by plurality, or first-past-the-post, voting. The city of Portland, however, is one of a number of US municipalities where preferential voting has been adopted for local elections.
But the word ‘plurality’ has proved the undoing of the voters’ law amending the state electoral system.
During the mid-19th century the state constitution was amended on a number of occasions to include the term ‘plurality’, to avoid older rules that provided that the legislature would itself fill elected positions which failed to secure a majority – more than 50% – of votes. By 1880 the state constitution included references to legislative and governorship election winners being the candidate “…elected by a plurality of the votes.”
The historical record shows that ‘plurality’ phrasing was quite deliberately adopted. The prior constitutional wording had been that if candidates for election as state governor or as legislators did not win a majority, the decision would be taken from the voters and instead decided by the politicians then sitting in the legislature.
To address what was seen as a non-democratic result, the state constitution was changed to declare that ‘plurality’ winners would be elected even without majorities, on the basis that this was closer to the electorate’s actual opinion that an indirect choice of governor by the legislature. The changes were, however, applied to elections for governor and also for legislators.
In the 1850s the concept of preferential voting was largely unknown – or at least never before tried – in regard to US elections, so the use of the term plurality to solve the dispute in Maine at that time makes sense in hindsight.
The concept of preferential voting began to develop in electoral science in the late 1850s in Britain, and was promoted in the US by Harvard academic William Ware in the 1870s.
Yesterday the Maine Supreme Judicial Court, considering a reference from the state Senate, ruled that given the ordinary modern meaning of the term ‘plurality’, the state constitution does not allow room for an electoral statute to introduce preferential voting for the governorship or legislative positions.
The Court also rules that the state constitution requires the electoral officials to collate the election results by city and township and then aggregate them, a process which on a narrow interpretation would make implementing preferential vote counting awkward.
The promoters of preferential voting reform, led by the state’s Committee for Ranked Choice Voting, foresaw all these constitutional objections, which were argued by opponents of reform during the debate in 2016. Practical solutions and ways of interpreting the state constitution so as to allow the will of the voters to prevail were developed in advance and argued to the Court, but they were not accepted.
The constitutional blockages in the text of the constitution are in fact fairly trivial procedural issues, manifestly less substantial than the key issue of choosing preferential voting over plurality voting as a basic mode of electing representatives, which principle the voters clearly endorsed last year.
But again, the blockages are in the state constitution, which prevails over the policy proposed through the legislation, even if it is voter-endorsed legislation.
The promoters of the reform have the option of starting over again, and working for an amendment to the state constitution itself. Efforts to follow that path are already being suggested.
But a constitutional change would require reform bills to get bipartisan support in the current state legislature, which seems unlikely.
The Maine state legislature currently has a Democrat majority in the House of Representatives, but a 1-seat Republican majority in the state Senate. Special majorities in both houses are required to launch constitutional amendments.
Republican politicians in Maine have mostly opposed the preferential voting reform. It is more favoured by Democrats and their supporters, and is particularly popular with non-partisan voters.
The difficulty is now that the 2016 law remain on the books, and has the legitimacy of having been already approved by the electorate at a referendum. But pressure on the state’s Republican governor and legislators to cooperate does not seem likely to succeed.
While the preferential voting law was due to start operating at the 2018 elections, state officials had not moved to update their procedures until the supreme court decision was handed down.
Implementing the law would not require lengthy preparation, as no changes to district boundaries, nomination procedures or other key election procedures would be required. The difference would apply at the counting stage, which would require aggregation of first preference votes around the state and the conduct of candidate elimination and ballot transfer rounds of counting.
However candidates would want to know in advance what rules they were working under. In particular, the choice of system strongly influences whether independent candidate make serious bids for office, and how party primaries might be conducted.
This complex matter is not concluded by today’s state Supreme Court’s opinion, in any case. Under the procedures for the legislature to seek such an opinion outside of normal litigation, the opinion handed across today is only advisory in nature. While it places the Maine legislature and government in an awkward position, it has no direct legal effect.
The preferential voting law adopted in November 2016 therefore remains technically valid state law.
The import of the ruling, however, is that if the government of Maine attempted to conduct an election under the law, a legal challenge would be highly likely to succeed. The fact that the state Supreme Court’s seven judges were unanimous in the opinion given today strengthens that prediction.
But the government of Maine cannot ignore the legislation either. Awkwardly, the politically divided legislature must either support the law by seeking a constitutional amendment (which might not pass), or somehow compromise on repealing the law, or somehow modifying it to avoid the constitutional problems
Finally, the Court’s opinion today only relates to the state constitutional provisions relating to the election of members of the two houses of the state legislature and the state governor.
But the enacted 2016 law also applies to the election of Maine members of the United States Congress, including US Senators. The election procedures for these offices are determined by the national Constitution, federal law and state law, but not by the state constitution.
If elections for those offices need to be conducted in 2018 under preferential voting, the voters of the state would be presented with two different balloting processes when they go to vote.
Such an awkward process would, at least, demonstrate to all observers how preferential voting can fairly easily be carried out, despite the technologically outdated procedural requirements of the 1850s constitutional language which the state Supreme Court has today backed.
Henry Grabar, Maine Voted for a Better Way to Vote. The Courts Just Shot It Down, Slate.com, 23 May 2017
Michael Shephard, Maine Supreme Judicial Court rules ranked-choice voting unconstitutional, Bangor Daily News, 23 May 2017
Opinion of the justices of the Supreme Judicial Court of Maine, 23 May 2017
27 May: The state legislature will consider two competing bills, one to repeal the voters’ election law and the other to seek an amendment to the state constitution to clear the path to implementing it. Since the two houses of the legislature have different partisan majorities, it is possible that neither bill will be fully approved.