How people elect parliaments
After two years of dogged insistence from an independent-minded community, voters in the US state of Maine have become the first in the nation’s history to elect representatives in their national Congress using a preferential voting system.
The elections for two Congress members from single-member districts, and one senator representing the whole state electorate, were conducted using ‘ranked choice voting’ (RCV).*
The senator (incumbent Angus King) and the member for congressional district 1 (incumbent Chellie Pingree) were re- elected with outright majorities of the vote.
But in congressional district 2, which occupies the very north-east corner of the United States bordering Canada, the decision ‘went to preferences’, as Australians say.
In the first-preference tally following a 4-candidate contest, the incumbent Republican Bruce Polonquin led with 46.4% of the vote to Democrat challenger Jared Golden’s 45.5%. Two independent candidates won 5.7% and 2.4% respectively.
In the days that followed, the ballot papers were all gathered in a central location and recounted. The two independents candidates were then declared eliminated in turn, and the ballots on which voters had marked the independents as their first preference were transferred to the tallies of Polonquin or Golden.
In the final count, Golden won the election with 50.5% of the vote to Polonquin’s 49.5%.
As the initial first preference count became clear, Polonquin attempted to stall the counting of votes by legal action. Despite having participated in the election under the existing law, the incumbent abruptly claimed that the law was in breach of the US Constitution.
A ripple of alarm ran through the state when the case was allocated to the United States District Court for Maine’s newest member, Judge Lance Walker, sworn in only weeks ago. As an appointee of President Donald Trump, the now-standard US anxiety quickly arose that the matter would be considered with partisan bias.
Judge Walker has for the moment stilled the critics by issuing an early ruling rejecting the call for the vote counting to be stopped, and issuing an opinion that pours cold water on the claims submitted by Polonquin.
Polonquin’s submission was deeply flawed. He claimed that preferential voting represented ‘multiple’ voting, which is simply incorrect. The very purpose of preferential /ranked-choice voting is concerned with preserving for the greatest number of voters an effective single vote.
Alternative voting systems such as multi-member block voting (used in the early decades of US history, and known as ‘at-large’ voting) or cumulative voting might be termed ‘multiple’ votes, but the term has no relation to the act of casting a single vote using a rank order, which then directs how that one vote should be transferred from less successful candidates until it ultimately contributes to the final outcome between the two strongest candidates.
There were other arguments relating to alleged conflicts with US Constitutional rights, including the notion that the plaintiff’s right to equal protection of the law was breached if a plurality winner was not allowed to immediately prevail over the majority winner which might emerge from preferential counting of the votes, or that the preferencing system somehow discriminated against the Republican candidate specifically because of his partisan identity. The Judge poured cold water on each of the claims.
Judge Walker’s immediate task was to decide if the plaintiff’s claims were so likely to succeed that they justified the urgent step of stopping the vote counting from continuing, and also declaring Polonquin the immediate winner.
Apart from the obvious practical point that the counting of votes may as well continue to completion under the state’s electoral law, in his written opinion Judge Walker was clearly skeptical that the claims would ever be upheld, let alone that they were so likely to succeed that an injunction and declaration in Polonquin’s favour were justified:
“Plaintiffs have not demonstrated that it is more likely than not that they will succeed in demonstrating that the United States Constitution prohibits an election process that involves more than one round of ballot counting, or a process designed to ensure that everyone who votes has the opportunity to express their support and be counted with respect to the presumptive frontrunners in the election contest. In fact, it appears that both majority and plurality standards have historical antecedents in American politics.”
The basic issue is the allocation of legislative powers. The US Constitution deals with the issue thus:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators.”
The matter is therefore placed in the hands of the Maine legislature, which in this case is supplemented by the powers set out in the state constitution for the citizens of the state to create legislation by their own initiative. In fact, the Republican-majority legislature attempted to block the ranked choice voting law throughout 2017 and 2018, requiring two successive public votes to overrule the legislature and enact the election statute earlier this year.
Judge Walker still has to consider the case carefully on its merits, and judicial decisions at this level are frequently appealed up through the US courts. Moreover this is not likely to be the last time US courts consider this topic. Discussion about ranked choice voting is spreading across US communities rapidly in recent weeks, powered by arguments that it offers some solution to the polarisiation of US politics. It is near-certain that litigation will follow in multiple states it if RCV electoral law reform proposals are advanced.
The arguments – weak as they are – advanced by Polonquin are likely to reappear in other states.
(* ‘ranked choice’ voting is a relatively recent term adopted in the US for the method of voter-ordered vote transfers, known in Australia as preferential voting. It is also termed instant runoff voting in the US and Canada and the alternative vote in the UK. The approach can be used in single-member elections or in multi-member elections, the latter being the voting system known worldwide as the single transferable vote (STV) electoral system.)