Maine's Fitful Experiment With a New Way of Voting

In two months, Maine voters will go to the polls to select their nominees to succeed the state’s pugnacious two-term Republican governor, Paul LePage. Whether all of the candidates accept the results of those party primaries, however, remains a surprisingly open question.

The June 12 balloting will be the first statewide elections in the nation to use ranked-choice voting, a system Maine voters approved in a 2016 referendum designed to ensure that winners secure a majority—and not merely a plurality—of the vote. But a series of legal challenges and disputes in the state legislature over its implementation have clouded the upcoming primaries in uncertainty, and debate over the format has cleaved along partisan lines. Even as they campaign for support under ranked-choice voting, Republicans are calling for the state’s highest court to toss the new system at the last minute and order the June primaries to be held under traditional rules.

“It’s an absolute disaster,” Mary Mayhew, a Republican gubernatorial candidate and the state’s former health commissioner under LePage, said. “I think it is likely illegal, and it is incredibly confusing to those who administer the elections and to those who are getting ready to vote.”

Mayhew is seen as a leading contender among the four Republicans running, but when I asked her if she’d challenge the results if she lost because of ranked-choice voting, she wouldn’t rule it out. “I will certainly evaluate my options based on the results,” Mayhew told me. “I couldn’t possibly decide at this point what my decision will be.

“I have serious concerns about how this is going to be implemented, and I believe it is fraught with the vulnerability for error,” she continued. “That in and of itself may call into question the results.”

Mayhew is facing businessman Shawn Moody and two top Republicans in the state legislature—House Minority Leader Ken Fredette and Senate Majority Leader Garrett Mason, who leads a caucus that voted to appeal a judge’s ruling last week ordering the state to implement ranked-choice voting. All four Republicans have criticized the format, as has the state party.

“The system itself is more expensive, it’s going to suppress votes, and we think it’s just a bad idea,” Jason Savage, executive director of the Maine Republican Party, said. “We’re concerned about a constitutional crisis of months of court challenges to results that end up with us not knowing who our candidates are.”  

Ranked-choice voting, which cities like San Francisco, Minneapolis, and Portland, Maine, use to elect their mayors, has been likened to an “instant runoff”: Instead of selecting just one candidate, voters rank their choices in order of preference. If no candidate receives a majority of first-place votes, the candidate with the fewest votes is eliminated, and whoever their voters chose as their second choice is added to the tally of the remaining contenders. That process continues until there are only two candidates left, and the one with the most votes wins.

The idea had been bandied about for years in Maine, a state where the frequent viability of independent candidates has led to gubernatorial campaigns in which the winner had received less than a majority mandate in eight of the last 10 elections. It gained momentum after LePage won his first election in 2010 with just 37.6 percent of the vote; advocates for ranked-choice voting argue that independent candidate Eliot Cutler would have prevailed had the system been in use then.

Proponents held up ranked-choice voting as a remedy for the increasing vitriol of elections in Maine, which for a long time had viewed itself as removed from the partisan rancor that dominated national politics. “The quality of our campaigns has deteriorated,” John Brautigam, legal counsel and senior policy adviser for the League of Women Voters of Maine, said, “and maybe ranked-choice voting holds a way to restore some of that special quality to our democracy here in Maine, to preserve decent relationships among candidates and minimize the negativity, and encourage broader outreach by campaigns to all possible voters.”

“People have been focused on LePage, because he’s been the most visible example of it,” Brautigam said, referring to a governor whose impolitic pronouncements and battles with the state legislature have made national headlines for years. But, he said, the problem went beyond merely the Republican in power.

To supporters of ranked-choice voting, the benefits are manifold. The system diminishes the “spoiler effect,” so voters can go with a preferred lower-tier candidate as their first choice without feeling that doing so will help elect the contender they like the least. It also encourages candidates to pay attention to voters who might not make them their first choice. “They have to talk to everybody, and that’s really good for democracy,” Brautigam said. And, advocates say, the system could reduce the incentive for negative campaigning on the assumption that a candidate won’t want to offend supporters of a rival who could make them their second choice.

With backing from the League of Women Voters of Maine and an advocacy group called the Committee for Ranked-Choice Voting, a ballot measure enacting ranked-choice voting for gubernatorial, congressional, and state legislative races passed with a narrow 52 percent of the vote in 2016. The referendum called for the system to be in place for the 2018 elections, but questions about its implementation and legality quickly emerged.

Last May, in response to an inquiry from the Republican-controlled state Senate, Maine’s Supreme Judicial Court issued a unanimous advisory opinion that ranked-choice voting violated the state constitution, which calls for state elections to be determined by “a plurality” of voters, not a majority. The ruling was non-binding, but it prompted calls either for the legislature to overturn the ballot measure or to pass a constitutional amendment that would clarify its legality. What the legislature did was pass a law in the fall delaying the implementation of ranked-choice voting until 2022.

But that move sparked an outcry from supporters of the initiative, who accused lawmakers of thwarting the will of Maine voters. Using a process known as the “People’s Veto,” they amassed enough petitions to nullify the law delaying ranked-choice voting and setting up another statewide referendum on the topic. That means that come June 12, Maine voters will simultaneously be using ranked-choice voting for the first time while also deciding whether to use the system again before 2022.

Because of all the confusion, advocates and political operatives say campaigns have been slower to incorporate ranked-choice voting into their election strategies—if they’ve done so at all. The League of Women Voters of Maine held a training session a few weeks ago, where they advised candidates on tactics to succeed in the new system. The simplest piece of advice is just to be humble enough to ask voters supporting another candidate to consider making you their second choice.

While campaigns from both parties sent representatives to the training session, so far the Democratic candidates that support ranked-choice voting seem to be making the most use of the advice.

“When we ask [people] for their vote, we also ask for their second-choice vote if we don’t get their first choice,” said Michael Ambler, campaign manager for Janet Mills, a leading Democratic contender and the state’s attorney general. “But it’s not changing the positions or anything like that that we’re taking.”

Still, Ambler told me the system was too untested in Maine for there to be an established wisdom on how to use it most effectively. “I don’t think people have built up a lot of expertise with this, so I think people are mostly running the way they would in a different election,” he said.

As attorney general, Mills had raised questions about the constitutionality of ranked-choice voting—a position that has drawn criticism from her rivals. But Ambler said she supports its use in the primaries and vowed not to contest the results if she lost under the new format. “We are absolutely committed to accepting the results,” he told me.

If Mills and the other Democrats are incorporating the new system into their campaigns, Mayhew is ignoring it entirely. When I inquired whether she was asking voters to make her their second choice if they were supporting someone else, she scoffed. “Just think about that statement? Can you imagine asking someone that?” Mayhew replied. “No, I’m campaigning to be their No. 1 choice.”

She argued that ranked-choice voting could disenfranchise voters who pick lower-tier candidates but choose not to select a second choice, and she said it was a poor alternative to the more common use of run-off elections to ensure winners secure majority support. “You want to have a run off? Then have a runoff,” Mayhew said. “But as a voter, you’re going in to pick the person you most want to win.”

The state’s Republican Party, which has expressed its opposition to ranked-choice voting in the primary, isn’t dissuading candidates from challenging the election results in court. “It’s their prerogative,” Savage told me.

In addition to the constitutional dispute, there are questions about how Maine will pay for the new system and how the ballots will be counted. The referendum calls for counting to be done at a centralized location, but state law requires ballots to be counted locally.

While the rules for other elections are unclear, the general election for governor this fall will not use ranked-choice voting. And Savage made clear that the GOP’s opposition was not due to any perceived electoral disadvantage. “We don’t think there’s a partisan advantage either way,” he said. “This is not a fight about political advantage. It’s a fight about respecting Maine’s constitution.”

Advocates for expanding ranked-choice voting nationwide are watching the Maine process closely, hoping that a successful experience will generate momentum to institute it in other states, like Massachusetts, or major cities like New York or Los Angeles. “There will be aspects of Maine that will be uniquely challenging,” Rob Richie, executive director of FairVote, which supports changes to elections like ranked-choice voting and a national popular vote for president, said. Whereas many cities that use ranked-choice voting can tabulate the results on election night, Maine’s rules mean the state will take at least a few days to count all the ballots.

The bigger challenge for advocates of ranked-choice voting, however, has been ensuring that candidates and voters alike understand the rules going in. When Oakland first used the system in 2010, it produced an upset victory by Jean Quan, over a deep-funded frontrunner, Don Perata, who would have won under traditional rules and whose campaign blamed the format for his defeat. “It’s not just passing the thing and having it work,” Richie said. “It has to pass and work well, which it generally does. But people have to understand it as it’s happening. You can’t take that for granted.”

That’s cause for concern in Maine, where the legal challenges to ranked-choice voting have created uncertainty about just what rules will govern the June primary. The Supreme Judicial Court could still strike down the system in the next few weeks, forcing state election officials to scramble to put together a new ballot. But for the moment, ranked-choice voting will go forward—whether its Republican critics like it or not. “It’s going to be fascinating to see, because now they have to live it,” Richie said. “Now they have to win with it.”