This quarter’s Maine Bar Journal has an article by an attorney, Jeff Goldman, of counsel at Morgan, Lewis in Boston. It’s called The Law Court’s Troubling Opinion of the Justices, and criticizes the Maine Supreme Judicial Court’s unanimous advisory opinion on the Ranked Choice Voting (“RCV”) statute. Contrary to the title and vocabulary of the article, when the Court issues an advisory opinion, it does so as individual SJC members, not sitting as the “Law Court,” as the signatures at the end of the opinion make clear. I’ll be using that nomenclature here.

The SJC’s opinion criticized by Mr. Goldman is at http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2017/17me100.pdf. The Court’s web site page with links to the audio of the oral argument and the many briefs, including the one filed by us on behalf of the Maine House Republican Caucus and Maine Heritage Policy Center, explaining why, as the Justices all concluded, the RCV is unconstitutional, is located at http://www.courts.maine.gov/maine_courts/supreme/senate_question_2017/index.html. I blogged on the SJC’s opinion when it came out, RCV OK, as well as earlier, Ranked voting, Joshua Chamberlain, and excellent legislative history.

Mr. Goldman’s complaints appear to be three-fold. He argues that: (1) the reasoning in the opinion as to why there was a solemn occasion deviates from precedent; (2) the discussion of the merits fails “seriously to engage the arguments with which it was presented”; and (3) the SJC did not sufficiently recognize the flexibility in interpreting a constitution.

Since I called the SJC’s opinion decision thoughtful and comprehensive when it came out (see blog entry link above), and since the Court can’t defend itself, let’s examine each of these criticisms.

  1. Solemn occasion

As I stated previously, we would all have been in a big Constitutional pickle if the SJC hadn’t determined there was a solemn occasion. Under the Maine Constitution, after an election, the House and Senate decide who sits in their chambers, not the Court. Here, there was an Attorney General opinion saying the statute was unconstitutional. If after an election took place, the House/Senate appeared to base their decisions as to whom to sit based not on the legal analysis of the lawyer for the State, the AG, but rather on politics and party, we could have arrived at the same situation as occurred in the 19th Century, “the gravest constitutional crisis” in Maine history, with Joshua Chamberlain having to quell riots in the Capitol. (See my first blog and our brief, spelling this history out in more detail.) To me, that’s a pretty good reason for the SJC to weigh in before any RCV election was held.

If you read the Court’s opinion, its explanation is clear as to why it decided to answer the question posed by the Senate before an RCV election took place. It notes some other aspects of the hot mess absent knowing the constitutionality of RCV before an RCV election is held. Campaigning and voting are substantially affected by the nature of the voting process. If you think you are voting in an RCV context and vote one way, while you wouldn’t have voted the same way if it was straight up and down vote, then what happens if RCV process is struck down after the election? Is there a whole do-over? Or do we have the Legislature picking and choosing, as I noted the Constitution seems to say? In its opinion, the SJC notes the need for orderly elections to sustain the democratic process.

The Court acknowledges that to have a solemn occasion, typically there’s doubt about the questioning body’s authority and the status of the law in question. The Senate in posing the question about the RCV’s constitutionality to the members of the SJC wasn’t questioning its own authority to act regarding a statute. That’s the part that I believe made Mr. Goldman feel precedent wasn’t being followed. In 1996, the SJC declined to answer a question from the House because an initiated bill was no longer in front of the House to decide whether to adopt it itself, and so the proposed law was on its way to get voted on by the public, with the House done with its role. Opinion of the Justices, 674 A.2d 501 (Me. 1996). Here, the RCV statute, also a product of the initiative process, had been enacted by the electorate (by a 52.12% vote). So, at that stage, as in 1996, the Legislature had no more role in deciding what to do with the bill as proposed before it went to the electorate. As the Court explained, however, here the Legislature was trying to decide whether to propose a constitutional amendment, whether to spend $1.5 million to implement the RCV statute’s voting process, and, not unreasonably, wanted to avoid the inevitable big hot mess after an election if that election hadn’t been constitutionally held. In this unique situation, with the constitutionality question going to the heart of voting itself, the democratic process and a fundamental right, and with the historical context, including those pesky riots the last time this particular issue came up, the Court said that was good enough to warrant answering the Senate’s question before an RCV election was held.

This explanation seems understandable and makes sense to me. With Joshua Chamberlain no longer around to save the day, no one wants a Third Round Top.

2. The merits

This section of the opinion is short. That is apparently what peeved Mr. Goldman. (“The court’s ‘Analysis’ section, regarding the constitutionality of ranked-choice voting is limited to seven substantive paragraphs.”)

This section is short because once you get to the merits, the SJC’s reasoning is simple: (1) plurality means plurality, not majority; & (2) the historical context reinforces that the relevant Constitutional provision was enacted to avoid having to go beyond a plurality.

Mr. Goldman argues that the SJC should have explained why “plurality” has to mean “first” plurality. RCV is designed to get to a majority. This isn’t just me saying this, but RCV proponents during the campaign. The question on the ballot was “Do you want to allow voters to rank their choices of candidates … and to have ballots counted at the state level in multiple rounds … until a candidate wins by majority?” You vote. X gets 35% of the vote, Y, 34%, and Z 31%, With plurality voting, X wins and we all go home. With RCV, you say nope, let’s keep going, and if enough of those people voting for Z decide they like Y better than X as their second choice, Y wins. If you sit Y as the winner, you aren’t sitting the candidate who won the plurality. RCV can change who wins from the plurality winner. It’s not plurality voting. The “first” plurality is the plurality. Having additional rounds, trying to get a majority and potentially changing the outcome of who wins, is not plurality voting.

It really is that simple. I explained this in just one paragraph, not seven.

Reinforcing this point, the Court discussed the historical context of the enactment of the Constitutional provisions requiring only a plurality and eliminating a majority requirement. Put simply, there used to be a runoff system in Maine and it was changed. For example, in Me. Const. art 4, pt. 1 s. 5 (1820), in electing the House, if no candidate secured a majority, new rounds of voting would be held until there was a majority – the 1820 equivalent of RCV. The Constitutional amendments were enacted to change that approach. Usually, there’s no legislative history to assist in construing Maine law, but here the history was clear regarding the drafters’ intent to change from majority voting so the first past the plurality post won.

Mr. Goldman complains that the SJC did not shoot down each specific argument in the briefs supporting RCV. But if you can follow the reasoning that the SJC did adopt, isn’t that what a judicial opinion is supposed to do?

3. The Constitution

The thrust of this argument appears to be that there should be more wiggle room in construing language in the Constitution than in a statute, so we can be a little more free and easy in defining plurality, because the Constitution needs to get with the times. Mr. Goldman writes that even if, as the SJC states, the language of the Constitution today is clear, “the constitutional questions remain unaddressed,” apparently meaning he would have liked the SJC to provide a discourse on whether its members are originalists or not. He writes: “What is the Court’s framework here: Are we limiting ourselves to the language alone; determining original intent; trying to be consistent with the spirit of 1880; or employing another methodology of constitutional adjudication?”

As for me, I don’t think it’s necessary for the SJC to explain in their opinions whether they are fans of Justice Scalia’s originalism views, particularly in this case, because there’s a difference between reading language in a modern context, where jurists with different philosophies might differ, and ignoring the language of the Constitution altogether, which is justified under no credible philosophy. The SJC was clear: (1) the term plurality is unambiguous; and (2) this conclusion is reinforced by the historical context in which the Constitution was amended. Whether you look at text alone or in context, the result is the same. It’s true that there are modern mechanisms so that the multiple rounds that used to have to be had to elect the House before the “plurality” amendments can go more quickly, in one lump – but that doesn’t change the meaning of the word “plurality” and the intent behind the amendment

Finally, Mr. Goldman appears to think that the opinion leaves open the question whether the Constitution prohibits RCV or “merely allow[s] for the election of candidates that have not received an absolute majority on the first ballot.” Here’s the question asked by the Senate:

“Does the method of ranked-choice voting established by the Act in elections for Representative, Senator and Governor violate the provisions of the Constitution of Maine, Article IV, Part First, Section 5, Article IV, Part Second, Sections 3 and 4 and Article V, Part First, Section 3, respectively, which declare that the person elected shall be the candidate who receives a plurality of all the votes counted and declared by city and town officials as recorded on lists returned to the Secretary of State?”

Here’s the SJC’s answer:

“Yes, the Ranked-Choice Voting Act conflicts with the Maine Constitution.”

Pretty clear to me.

In sum, whether you think RCV is a good or bad idea is not the point. There’s a lot to be said, policy-wise, for the goals of RCV. But the point here is we have a Constitution. If something is in the Constitution, and you want to get rid of it, you have to amend the Constitution. We are very fortunate in Maine to have nonpartisan Justices, and they all said this statute is unconstitutional. This is not one of those situations where one swing vote (Justice Kennedy, anyone?) changes significant constitutional law because of textual mushiness. On this particular question, the Maine Constitution is clear as every Justice so opined – in an opinion that I still think is comprehensive and thoughtful.