A federal judge on Tuesday turned down a request for a preliminary injunction barring the use of ranked-choice voting in the Maine Republican Party’s June 12 primaries, including the contest to become the party’s gubernatorial candidate.

The party filed suit after its state convention in early May, saying delegates unanimously wanted to continue to use a plurality vote in the primary, meaning that the candidate who gets the most votes in the initial round of balloting would win. But the Maine secretary of state had decided that ranked-choice voting, adopted by referendum in 2016, would be used in this year’s primary balloting.

In his ruling, U.S. District Judge Jon Levy dismissed the party’s main argument – that ranked-choice voting might result in a different candidate being selected than if the nominee were chosen in a plurality vote. The party had argued that ranked-choice voting therefore violated its First Amendment rights of freedom to associate.

“The Maine Republican Party is disappointed in the outcome of its motion for a preliminary injunction,” said Joshua Dunlap, the lawyer for the party. “The ruling is contrary to Supreme Court precedent making it clear that the state cannot freely regulate the party’s process for selecting its nominees.”

Under the ranked-choice system, voters select candidates in order of preference. If no candidate receives more than 50 percent of the vote, the candidate with the fewest first-choice votes is eliminated. Voters who preferred the eliminated candidate would then have their ballots added to the totals of their second-ranked candidates, and the ballots would be retabulated. The process continues until one candidate has a clear majority of votes.

Next month’s primaries will be the first time that ranked-choice voting will be used in the United States to decide a statewide race.

The June 12 ballot has only two Republican races with more than three candidates, triggering the ranked-choice voting system – one for a state House seat and the other for governor. Ranked-choice voting will not be used in state legislative races or in the general election for governor this fall because of a provision in the Maine Constitution calling for those races to be decided by a plurality vote.

In his decision, Levy said the party failed to show that ranked-choice voting violated the Republican Party’s First Amendment rights. That means he decided that the party was unlikely to win on the merits of its case – the key part of a four-part test for determining whether a preliminary injunction should be granted. With that decided, Levy said, the rest of the party’s arguments “are not persuasive,” so he turned down the request for the injunction.

Dunlap, however, disagreed with Levy’s interpretation of the First Amendment issue.

“Selecting nominees is the most important political activity of the party, and the party’s members have a First Amendment right to determine how that process works,” he said.

The judge also noted that the party gives up some of its ability to completely control the election process when the state pays for and conducts the election, as it will in next month’s primary.

“When a party avails itself of a state-administered election, it compromises some of its self-governance in exchange for access to the state apparatus,” Levy said.

He also found that the limits imposed by ranked-choice voting aren’t particularly burdensome and, quoting another decision, “a state’s important regulatory interests will usually be enough to justify reasonable, non-discriminatory restrictions.”

The Republican Party could appeal the ruling to the 1st Circuit Court of Appeals in Boston, but that would require the court to hear an emergency appeal, given that the primary is two weeks away.

“Because the court’s order fails to protect the party’s constitutional rights, the party is currently considering its options on appeal,” Dunlap said.

Calls to Jason Savage, the executive director of the Maine Republican Party, and to Phyllis Gardiner, the assistant state attorney general who argued the case for the Maine secretary of state, were not returned Tuesday.

James G. Monteleone, a lawyer for the Committee for Ranked Choice Voting, was pleased that the law passed another hurdle. “(Levy) got it exactly right,” he said.

“The state is well within its rights” to impose reasonable rules for the conduct of elections, including ranked-choice voting, Monteleone said.

Also on the June ballot is a measure that would repeal limits on the use of ranked-choice voting until that law’s conflicts with the state constitution are cleared away, Monteleone said. If that measure passes in two weeks, he said, it will clear the way for ranked-choice voting to be used for federal races – U.S. Senate and U.S. House – in November.

Edward D. Murphy can be contacted at 791-6465 or at:

[email protected]

Send questions/comments to the editors.

filed under: