Uncertainty over who won Maine’s 2nd Congressional District race will continue until Thursday, at least.

Maine Secretary of State Matt Dunlap announced Wednesday afternoon that staff in his office would finish scanning and processing voter ballots in the 2nd District race on Thursday morning and then run the ranked-choice tabulations to determine the winner. Meanwhile, a federal judge is expected to decide Thursday whether to halt the tabulations as he considers a lawsuit from Republican Rep. Bruce Poliquin challenging the constitutionality of ranked-choice voting.

Poliquin holds a narrow, roughly 2,000-vote lead over Democratic challenger Jared Golden in the four-way race. But Poliquin did not receive a clear majority of votes needed to win outright, thereby pushing the tabulation to voters’ second- – or perhaps third- – choice candidates until one of the front-runners crests the 50 percent threshold.

This is the first congressional race in the nation to be decided based on ranked-choice ballots.

Maine voters have approved ranked-choice voting twice at the ballot box, most recently in June when they also used the system for the first time in primary elections for governor, Congress and state legislative seats.

Poliquin and the other plaintiffs filed the federal lawsuit Tuesday, claiming the use of ranked-choice voting violates the U.S. Constitution, which “sets a plurality vote as the qualification for election” to Congress. However, the U.S. Constitution does not mention plurality or ranked-choice voting, and several constitutional scholars have said it’s unlikely the lawsuit will prevail.

After a two-hour hearing in Bangor on Wednesday morning, U.S. District Court Judge Lance Walker said he would move quickly on the request for a restraining order but his decision would not be issued before Thursday. That appeared to open the door for Dunlap’s office to complete a ranked-choice tabulation Wednesday afternoon before the court took action.

But Dunlap, a Democrat who oversees Maine’s elections, opted to wrap up at 5 p.m. rather than attempt to “jam it through later on tonight.” There were a dozen towns from Washington County – representing just over 1,600 ballots – still left to be processed.

“We do our best work when we are not rushing to get things done,” Dunlap said. “We do want to give the campaigns notice, we want to give the media notice at least a couple of hours. So if we are working until 6 or 7 o’clock, that is going to push us very late into the evening. And I don’t think that does the public very good service.”

ALL BALLOTS MUST BE UPLOADED, CERTIFIED

State workers began the day Wednesday with roughly 75 towns left to process. In the afternoon, the staff discovered that 10 ballots from a rural township in Washington County had not been sent to Augusta. A detective was dispatched from Ellsworth to Cherryfield – the town where the votes were cast – to retrieve the ballots and bring them to Augusta. The ballots arrived just after 4:30 p.m.

All ballots must be loaded into the computer system and certified by Dunlap’s office before the ranked-choice software can be used to determine a winner.

It was not clear Wednesday how quickly the process can be completed Thursday. It also was not known what time Walker plans to issue his decision in Bangor.

Lee Goodman, the attorney for Poliquin, said he hoped Dunlap would not move forward with the calculation of the ballots until the judge decides on the restraining order.

“I think the prudent course would be for the secretary of state to give due respect to this federal court and wait for the federal judge’s ruling tomorrow and then best decide how to act,” Goodman said.

Dunlap, however, made it clear Tuesday that the count would continue unless the court orders it to stop.

‘NOBODY GETS MORE BITES AT THE APPLE’

James Monteleone, an attorney for the Committee for Ranked Choice Voting who also represents independent candidate Tiffany Bond, said there was no urgency to stop Dunlap. Monteleone also said he believed Poliquin does not have a case, arguing that the U.S. Constitution largely leaves election law to the states. He said changing the rules after the election took place would be unfair to his client, who may not have run at all if she expected that votes for her would become spoiler votes.

“Voters who supported her and cast a ballot in her favor expected that if she were unsuccessful for whatever reason then their subsequent choices would be counted,” Monteleone said.

Walker said he needed time to evaluate the arguments. He several times asked attorneys for Poliquin and three voters who supported the incumbent Republican’s lawsuit why they were asking him to stop the ballot tabulation and declare Poliquin the winner if the ranked-choice voting law is so constitutionally flawed. Wouldn’t it be fairer, he asked, to hold a special election and order Dunlap to decide it by plurality? That would give supporters of the independent candidates a chance to reconsider their votes.

“The relief you are seeking is to deprive the voters who voted for the two independent candidates of their vote,” Walker said. “Now we are essentially telling them they are now the casualties of an unconstitutional system.”

Phyllis Gardiner, an assistant attorney general representing the Secretary of State’s Office, told Walker the results of the tabulation rounds would be preserved so there would be a record showing who won in either a plurality or ranked-choice scenario. However, she argued, stopping the tabulation now would further delay a final outcome, regardless of how the federal case turns out.

Gardiner also countered Goodman’s suggestion that voters whose first choice was one of the eliminated candidates were allowed extra votes because their second choices in subsequent rounds would be applied to the outcome.

“Nobody gets more bites at the apple,” she said. “That’s just a misconception. I see no harm to the voter in this system at all.”

OFFICIAL: HALTING PROCESS WOULD BE DISRUPTIVE

In an affidavit filed with the court, Deputy Secretary of State Julie Flynn, who is leading the ranked-choice ballot processing in Augusta, warned against halting that process now.

“Issuance of a court order to stop the RCV counting process before it is concluded, as the plaintiffs request, would be extremely disruptive and would jeopardize the integrity of the process,” Flynn wrote to the court.

Flynn said that the entire process – from securing and storing ballots, scanning/downloading them and comparing secretary of state results to records submitted by town clerks – is a carefully staged and sequenced operation.

“It will be extremely difficult to maintain quality control throughout this process if it is interrupted for a period of several days or weeks,” Flynn wrote. “We have mobilized staff from different divisions within the department to assist with the RCV counting process, and having to disperse and remobilize at a later time would be extremely inefficient. During this entire time, the secretary of state is also incurring the cost of having our vendor representative present to provide technical support and to assist with running the RCV utility at the end of the process.”

Poliquin is believed to be leading Golden by roughly 2,000 votes, based on unofficial election results. Some observers speculate that his lead could evaporate, however, as third- and fourth-place finishers Bond and William Hoar – both independents – are eliminated from contention and their supporters’ second- and third-choice votes are awarded to either Golden or Poliquin.

Poliquin on Tuesday said it’s not true he was challenging the process because he expects to lose his lead.

But the close finish in the election night count and an exit poll that indicated those who voted for the two last-place finishers were more likely to support Golden have given rise to speculation that the Democratic challenger could prevail in a ranked-choice vote.

Poliquin’s lawsuit sought an immediate injunction to permanently stop the count, but the court did not take steps to intervene until his lawyers filed an additional request late Tuesday for a temporary restraining order. If granted, the restraining order would halt the counting process only until the court can hear arguments on the constitutionality of the process. A hearing on the suit had been scheduled for early December.

The judge in the case, Walker, was first appointed as a Maine District Court judge by Gov. Paul LePage in 2014 and has been on a fast track since. He was elevated to the Maine Superior Court a year later and President Trump in April nominated him to serve on the federal bench. Walker was confirmed by the U.S. Senate in October.

Kevin Miller can be contacted at 791-6312 or at:

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Twitter: KevinMillerPPH

Scott Thistle can be contacted at 791-6330 or at:

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