AUGUSTA — Maine’s highest court concluded Tuesday that the nation’s first statewide ranked-choice voting system violates the Maine Constitution even though it was approved by the state’s voters in a referendum in November.

In a unanimous advisory opinion, the seven justices on the Maine Supreme Judicial Court acknowledged the validity of citizen-initiative ballot questions but noted that even citizen-enacted laws can be unconstitutional.

“The object must always be to ‘ascertain the will of the people,'” the court wrote. “Nonetheless, when a statute – including one enacted by citizen initiative – conflicts with a constitutional provision, the constitution prevails.”

The court opinion itself doesn’t negate ranked-choice voting, which was supported by 52 percent of Mainers who cast ballots last fall. The justices instead spelled out the Legislature’s options, noting that lawmakers can now vote to repeal the measure or to initiate the process that leads to a constitutional amendment to allow for ranked-choice voting.

One Democratic lawmaker, Sen. Cathy Breen of Falmouth, said she would submit a bill to amend the Constitution.

“I’m grateful to the court for so clearly laying out the path we must take if we want ranked-choice voting to become law, as voters intended,” Breen said. “Voters in Maine approved ranked-choice voting because they’re tired of politics as usual. They want a better way forward, one that’s less partisan and more inclusive.”

However, the deadline for introducing legislation has passed, so Breen will need approval from the Legislative Council, which is composed of legislative leaders from both parties. Republicans are generally opposed to the ranked-choice system, and they are likely to withhold approval for Breen to submit a bill.

The council will meet Wednesday to decide what action should be taken by the Legislature, which is set to adjourn in mid-June.

A bill like Breen’s that proposes a constitutional amendment would approval by a two-thirds vote in the Legislature. It would then go to voters, who could approve it by a simple majority.

“We will weigh it, we will look at it, but obviously you’ve heard the same things I’ve heard – that there isn’t a lot of support for that concept,” Senate President Mike Thibodeau, R-Winterport, said Tuesday of the constitutional amendment proposal.

REPEAL OF LAW MORE LIKELY

A more likely outcome is that lawmakers will vote to repeal the ranked-choice measure and send the repeal to Gov. Paul LePage for his signature. LePage does not support ranked-choice voting.

“The governor has said all along that ranked-choice voting is unconstitutional,” said LePage spokesman Peter Steele. “The constitution of the state of Maine is not ambiguous; it clearly states candidates win with a plurality.”

The ranked-choice system fundamentally changes the way voters would select legislators, the governor and Maine’s four congressional delegates. Voters would rank candidates in order of preference. If no candidate had more than 50 percent of votes, the candidate with the fewest votes would be eliminated. Voters who chose the eliminated candidate would have their ballots added to the totals of their second-ranked candidate, and the ballots would be retabulated. The process would continue until one candidate had a clear majority and was declared the winner.

But Maine’s Constitution calls for candidates to be selected by plurality, in which the candidate with the most votes wins, even if the vote total is less than a majority.

“The Act (the ranked-choice system), in contrast, would not declare the plurality candidate the winner of the election, but would require continued tabulation until a majority is achieved or all votes are exhausted,” the court wrote. “Accordingly, the Act is not simply another method of carrying out the constitution’s requirement of a plurality. In essence, the Act is inapplicable if there are only two candidates, and it is in direct conflict with the constitution if there are more than two candidates.”

Maine has a long history of three or more candidates in its gubernatorial elections, with the winner frequently receiving less than 50 percent of the total statewide vote. The last first-time candidate for governor to win more than 50 percent of the vote was Democrat Ken Curtis, who had 53 percent in 1966.

The court said there was a degree of urgency to their decision.

“Both campaigning and voting will be substantially affected by the nature of the voting process,” the justices wrote. “The time to plan and organize a fair and impartial election is at hand and the doubt surrounding the constitutionality of the Ranked-Choice Voting Act casts uncertainty on all aspects of voting preparation.”

Kyle Bailey, spokesman for the Committee on Ranked Choice Voting, which supported the measure, said the court’s opinion indicated to him that the Legislature needs to pursue a constitutional amendment. Bailey said more than 400,000 Maine voters supported the change and expected to see ranked-choice voting in place for 2018.

“Our legislators were elected last November on the same ballot as ranked-choice voting,” Bailey said. “They have a duty and a privilege, a responsibility to carry out the will of the people.”

CRITICISM OF INITIATIVE PROCESS

Others had a different perspective on the court’s opinion.

House Minority Leader Ken Fredette, R-Newport, used the opinion to voice his frustration with the citizen initiative process, which he said was “spinning out of control.”

Assistant Minority Leader Rep. Ellie Espling, R-New Gloucester, said the decision “reinforces the problems that arise when we send unvetted legislation out to referendum.”

Dick Woodbury, a former independent state senator from Yarmouth, said the court’s opinion did not apply to primary elections or to federal congressional elections, and without any action from the Legislature the law would stand in those elections. He said the Secretary of State’s Office should immediately implement ranked-choice voting for federal elections.

But Thibodeau, the Senate president, said he and other lawmakers do not want Maine to have two election systems.

“We can’t have folks going to the polls and voting in one regard for state offices and in another regard for federal offices,” Thibodeau said. “That would be too confusing to many of the voters and that would not be fair to do to them. So we want to make sure we have consistent voting laws across the spectrum.”

Correction: This story was updated at 11:45 a.m. on May 24 to correct an inaccurate description of Dick Woodbury’s career. He is a former state senator and is no longer serving in the Legislature.

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

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