AUGUSTA — Republican Rep. Bruce Poliquin filed a federal lawsuit Tuesday seeking to stop the tabulation of ranked-choice ballots in his 2nd Congressional District race against Democratic challenger Jared Golden.

Poliquin and three other plaintiffs are asking a federal judge in Bangor to block Maine Secretary of State Matt Dunlap from proceeding with the nation’s first ranked-choice voting run-off in a congressional race. Neither Poliquin nor Golden secured a majority of the vote in the first count of ballots in the Nov. 6 election, thereby pushing the tabulation to voters’ second-choice candidates – or perhaps third-choice – until one of the front-runners crests the 50 percent threshold.

U.S. District Judge Lance Walker scheduled a hearing for 9 a.m. Wednesday on a request from Poliquin’s attorneys for a temporary restraining order that would force Dunlap to stop the process until the case is settled. Walker had scheduled an initial hearing in the case for Dec. 9, but the retabulation of votes could happen as soon as Wednesday unless the court intervenes.

Dunlap, a Democrat, said ballot processing will continue until he hears otherwise from the court. “If a judge tells us to stop, we’ll stop. … I think we have to obey the law, and the law says that we proceed,” Dunlap said Tuesday afternoon.

Voters have approved ranked-choice voting twice at the ballot box, making Maine the first state to use the process in statewide primary and federal elections.

Poliquin’s lawsuit claims the use of ranked-choice voting violates the U.S. Constitution because the document “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 said Tuesday that the lawsuit is not likely to prevent the state from moving forward with the run-off.

At a State House news conference Tuesday afternoon, Poliquin said he and other critics of ranked-choice voting believe the process could be “illegal” under federal law. He said it’s not true that he is challenging the process because he is likely to lose his seat if more than 23,000 votes received by two independent candidates get redistributed to second-choice candidates.

“The people of the 2nd District have put their trust in me to do what’s right,” Poliquin said. “Not addressing this important constitutional issue would be completely irresponsible. I’ll tell you this would be a heck of a lot easier on me if I just walked away from this vote counting mess. But what kind of message would that send to our kids? Absolutely the wrong message.”

Maine has a long history of plurality winners in our elections, of all parties #mepolitics; pic.twitter.com/capKtUWDJ0 ;

— Bruce Poliquin (@BrucePoliquin) November 13, 2018

Poliquin repeatedly declared himself the winner on election night, “fair and square” – an argument central to the lawsuit.

“Instead of respecting this important constitutional principle, the RCV Act directly contravenes it by denying individuals who obtained the highest number of votes after the first round of balloting – in this case, Bruce Poliquin – from being declared the winner of the general election,” the complaint says. Poliquin is joined in the lawsuit by three registered voters from the 2nd District, including Veazie attorney and Penobscot County Republican Committee chairman Brett Baber.

GOLDEN’S REPLY: VOTES HAVE BEEN CAST

State elections workers continued to process ballots throughout the day Tuesday, despite a request from the plaintiffs to suspend the process while the court case plays out.

As of Tuesday evening, the staff in Dunlap’s office still had to scan ballots from roughly 75 small towns in Somerset, Waldo and Washington counties before running all voting results through the computer algorithm used to calculate ranked-choice results. That tabulation could come as early as Wednesday afternoon.

Dunlap said the vote retabulation process will continue as the court goes through the litigation process. “We are implementing the law as has been enacted by the people of the state of Maine,” he said.

In their reply to the lawsuit, Golden’s attorneys said Poliquin’s litigation “seeks to invalidate the will of the voters” by blocking Dunlap from following state law.

“Poliquin could have joined his (Republican) Party’s challenge to this law before this court last spring, or he could have moved expeditiously to file his own challenge on the same grounds he now raises when his party’s challenge was not successful,” Golden’s attorneys wrote in their legal filing with the court. “Instead, he waited until after all of the ballots in the election had been cast, and now seeks to change the rules of that election, severely prejudicing the voters who relied upon RCV in casting their ballots, and the candidates who they supported, whether as their first or second choices.”

DEMOCRATIC CHALLENGER COULD PREVAIL

Republicans have long criticized the ranked-choice law approved by voters as unconstitutional and successfully blocked the process from being used in general elections for statewide offices such as governor and the Legislature. But while the Maine Constitution says those races are decided by a “plurality” of votes, it doesn’t specify how federal elections should be conducted.

Poliquin is leading Golden by roughly 2,000 votes, according to unofficial election results.

The two-term Republican congressman and Golden – a Marine Corps veteran and state lawmaker – each have roughly 46 percent of the vote. But because neither received more than 50 percent, votes cast for independents Tiffany Bond and William Hoar – who received 8 percent combined – will be reallocated based on whom those voters ranked second on their ballots.

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.

Ranked-choice voting is different from other run-off elections. Under ranked-choice, voters only cast ballots once and those ballots are then used to reallocate votes based on voter preferences if no candidate receives majority support after the first count.

But before those tabulations can be run, every ballot – or digital images of them – must be transported to the Secretary of State’s Office in Augusta. Staffers must then download the massive digital files from encrypted memory devices or scan the paper ballots from the hundreds of towns that still hand-count ballots.

Poliquin’s campaign has raised concerns about ballot boxes sent to Augusta without padlocks, while the Maine Republican Party asked Dunlap to reassign a staffer involved in the ranked-choice processing because he had “liked” tweets supporting Golden. Dunlap responded that all ballot boxes – even those without padlocks – have arrived with a metallic seal that would alert staff to any tampering after the ballots left the polling location.

He accused Republicans of attempting to undermine voter confidence in the election system.

“I think it’s intended to be a distraction, it’s intended to cast doubt on this process,” Dunlap said on Monday. “And I think it’s irresponsible and a disservice to the people of Maine.”

‘A FRIVOLOUS EFFORT TO CAST DOUBT’

Besides Poliquin and Baber, the lawsuit was filed on behalf of two other 2nd District residents, Terry Hamm-Morris and Mary Hartt. None of the four plaintiffs ranked their votes during the Nov. 6 election, their complaint states.

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.

Ranked-choice advocates called the lawsuit baseless.

“This is a frivolous effort to cast doubt on the lawful and constitutional use of ranked-choice voting in Maine,” said James Monteleone, an attorney for the Committee for Ranked Choice Voting who also represents Bond, one of the two independent candidates in the race. “Just looking at the basis of the claims here they are fairly silly. And if anyone thought these were viable legal questions that required urgent attention they had many months to present these questions to the court.”

Monteleone also said voters who selected Bond or Hoar as their first choices believing the independents would not become “spoilers” because of the ranked-choice law would be disenfranchised if Poliquin’s case were to prevail. “They purposefully selected their choice knowing that ranked-choice voting applied and that they would have an opportunity in subsequent rounds if their preferred candidate was unsuccessful,” Monteleone said. “What Poliquin is essentially asking for is to have those voters to just be set aside.”

PREVIOUS COURT RULINGS

The Maine Center for Clean Elections and the League of Women Voters of Maine backed the ranked-choice voting law in 2016 and 2017 and called for the process to move forward.

“Ranked-choice voting has been reviewed by Maine courts four times in the last two years; we have no doubt that the federal court will uphold the law. Ranked-choice voting is here to stay as the voters have twice demanded, and we will fight to protect it,” Jill Ward, the president of the League of Women Voters, said in a prepared statement.

Ward cited different times Maine courts have issued rulings on the law including:

• In May 2017, the Maine Supreme Judicial Court issued a unanimous advisory opinion, concluding that parts of the new law that apply to general elections for the Legislature and governor are unconstitutional under the Maine Constitution but noted the state’s constitution did not govern primary or federal elections.

• In April 2018, a Kennebec County Superior Court justice granted the Committee for Ranked-choice Voting a temporary restraining order, requiring the Secretary of State’s Office to continue implementing ranked-choice voting for the June 2018 primary election.

• In April 2018, in response to a request by the Maine State Senate seeking a declaratory judgment and injunctive relief, the Maine Law Court confirmed that ranked-choice voting would be used for the June 2018 primary election.

• In May 2018, a federal judge denied the Maine Republican Party’s request to throw out the ranked-choice voting system for the Republican June 12 primaries.

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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