As the vote tallies for the November 2018 federal elections become finalized, one seat in the House of Representatives may not be resolved for several weeks because of an unusual lawsuit filed by Republican incumbent Bruce Poliquin (along with three Republican voters) in Maine. The lawsuit does not involve provisional ballots, signature matches or counting delays—logistical aspects of modern elections that are increasingly subject to legal dispute—but instead attacks the basic substantive rules that Maine law uses to determine who wins Congressional elections.

The crux of the legal challenge is the permissibility of Maine’s Ranked-Choice Voting system, which the state’s voters adopted via a citizen initiative in 2016 and reaffirmed as to federal elections in a 2018 citizen referendum. As the Maine law explains, under a Ranked-Choice voting regime (a version of which has been used in some local jurisdictions, such as San Francisco County, for years), “the method of casting and tabulating votes [is one] in which voters rank candidates in order of preference, [and then] tabulation proceeds in sequential rounds in which last-place candidates are defeated and the candidate with the most votes in the final round is elected.”

In other words, when a voter casts her ballot, she is encouraged not merely to identify her first choice, but also to rank order the remaining candidates. For example, if four candidates are running, a voter could vote for one as her first choice and then proceed to identify other candidates as her second, third, and fourth choices respectively. If our voter is indifferent between her low-ranking choices, she might simply rank her top one or two and stop there. In essence, Ranked-Choice voting operates as an instant series of runoff elections (and is sometimes called an Instant- Runoff system) between the candidates when no candidate receives a majority of first-place votes.

A simple illustration shows the difference between a Ranked-Choice Voting system and the less-finely-grained, plurality-based, single-election systems—in which the person who receives the highest number of votes at the first tabulation becomes the winner, even if that number is less than 50% of the votes cast—that currently dominate American elections. Suppose that four candidates are running in an election in which 100 persons vote. Candidate A receives 34 first-place votes, followed by B with 30 votes, C with 29 votes, and D far behind with 7 votes.

If we simply picked the top vote-getter at this point (as most elections do), A would be the winner. But suppose voters were allowed to list their second choices, and all 7 who voted for D ranked C as their second choice. In such a Ranked-Choice system, because D got the lowest number of first-place votes, he drops out, and his 7 votes are reassigned to the person ranked second on these 7 marked ballots — in our hypothetical, candidate C.

Now C is the top vote-getter, with 36 votes, compared to only 34 for A and 30 for Candidate B. And suppose most of Candidate B’s voters also prefer Candidate C to Candidate A. Under Ranked-Choice Voting, Candidate B (now the person with the fewest votes) would be eliminated, and her 30 votes would be reallocated among the remaining candidates. Imagine that, as between Candidates A and C, Candidate B’s voters prefer Candidate C by a margin of 16 to 14. In that case, Candidate C would now have 52 votes (36 plus 16), and Candidate A would have 48 (34 plus 14). And Candidate C would thus be declared the winner. This result comes about even though Candidate A had more first-place votes, because Candidate A turned out to be pretty unpopular, relatively speaking, among voters as a whole.

Possible Use of Ranked Choice Voting in Presidential Elections

In past writings I have discussed the possible use of Ranked-Choice Voting in presidential elections. Take the 2000 Presidential election. Ralph Nader won almost three million votes nationwide, out of 105 million cast. That may not seem like much, but because the election was so close overall, there is a strong case to be made that Nader, as much as any other factor, cost Al Gore the election. Why? Because many Nader voters would have voted for Gore had Nader not been in the race, and the pickup of these Nader voters would have given Gore more states. Exit polls indicated that roughly half the Nader voters would have preferred Gore to Bush, and only about 20 percent would have preferred Bush to Gore, while around 30 percent would have preferred to sit the election out if Nader weren’t around. If Ranked-Choice Voting had been used to reallocate Nader’s votes in 2000, Al Gore would certainly have won Florida (where Nader got almost 100,000 votes, much, much larger than the Bush margin of victory there), and may also have won New Hampshire, where Nader collected over 22,000 votes and Bush apparently won by under 8,000.

Either one of these states would have given Gore an electoral college win. Of course, had Ranked-Choice Voting been in place in November, 2000, candidates in the preceding months would likely have waged different campaigns. For example, knowing that Nader would not be siphoning off many votes from Gore, Bush might have moved closer to the center and still won, though with a slightly different platform.

Nader is only the most recent significant third-party spoiler in American presidential politics. In the 1992 and 1996 races, Ross Perot drained votes away from the major candidates, and twice denied Bill Clinton an overall popular majority of national votes. But since Perot, unlike Nader, ran somewhere in the middle rather than on the left, he tended to pull votes from both parties whereas Nader clearly hurt the Democrat more than the Republican. In fact, political scientists still debate exactly which major party Perot harmed more.

It’s also fascinating to imagine about how Ranked-Choice Voting might have played out in the fractured four-way presidential race of 1860. The Democrats in effect splintered over slavery-related issues and ended up splitting their votes among 3 different candidates: Stephen Douglas, John Breckinridge, and John Bell. Together, these three got more than 60 percent of the total national popular vote, and most of this 60 percent probably preferred Douglas over Abraham Lincoln.

But even if all of these anti-Lincoln votes had somehow been transferred to Douglas (or to any other anti-Lincoln candidate), Lincoln would, amazingly enough, still have won in the electoral college! In effect, he drew an inside straight by winning outright majorities in enough key Northern states to assure an electoral college victory.

Objections to an STV/Instant Runoff System and Possible Responses

Ranked-Choice Voting is not without problems. It might promote fringe candidates, who might get more initial first-choice votes if supporters knew that their votes would not be wholly wasted, but quickly reassigned to more major candidates. Some would consider this a bad thing. But at the end of the day, Ranked-Choice Voting for a single office like a governorship would generally make it harder for a fringe candidate to win with a simple plurality in a three-way race.

Also, Ranked-Choice Voting requires a more complicated ballot, allowing second and third choices, etc., to be formally tabulated. But elections are the key moments in a democracy when the people themselves speak, and there is much to be said for allowing them to speak clearly and communicate their nuanced views. Ranked-Choice Voting elicits more information from voters about their deep preference structure, and then tries to tally votes in a way that honors that structure. When Americans go to the grocery store, they understand the second-choice concept: Get Ruffles, but if they are sold out, get Pringles. If Americans can handle this level of complexity as shoppers, why not as voters?

Voters would become more adept at understanding and using Ranked-Choice ballots if such ballots were used more prominently in private organizations for elections in chess clubs, bowling leagues, homeowner associations, fraternal orders, and so on. Historically some urban areas have used variants of Ranked-Choice Voting for city council or school board elections, and the system has also been used at the national level in places like Ireland and Australia.

If a few states were to adopt Ranked-Choice Voting for governors’ elections, Americans in other states could see the system in action and decide whether to emulate it. This is how similar democratic innovations such as initiative, referendum, and direct election of senators took root in America.

The Grounds for the Lawsuit in Maine

The Complaint filed in federal court in Maine, which challenges the state’s decision to look beyond the first round of the November election, in which Republican incumbent Bruce Poliquin received more votes than anyone else but less than 50 percent, does not seem to articulate a compelling legal basis for challenging Maine’s use of Ranked-Choice Voting. To be sure, the Complaint characterizes Ranked-Choice Voting as “exotic” and points out that some people find Ranked-Choice Voting ballots complicated. (The complexity of the ballot might distinguish Ranked-Choice Voting from systems that require a separate runoff if no candidate receives more than 50 percent of the vote in the first go-round.) But so many of the ballots in use in American jurisdictions today can be confusing that it would be hard to conclude that Ranked-Choice Voting ballots cross a constitutional line in this regard.

The Complaint also points out that Ranked-Choice Voting can promote interest in fringe third parties and distract voters from learning much about the major party candidates, which might make voters’ second- and third-place vote preferences less reliable. But, again, I don’t see much in the text or history of the Constitution—or the jurisprudence of the Supreme Court—on which to find that Ranked-Choice Voting is distinctively and constitutionally problematic in this regard.

One potential basis of legal challenge would focus not on the concept of Ranked-Choice Voting, but the particular way Maine adopted it—via citizen initiative. Article I, Section 4 of the Constitution gives, in the first instance, the job of prescribing the “Times, Places and Manner” of holding Congressional elections to the “Legislature” of each state, a term that some commentator Justices believe refers to the standing elected representatives, and not the people of a state making law themselves via direct democracy. The plaintiffs in the Maine suit did not make the argument that Maine’s Ranked-Choice Voting system violates Article I, Section 4, probably because three years ago a 5-4 majority of the Supreme Court—in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC)—upheld the power of state electorates to use the initiative to take districting away from elected officials in order to address the problem of partisan or incumbent-entrenching gerrymandering. I have written extensively, including here about this case (which I believe was rightly decided), and also discussed how the case opens the door to the use of direct democracy not just in congressional election reform but also reform in presidential election (electoral college) processes, which also reflect problematic gerrymandering, albeit across rather than within states. The AIRC case was correctly decided not simply because past Supreme Court precedent strongly supported it (which it did). The case is correct also as a matter of founding constitutional text, history and structure, given the freedom states enjoy to experiment in allocating lawmaking power so long as majoritarian processes are respected, and also because the founders well understood that on certain topics (e.g., election rules, term limits, authority of elected state representatives, etc.) elected legislatures would have a selfish interest in resisting change, and that foxes should not have the final say over how chicken coops are guarded.

It bears noting, however, that one of the Court’s members who joined Justice Ruth Bader Ginsburg’s fine opinion in the AIRC case was the now-retired Justice Anthony Kennedy, and that Chief Justice Roberts wrote a very impassioned (if misguided) dissent for himself and three others. Perhaps Chief Justice Roberts (or one of the two newest justices) will feel bound by AIRC case as a matter of precedent, but that remains to be seen. Moreover, unlike many dissents, Chief Justice Roberts in the AIRC case did not rely too much on the majority having misinterpreted precedent. Rather, he argued extensively from his (mistaken) understandings of first principles of text, history, and structure of the Constitution.

It is also worth mentioning that in the AIRC case, there was a federal statutory basis for the majority’s holding. But Chief Justice Roberts not only expressed disagreement with the majority’s reading of the statute (a question on which he might feel constrained by stare decisis, a doctrine which always operates more robustly in the statutory context), but he (again, unpersuasively to my mind) argued that the majority’s reading of the federal statute rendered the statute itself unconstitutional.

So there is some chance, especially in light of Justice Kavanaugh’s replacement of Justice Kennedy, that the AIRC case could get revisited and either read very narrowly or overruled altogether. And in any event, even if that case survives, the message it sends about the use of direct democracy to circumvent partisan and incumbent entrenchment by elected representatives may be blunted in the coming years, if not in the Maine case then in some other dispute involving direct democracy regulation of federal elections.