Jamie T. Kilbreth, Attorney, Drummond Woodsum

"The claim of unconstitutionality is nothing more than rank speculation."

"Although there has been a recent suggestion that the citizen-initiative to establish ranked choice voting (“RCV”) is unconstitutional, that suggestion is misplaced for several reasons:

First, statutes are presumed constitutional and will be interpreted in any way possible to avoid finding them to be unconstitutional. That basic principle applies with even more force in this case, where RCV will have been enacted not by the Legislature but by the ultimate legislative body, the people.

Second, the Constitutional provision that has been identified as an obstacle to RCV was not intended to enshrine a plurality as a standard set in stone as has been suggested. Rather, it was aimed at eliminating the perceived evil of an election being decided by the Legislature rather than by the people in cases where no candidate had received a majority.

Third, there is no inconsistency between RCV and the constitutional provision in any case. In determining the outcome of the election, the Legislature first determines “the number of votes duly cast.” Since under RCV those votes include all a voter’s choices, the winner will likely have a majority of all votes cast, or possibly, depending on the number of “exhausted ballots,” a plurality. But in either case, since a majority is also a plurality, the winner will have received at least a plurality of all votes cast. Nothing in the Constitution prohibits this interpretation and, critically, the voters will have adopted it in deciding that RCV is how they want to conduct their elections.

Finally, apart from the strong reasons supporting RCV’s constitutionality, there are far too many possible outcomes in an RCV election to claim at this stage of the campaign that it is “unconstitutional.” No one can predict the number of candidates in future elections, or the number of votes, or how many choices voters might make if there are multiple candidates. The claim of unconstitutionality is nothing more than rank speculation."

Jamie T. Gilbreth
Attorney, Drummond Woodsum
Former Chief Deputy Attorney General, State of Maine

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