Here’s what RCV for presidential elections means for Maine
When a bill reaches the desk of the governor, the chief executive can sign it, veto it or allow it to become law without his or her endorsement. Governor Janet Mills announced last week that she is allowing LD 1083 to become law without her signature, a bill that expands the use of ranked-choice voting to presidential primary and general elections in Maine.
When a bill is enacted in both chambers of the legislature, it is then delivered to the governor. The governor has 10 days, excluding Sundays, to make a decision on the legislation. When the legislature is in session, a bill left unsigned by the governor after 10 days becomes law 90 days after the legislature adjourns. However, when the legislature adjourns before the end of the 10 day window, the governor can leave the bill unsigned and it does not become law until the legislature reconvenes.
Because the legislature adjourned on August 26 (before the 10-day window) and Governor Mills did not sign LD 1083, it will technically be held until the legislature returns to Augusta for the Second Session in January — too late for it to be implemented for the March 2020 party primaries. This is known as a pocket veto.
LD 1083 was passed by the Maine House of Representatives in June and tabled in the Senate before adjournment on June 20 because the bill required funding for enactment. When the legislature returned to Augusta on August 26 to consider Governor Mills’ bonds during a special session, Senate President Troy Jackson decided to run the bill in a last-ditch effort to get ranked-choice voting in place for the March 2020 Democratic presidential primary election. The bill passed with a 20-12 vote, mostly along party lines. The only lawmaker to break ranks was Sen. Bill Diamond, a Democrat and former Maine Secretary of State.
In her memo to the legislature, Governor Mills “lauded” ranked-choice voting while also expressing concerns about how the bill will be funded, the logistics of collecting the ballots from more than 400 towns during winter and the impact of using ranked-choice voting to select delegates for party conventions.
When the legislature adjourned from their special session, they neglected to allocate funding for this particular bill. According to Secretary of State Matt Dunlap, the change requires the legislature to appropriate around $100,000 to his office to implement ranked-choice voting in the primaries.
In addition to the cost issue, LD 1083 would be extremely confusing for voters, especially since the results of the primary elections under ranked-choice voting would be meaningless as it relates to the selection of delegates by political parties. Political parties and their delegates are not required to abide by the election results reported from the Secretary of State and can make their own determinations on how party delegates should be allocated.
Currently, Democratic National Committee rules require presidential candidates to receive at least 15 percent of the vote to be awarded delegates to the party convention. In other words, the Secretary of State would be required run a ranked-choice tabulation to determine a “majority winner” for primary elections, but political parties can disregard the results of these tabulation(s) and apportion delegates however they please. Put simply, using ranked-choice voting in presidential primaries is a waste of taxpayer dollars. Governor Mills made the case against using ranked-choice voting in party presidential primaries in a letter to the legislature, writing:
“In the case of the presidential primary, the purpose is not to elect an individual or to choose electors for President, but to allow the party using the primary system to apportion delegates to its convention. Even without this bill, however, the parties could still use ranked-choice voting, or some similar process, in the selection of delegates. Depending on state and national party rules, a party which uses a primary presidential election could elect delegates to the party convention without reference to the results of the primary, and they may select delegates by ranked-choice voting, or some similar method, at the municipal caucuses held in March, per 21-A MRS §311. The party will be free to employ ranked-choice voting in the very process that is most likely to influence which presidential candidates the delegates to the national convention represent in nominating a candidate for President. People whose candidates do not achieve the required threshold will be able to vote for someone else, and the purposes of ranked-choice voting can be fulfilled without making use of it in the primary.”
While this bill will not apply ranked-choice voting in time for it to be used in the presidential primaries in March 2020, it will be used in the presidential general election in November 2020. Maine will be the first state to determine presidential electors through ranked-choice voting. Because Maine is one of two states that splits its electoral votes by congressional districts, three ranked-choice voting tabulations that occur; one statewide tabulation and two more tabulations for the first and second congressional districts.
Depending on how many candidates qualify for the ballot in Maine, the use of ranked-choice voting could dramatically change the outcome of these races. For instance, the 2016 election did not produce a candidate who received a majority outright in the statewide vote, which decides two of the state’s four electors. Donald Trump received 335,593 votes accounting for 44.9 percent of the vote whereas Hillary Clinton received 357,735 votes, or 47.8 percent of the vote.
Assuming these vote totals would have been static during a ranked-choice election, there could have been enough third-party voters to hand the statewide vote to Donald Trump; the third-party candidate most ideologically similar to Trump (Gary Johnson) received 5.1 percent of the total votes cast and came in third place, while all remaining 2016 candidates combined for only 2.2 percent of the vote in Maine.
Using ranked-choice voting for presidential elections in Maine likely means the rest of the nation will be left waiting for the results of Maine’s tabulations. Maine will need to wait several days or weeks to know the results of the election if no presidential candidates receive an outright majority in the first round.
Outside of the logistical difficulties, there are practical issues with ranked-choice voting as well. Ranked-choice voting produces false majorities 61 percent of the time by exhausting an average of 11 percent of the votes cast by the electorate; it is as if these voters never showed up on Election Day. In other words, ranked-choice voting more often than not produces a plurality by reallocating and removing ballots from the final tally.
Despite these issues, ranked-choice voting for presidential elections is likely constitutional. Article II, Section 2 of the United States Constitution makes it clear that the state legislatures have the authority to decide how presidential electors are appointed.
One thing is for certain — if Governor Mills had vetoed this legislation instead of kicking the can down the road, we would have a more simple and less controversial voting system in place for the 2020 elections.