Fast forward to January. Imagine Gov. Paul LePage proposes some new law. It is met with an eight-page letter from Attorney General Janet Mills, effectively declaring it unconstitutional.
What then? If you opposed the idea, you’d claim LePage doesn’t understand the Constitution and praise the wisdom of the Legislature in electing someone reasonable and prudent in Mills. If you supported it, you’d probably point out that the attorney general has missed the mark before when it came to legal showdowns with the governor.
But what if you’re in the supporter camp and learn Dan Wathen, a Republican and former chief justice of the Maine Supreme Judicial Court, ruled in a simulated trial that Mills’ position is correct and that the proposal is unconstitutional? What then? Do you wonder if the law’s proponent — Gov. LePage — might be mistaken?
Now remove LePage from that scenario and place an advocacy group in his stead. What do you get? Question 5, the “Ranked Choice Voting” legislation.
Its supporters are good people offering what they believe is an electoral improvement; you can’t fault them for that, even if large amounts of their funding comes from out-of-state groups. However, when legitimate concerns about the Maine Constitution are brought up, they run roughshod over them. The gist of their argument is “if there is a problem, don’t worry about it; we’ll fix it later.”
Yet as Mills’ letter adeptly points out, the constitutional problems are plain. The exact language of the Maine Constitution provides that winners are determined by a “plurality of all votes returned.” And it requires votes be counted by the “election officials of the various towns and cities.” Ranked Choice Voting jettisons pluralities in favor of majorities and entrusts the secretary of state with counting the votes.
Maybe it seems old-fashioned and quaint, but constitutions are meant to mean something — you don’t get to ignore their provisions because you don’t like them. That is why we require those in government to swear an oath not to “good ideas,” but to the Constitution, be it federal or state.
If Donald Trump were writing big checks to support some unconstitutional ballot question that would allow him to sue more people for libel, the howls would never cease. We would hear paeans about the First Amendment, praising its prudence and wisdom while castigating Trump for disregarding it. And they would be absolutely right.
But some parts of constitutions are not more equal than others. If there are problems that need addressing, you build a grassroots movement to build support to change the Constitution, as happened with the repeal of prohibition. Or you go to war, as we did with slavery. You can’t just ignore inconvenient parts.
Circling back to the history of the Maine Constitution, we have historically done things correctly. When our state decided to authorize absentee voting or mechanical voting machines, we passed constitutional amendments. When courts interpreted Maine’s version of the Second Amendment to not protect individual rights, we went through the process to clarify it. We didn’t simply pass a law directly contradicting the Constitution.
That is the biggest challenge with the Ranked Choice Voting proposal. As Americans and Mainers, we pride ourselves on being a nation (or state) of laws. And as kids learn in social studies classes from Calais to Caratunk, the supreme law of the land is vested in a constitution.
This does not mean we shouldn’t explore electoral reform. Others have suggested moving to a runoff election, as Lewiston does with its mayoral election. Maybe that is a better idea…or maybe it isn’t. But even if it is the best idea in the world, passing such a law today setting those runoffs in December would be unconstitutional. Chief Justice John Roberts’ quote — “there is no good idea clause in the Constitution” — holds true in Maine as well.
So, as you take up the mantle of lawmaker this November, consider the constitutionality of Question 5. If you believe multiple rounds of voting occurring on the same ballot and counted by the Secretary of State meets the constitutional requirements of a plurality winner as counted by the various municipalities, and you believe Ranked Choice Voting is an important electoral reform, then vote for it.
Yet if you can’t make the intellectual leaps necessary to square the Maine Constitution’s requirements with the plain text of the proposal, then vote against it. Maybe it is quaint and old-fashioned, but we shouldn’t get in the habit of adopting unconstitutional laws.