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Given Under The Provisions of Article VI

Supreme Court of Maine

May 23, 2017

GIVEN UNDER THE PROVISIONS OF ARTICLE VI, SECTION 3 OF THE MAINE CONSTITUTION

          DATED FEBRUARY 2, 2017

          ARGUED APRIL 13, 2017

          Timothy C. Woodcock, Esq. (orally), Ryan P. Dumais, Esq., and Kady S. Huff, Esq., Eaton Peabody, Bangor, for the Maine State Senate

          Catherine R. Connors, Esq., and Joshua D. Dunlap, Esq. (orally), Pierce Atwood, LLP, Portland, for the Maine House Republican Caucus and the Maine Heritage Policy Center

          Janet T. Mills, Attorney General, Susan P. Herman, Dep. Atty. Gen., Phyllis Gardiner, Asst. Atty. Gen. (orally), and Thomas A. Knowlton, Asst. Atty. Gen., Office of the Attorney General, Augusta, for the Attorney General and the Secretary of State

          Katherine R. Knox, Esq., Bernstein Shur, Augusta, for Senators Troy Jackson, Mark Dion, Shenna Bellows, Ben Chipman, Justin Chenette, Rebecca Millett, David Miramant, and Eloise Vitelli

          James T. Kilbreth, Esq. (orally), David M. Kallin, Esq., and Emily T. Howe, Esq., Drummond Woodsum, Portland, for The Committee for Ranked Choice Voting

          Rachel M. Wertheimer, Esq. (orally), Jonathan M. Dunitz, Esq., Marie J. Mueller, Esq., and Samuel J. Baldwin, Esq., Verrill Dana LLP, Portland, for the League of Women Voters of Maine and Maine Citizens for Clean Elections

          Clifford Ginn, Esq., Ginn Law, LLC, Scarborough, T. Clark Weymouth, Esq., Hogan Lovells U.S. LLP, Washington, D.C., and G. Michael Parsons, Jr., Esq., Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., for FairVote

          Marshall J. Tinkle, Esq., Thompson, MacColl & Bass, LLC, PA, Portland, pro se Dmitry Bam, Esq., University of Maine School of Law, Portland, pro se Larry Diamond, Hoover Institution, Stanford, California, pro se

         QUESTIONS PROPOUNDED BY THE MAINE SENATE IN A COMMUNICATION DATED FEBRUARY 2, 2017

         WHEREAS, it appears to the Senate of the 128th Legislature that the following are important questions of law and that this is a solemn occasion; and

         WHEREAS, the Constitution of Maine, Article VI, Section 3 provides for the Justices of the Supreme Judicial Court to render their opinion on such questions; and

         WHEREAS, separate provisions of the Constitution of Maine, adopted at different times, provide that persons elected to the House of Representatives and as Governor shall be elected "by a plurality of all votes returned, " Me. Const. art. IV, pt. 1, §5 and art. V, pt. 1, §3, and those elected to the Senate "by a plurality of the votes in each senatorial district, " Me. Const. art. IV, pt. 2, §4; and

         WHEREAS, Article IV, Part First, Section 5 of the Constitution of Maine provides that in elections for the House of Representatives, "the election officials of the various towns and cities shall … receive the votes of all the qualified electors, sort, count and declare them in open meeting; and a list of the persons voted for shall be formed, with the number of votes for each person against that persons name.... Fair copies of the lists of votes shall be attested by the municipal officers and the clerks of the cities and towns [who] shall cause the same to be delivered into the office of the Secretary of State forthwith ... [and] [t]he Governor shall examine the returned copies of such lists and ... shall issue a summons to such persons as shall appear to have been elected by a plurality of all votes returned, to attend and take their seats."; and

         WHEREAS, Article IV, Part Second, Section 3 of the Constitution of Maine provides that meetings for the election of Senators "shall be notified, held and regulated and the votes received, sorted, counted, declared and recorded, in the same manner as those for Representatives. Fair copies of the lists of votes shall be attested by the clerks of the cities and towns or other duly authorized officials and sealed up in open meetings and ... delivered into the office of the Secretary of State forthwith."; and Article IV, Part Second, Section 4 further provides that "[t]he Governor shall ... examine the copies of such lists, and ... issue a summons to such persons, as shall appear to be elected by a plurality of the votes in each senatorial district, to attend that day and take their seats."; and

         WHEREAS, Article V, Part First, Section 3 of the Constitution of Maine provides that "meetings for election of Governor shall be notified, held and regulated and votes shall be received, sorted, counted and declared and recorded, in the same manner as those for Senators and Representatives. Copies of lists of votes shall be sealed and returned to the secretarys office in the same manner and at the same time as those for Senators. The Secretary of State ... shall... lay the lists returned to the secretary's office before the Senate and House of Representatives to be by them examined, ... and they shall determine the number of votes duly cast for the office of Governor, and in case of a choice by plurality of all of the votes returned they shall declare and publish the same."; and

         WHEREAS, Article V, Part First, Section 3 of the Constitution of Maine further provides that "[i]f there shall be a tie between the 2 persons having the largest number of votes for Governor, the House of Representatives and the Senate meeting in joint session, and each member of said bodies having a single vote, shall elect one of said 2 persons having so received an equal number of votes and the person so elected by the Senate and House of Representatives shall be declared the Governor."; and

         WHEREAS, on November 8, 2016, the voters of the state approved a measure referred to the people pursuant to Article IV, Part Third, Section 18 of the Constitution of Maine, entitled An Act To Establish Ranked-choice Voting, referred to in this order as "the Act, " which creates new methods of casting ballots for candidates, counting votes and determining elections for the offices of Governor, State Senator and State Representative, as well as the offices of United States Senator and Representative to Congress, and applies to elections held on or after January 1, 2018; and

         WHEREAS, section 2 of the Act defines "ranked-choice voting" as "the method of casting and tabulating votes in which voters rank candidates in order of preference, 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"; and

          WHEREAS, the Act provides that "[f]or offices elected by ranked-choice voting, the Secretary of State shall tabulate the votes according to the ranked-choice voting method described in [the Maine Revised Statutes, Title 21-A, ] section 723-A" as enacted by section 5 of the Act; and

         WHEREAS, the method of ranked-choice voting described in the Act does not allow the Secretary of State to aggregate the lists of votes compiled y city and town officials and submitted to the Secretary as required by the Constitution of Maine as set forth above, but instead necessitates that all ballots or images of ballots cast by voters within the entire electoral district be delivered to a central location in order for the Secretary of State to conduct multiple rounds of counting and redistributing voter preferences in each subsequent round of counting using specially designed computer software; and

         WHEREAS, the Attorney General issued an opinion on March 4, 2016, to the effect that the system of ranked-choice voting established in the Act conflicts with provisions of Article IV, Part First, Section 5; Article IV, Part Second, Sections 3 and 4; and Article V, Part First, Section 3 of the Constitution of Maine, which declare that ballots are to be counted by municipal officials and that the winner of each electoral race is the candidate who received a plurality of the votes cast and counted at the municipal level, and further that the ranked-choice method of resolving a tie vote in a race for Governor conflicts with Article V, Part First, Section 3; and

         WHEREAS, the Act appears to conflict with the Constitution of Maine inasmuch as it would not recognize a person obtaining a plurality of the votes counted and declared by city and town officials as having prevailed in the election; would fundamentally change the role of city and town officials in sorting, counting, declaring and recording votes and would transfer those duties to the Secretary of State; and would eliminate the role of the House of Representatives and the Senate in resolving tie votes for the office of Governor; and

         WHEREAS, the Acts provision for resolving tie votes for Governor by lot conflicts with duties that the Constitution of Maine imposes on Representatives and Senators under such circumstances pursuant to Article V, Part First, Section 3 and, therefore, would require them to violate their oath of office pursuant to Article IX, Section 1 of the Constitution of Maine; and

          WHEREAS, if the Act were applied to elections in 2018 without resolution of the constitutional questions presented here, a candidate for Representative, Senate or Governor who gained a plurality of the votes counted by city and town officials but failed to prevail in the subsequent round or rounds counted centrally by the Secretary of State pursuant to the Act could challenge that candidates declared loss as violative of the plurality vote requirement in the Constitution of Maine for the position sought by that candidate, and thereby place the validity of the election into question and delay the seating of a Representative, Senator or Governor; and

         WHEREAS, failing to address important and unresolved questions of law about the constitutionality of ranked-choice voting before the end of the current legislative session would create uncertainty over the outcome of any future election contests involving more than 2 candidates; and

         WHEREAS, the Senate requests guidance from the Justices as to the constitutionality of the Act so that it may determine, during the current legislative session, whether it is necessary to propose constitutional amendments for submission to the voters for approval in November 2017, in order to implement ranked-choice voting for elections held on or after January 1, 2018, as the Act requires; and

         WHEREAS, the 128th Legislature also must determine during the current legislative session whether to authorize and appropriate in excess of $1, 500, 000 in the biennial budget for the period beginning July 1, 2017 to implement the Act, including funds at a minimum for new voting equipment and computer software, staff positions, ballot printing and transportation and storage of ballots for counting in a central location; and

         WHEREAS, it is vital that the Senate be informed during the current legislative session as to the opinions of the Justices on the questions propounded in this order; now, therefore, be it

         ORDERED, that, in accordance with the provisions of the Constitution of Maine, the Senate respectfully requests the Justices of the Supreme Judicial Court to give the Senate their opinion on the following questions of law:

         Question 1. Does the Acts requirement that the Secretary of State count the votes centrally in multiple rounds conflict with the provisions of the Constitution of Maine that require that the city and town officials sort, count, declare and record the votes in elections for Representative, Senator and Governor as provided in the Constitution of Maine, Article IV, Part First, Section 5, Article IV, Part Second, Section 3 and Article V, Part First, Section 3?

         Question 2. Does the method of ranked-choice voting established by the Act in elections for Representative, Senator and Governor violate the provisions of the Constitution of Maine, Article IV, Part First, Section 5, Article IV, Part Second, Sections 3 and 4 and Article V, Part First, Section 3, respectively, which declare that the person elected shall be the candidate who receives a plurality of all the votes counted and declared by city and town officials as recorded on lists returned to the Secretary of State?

         Question 3. Does the requirement in the Act that a tie between candidates for Governor in the final round of counting be decided by lot conflict with the provisions of the Constitution of Maine, Article V, Part First, Section 3 relating to resolution of a tie vote for Governor by the House of Representatives and Senate?

         OPINION OF THE JUSTICES

         To the Maine Senate:

         [¶1] By communication dated February 2, 2017, the Maine Senate propounded three Questions to us as individual Justices of the Maine Supreme Judicial Court pursuant to article VI, section 3 of the Maine Constitution, which states, "The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives." Me. Const. art. VI, § 3; see Opinion of the Justices, 682 A.2d 661, 663 (Me. 1996).

         [¶2] It is our honor to provide the following response. All seven Justices agree with the Opinion set forth herein.

         I. BACKGROUND

         [¶3] The Senate seeks our opinions regarding the constitutionality of a statute recently enacted through citizen initiative, L.D. 1557, §§ 1-6 (referred to the voters, 127th Legis. 2016) (effective Jan. 7, 2017) (to be codified at 21-A M.R.S. §§ 1(27-C), 1(35-A), 601(2)(J), 722(1), 723-A (2017)), [1] which established ranked-choice voting for elections of United States Senators, United States Representatives, Governor, State Senators, State Representatives, and federal and state primaries in Maine occurring on or after January 1, 2018.[2] 21-A M.R.S. § 1(27-C); L.D. 1557, §§ 1, 6.

         [¶4] The term "ranked-choice voting" is defined by the newly enacted Act as "the method of casting and tabulating votes in which voters rank candidates in order of preference, 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." 21-A M.R.S. § 1(35-A); L.D. 1557, § 2. As defined, ranked-choice voting contrasts with the statutory description of Maines previous system of single-choice voting, by which voters voted for a single candidate for each seat. See 21-A M.R.S. §§ 691, 692, 723 (2016). The crux of the Senates inquiry is whether this statutorily enacted system of ranked-choice voting violates the provisions of the Maine Constitution by which successful candidates for office are identified "by a plurality" of all votes returned, namely, Me. Const. art. IV, pt. 1, § 5 (regarding the election of State Representatives); Me. Const. art. IV, pt. 2, § 4 (regarding the election of State Senators); and Me. Const. art. V, pt. 1, § 3 (regarding the election of the Governor).[3]

         [¶5] We invited briefs from the Maine Senate and other interested persons and entities. We received briefs from the Maine Senate; the Maine House Republican Caucus and the Maine Heritage Policy Center; the Secretary of State; the Attorney General; Maine Senators Troy Jackson, Mark Dion, Shenna Bellows, Ben Chipman, Justin Chenette, Rebecca Millett, David Miramant, and Eloise Vitelli; the League of Women Voters of Maine and Maine Citizens for Clean Elections; Marshall J. Tinkle, Esq.; the Committee for Ranked Choice Voting; FairVote; Dmitry Bam; and Larry Diamond.[4] We conducted an Oral Argument on the Questions on April 13, 2017.

         II. DISCUSSION

         [¶6] We begin our consideration of the Questions presented by noting that only the question of the constitutionality of the Ranked-Choice Voting Act is presented to us. The public policy of ranked-choice voting, including the benefits and detriments of such a voting procedure, is squarely outside our consideration. Such matters instead rest in the capable hands of the voters of the State of Maine, the Maine Legislature, and the Governor. See City of Belfast v. Belfast Water Co., 115 Me. 234, 241, 98 A. 738 (1916); Moulton v. Scully, 111 Me. 428, 448, 89 A. 944 (1914) ("The design was to have the legislative power not final but subject to the will of the people....").

         [¶7] We are asked to opine on whether the Ranked-Choice Voting Act violates the Maine Constitution in any of three respects. It is the Maine Constitution that provides for the citizen-initiative process by which the people vote directly on proposed legislation. Me. Const. art. IV, pt. 3, § 18; see 21-A M.R.S. §§ 901-906 (2016); League of Women Voters v. Sec'y of State, 683 A.2d 769, 771 (Me. 1996). It important to note that the Maine Constitution, citizen-enacted legislation, and legislatively enacted legislation reflect the will of the people. See Moulton, 111 Me. at 463, 89 A. 944 (Haley, J., dissenting). The object must always be to "ascertain the will of the people." Lewis v. Webb, 3 Me. 326, 337(1825).

         [¶8] Nonetheless, when a statute-including one enacted by citizen initiative-conflicts with a constitutional provision, the Constitution prevails. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-80 (1803). It is "supposed to be essential to all written constitutions, that a law repugnant to the constitution is void." Id. at 180; see League of Women Voters, 683 A.2d at 771-72; Allen v. Inhabitants of Jay, 60 Me. 124, 138 (1872) ("A statute in direct violation of the essential principles of justice, is not the law of the land within the meaning of the [Constitution." (quotation marks omitted)). Thus, as is required, the result of any opinion or declaration that a statute is unconstitutional is the elevation of the will of the people as expressed in the Constitution above that as expressed in a statute. See Marbury, 5 U.S. (1 Cranch) at 180.

         A. Authority to Issue Advisory Opinions

         [¶9] Advisory Opinions represent the advice of the individual Justices. Me. Const. art. VI, § 3; Opinion of the Justices, 682 A.2d at 663. They are not binding on the Justices individually or together in any subsequent case that may come before the Law Court and they have no precedential value or conclusive effect. Opinion of the Justices, 682 A.2d at 663; see Opinion of the Justices, 281 A.2d 321, 322 (Me. 1971) ("The rule of stare decisis does not apply to Justices Constitutional Advisory Opinions."). An Advisory Opinion of the Justices, however, provides guidance and legal analysis that is "required" by the other Branches for their use in decision-making and action. Me. Const. art. VI, § 3. Such advice must be cautiously and sparingly given.

         [¶10] Before the Justices may consider the Questions propounded by the Senate, "it is first their constitutional duty to investigate with care whether in the given situation the Constitution denies them the right to answer the questions propounded." Opinion of the Justices, 396 A.2d 219, 223 (Me. 1979). This threshold inquiry is critical to the interactions of the three Branches, both because the Justices are constrained by strict constitutional limitations on their authority to issue Advisory Opinions and because any violation of those constraints implicates our governments tripartite structure. To assure clarity, we address these concepts in detail.

         1. Foundational Limitations on Judicial Intervention

         [¶11] In the normal course, the Justices of the Supreme Judicial Court exercise great care to avoid issuing Advisory Opinions based on two "overriding principles binding upon the judiciary"-the separation of powers doctrine and the requirement of a live case or controversy. Id. Because the authority of the Justices to author constitutionally allowed Advisory Opinions is a narrow exception to those principles, we think it necessary to address them here.

         a. Separation of Powers

         [¶12] The Maine Constitution divides the "powers of government" into three Branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. Me. Const. art. III, § 1.[5] "No person or persons, belonging to one of these [Branches], shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted." Me. Const. art. III, § 2; see Opinion of the Justices, 2002 ME 169, ¶ 4, 815 A.2d 791.

         [¶13] The separation of powers doctrine thereby prohibits any of the three Branches of government from exercising the powers relegated to either of the other two Branches. Me. Const. art. III, § 2; see Bar Harbor Banking & Tr. Co. v. Alexander, 411 A.2d 74, 77 (Me. 1980) ("The constitutionally mandated separation of powers forbids precipitous injunctive interference with the legitimate, ongoing [function of another Branch of government]."). Separation of powers is similarly reflected in the United States Constitution. See Marbury, 5 U.S. (1 Cranch) at 176-80; see also O'Donoghue v. United States, 289 U.S. 516, 530 (1933); Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (stating that the object of the separation of powers doctrine is, "by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy").

         [¶14] Thus, in the absence of direct constitutional authorization to provide Advisory Opinions, the doctrine of separation of powers dictates that "we decline to answer questions presented by the Governor or the Legislature regarding their respective authority." Opinion of the Justices, 2002 ME 169, ¶ 4, 815A.2d791.

         b. Case or Controversy Requirement

         [¶15] The second important principle limiting the authority of the Justices is the "universal rule [that] judicial power may be exercised only in an actual case and controversy." Opinion of the Justices, 396 A.2d at 223. "A justiciable case or controversy involves a claim of present and fixed rights, as opposed to hypothetical or future rights, asserted by one party against another who has an interest in contesting the claim." Hathaway v. City of Portland, 2004 ME 47, ¶ 11, 845 A.2d 1168 (quotation marks omitted). Again, in the absence of constitutional authorization, the requirement of an actual case or controversy prohibits the issuance of an Advisory Opinion.[6]

         2. Express Constitutional Prerequisites to Advisory Opinions

         [¶16] Providing a narrow exception to these core concepts attendant to the exercise of judicial power, the Maine Constitution, in article VI, section 3, carves out a single exception by which each Justice of the Supreme Judicial Court may offer a judicial opinion in the absence of a live case or controversy, and in tension with the usual application of the separation of powers doctrine: "The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives."[7] Me. Const. art. VI, § 3; see Opinion of the Justices, 355 A.2d 341, 388 (Me. 1976); Opinion of the Justices, 396 A.2d at 223. It is, therefore, "manifestly inappropriate for the Justices of the Supreme Judicial Court to express an opinion on an important question of law, with the single exception plainly stated in Article VI, Section 3, until the issue arises in the course of an adversary proceeding." Opinion of the Justices, 355A.2dat388.

         [¶17] Because an Advisory Opinion represents a unique exception to such foundational principles, the Maine Constitution carefully cabins the authority of the Justices to provide an Advisory Opinion. The tension between the constitutionally required separation of powers and the constitutionally provided authority of the Justices of the Maine Supreme Judicial Court to provide official but nonbinding advice to the other Branches is addressed through the balance articulated in the requirements (1) setting out who may seek the Justices advice, (2) inquiring whether that advice is sought as to important questions of law, and (3) providing that a solemn occasion must exist for the Justices provision of such advice. Me. Const. art. VI, § 3. These boundaries on the authority of the Justices "must be strictly observed." Opinion of the Justices, 437 A.2d 597, 610 (Me. 1981) (quotation marks omitted).

         [¶18] We address in turn these express constitutional prerequisites to our authority to provide an Advisory Opinion to another Branch of government in the absence of a case or controversy.

         a. Standing

         [¶19] By express constitutional mandate, the Justices may consider issuing an Advisory Opinion only when requested by the Governor, or by the Maine Senate or the Maine House of Representatives. Me. Const. art. VI, § 3; see Opinion of the Justices, 2015 ME 27, ¶ 17, 112 A.3d 926.

         b. Important Question of Law

         [¶20] Perhaps because the Governor and the Houses of the Legislature are unlikely to seek an Advisory Opinion of the Justices in the absence of an important question of law, there is little jurisprudence directly setting out the parameters of those occasions. We interpret the "important questions of law" requirement to mean that questions that are of little or no consequence, esoteric, or purely academic are not properly considered in an Advisory Opinion. Me. Const. art. VI § 3; see Opinion of the Justices, 571 A.2d 805, 810 (Me. 1989). Given the nature of the Questions before us today, we do not further address the jurisprudential descriptions of this prerequisite to exercising our Advisory Opinion authority.

         c. Solemn Occasion

1 L.D. 1557 (referred to the voters, 127th Legis. 2016) (effective Jan. 7, 2017) (to be codified at 21-A M.R.S. §§ 1(27-C), 1(35-A) 601(2)(J), 722(1), 723-A (2017)) is reproduced in Appendix B.

         [¶21] Determining the existence of a solemn occasion has, in contrast, presented a substantial challenge for the Justices throughout the years. Not surprisingly, during the almost two hundred years since the adoption of the Maine Constitution, the interpretation of the phrase "solemn occasions" within the meaning of article VI, section 3, has evolved. Over time, however, several guideposts have emerged to inform the Justices exercise of their constitutionally provided authority to offer non-binding advice. These guideposts are judge-made parameters, not articulated in the Constitution. They each spring from a judicial ...


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