Argued: April 12, 2018
Timothy C. Woodcock, Esq. (orally), Ryan P. Dumais, Esq., and
Kady S. Huff, Esq., Eaton Peabody, Bangor, for the Maine
Phyllis Gardiner, Esq. (orally), and Thomas A. Knowlton,
Esq., Office of the Attorney General, Augusta, for the
Secretary of State
G. Monteleone, Esq. (orally), and Michael R. Bosse, Esq.,
Bernstein Shur, Portland, for the Committee for Ranked-Choice
Voting, Lucas St. Clair, Mark Eves, Diane Russell, Betsy
Sweet, and Ben Chipman
Timothy R. Shannon, Esq., Rachel M. Wertheimer, Esq.,
Jonathan Dunitz, Esq., Marie M. Mueller, Esq., and Samuel
Baldwin, Esq., Verrill Dana, LLP, Portland, for amicus The
League of Women Voters of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
The Superior Court (Kennebec County, Murphy, J.) has reported
seven questions to us pursuant to M.R. App. P. 24(a),
addressing the Secretary of State's planned
implementation of ranked-choice voting in Maine's primary
elections scheduled for June 12, 2018. The first three
questions are substantive, and the remaining questions
address the justiciability of those first three questions.
This opinion focuses only on the June 2018 primary election;
it does not address any other potential application of
ranked-choice voting in Maine.
We accept the Report, answer Question 3 on its merits,
conclude that the other questions raise nonjusticiable
issues, and remand the matter to the Superior Court for entry
of a final judgment. In summary:
(1) We assume, without deciding, that the Maine Senate, a
single body of the bicameral Maine Legislature, has standing
to seek a declaration regarding the legal status of
ranked-choice voting in the June 2018 primary elections and
to challenge in court the operational planning of the
Secretary of State, who is a constitutional officer;
(2) We answer Reported Question 3 and determine that
ranked-choice voting is the current statutory law of Maine
for the primary elections to be held on June 12, 2018;
(3) We determine that Reported Questions 1 and 2, which ask
the Court to act in contravention to the constitutional
provision respecting the separation of powers of the three
independent Branches of government, are not justiciable; and
(4) We determine that the remaining questions are moot.
The history of ranked-choice voting in Maine to date could
provide the substance of an entire civics course on the
creation of statutory law in the State of Maine. We provide
the highlights here.
In 2016, the people of Maine enacted citizen-initiated
legislation to implement ranked-choice voting for general and
primary elections occurring on or after January 1, 2018, for
the offices of United States Senator and Representative,
State Senator and Representative, and Governor. L.D. 1557,
§§ 1-6 (referred to the voters, 127th Legis. 2016)
(effective Jan. 7, 2017) (codified at 21-A M.R.S.
§§ 1(27-C), 1(35-A), 601(2)(J), 722(1), 723-A
(2017)); see Me. Const, art. IV, pt. 3, § 18.
The Ranked-Choice Voting Act created by the citizens
'initiative did not, however, amend 21-A M.R.S. §
723(1) (2017),  which states that "[i]n a primary
election, the person who receives a plurality of the votes
cast for nomination to any office, as long as there is at
least one vote cast for that office, is nominated for that
office." Thus, section 723(1) continued to provide that
the winner of a primary election would be determined by a
plurality of the votes, even while section 1(27-C) named
primary elections as among those elections to be conducted
using ranked-choice voting.
On May 23, 2017, at the request of the Maine Senate pursuant
to Me. Const, art. VI, § 3, we, as individual Justices
of the Maine Supreme Judicial Court, issued a unanimous
Advisory Opinion stating that specific aspects of the RCVA
conflict with three portions of the Maine Constitution-Me.
Const, art. IV, pt. 1, § 5; Me. Const, art. IV, pt. 2,
§ 4; and Me. Const, art. V, pt. 1, § 3. Opinion
of the Justices, 2017 ME 100');">2017 ME 100, ¶¶ 1, 7, 9, 57,
64-68, 72, 162 A.3d 188. Those sections address the election
of the Governor and members of the Maine Legislature, both
Senators and Representatives. Me. Const, art. IV, pt. 1, §
5; Me. Const, art. IV, pt. 2, § 4; Me. Const, art. V,
pt. 1, § 3.
In the months that followed, a number of legislative efforts
were commenced regarding ranked-choice voting. See
L.D. 1256 (128th Legis. 2017); L.D. 1624 (128th Legis. 2017);
L.D. 1625 (128th Legis. 2017). Ultimately, the Legislature
enacted "An Act To Implement Ranked-choice Voting in
2021, " which we refer to as the Implementation Act.
P.L. 2017, ch. 316, §§ 1-14 (effective Feb. 5,
2018); see Comm. Amend. B to L.D. 1646, No. H-568
(128th Legis. 2017). The Implementation Act, P.L. 2017, ch.
316, §§ 1-14, had two essential components:
• It delayed all aspects of the implementation of
ranked-choice voting until December 1, 2021, and
• It provided for an automatic repeal of all
ranked-choice voting provisions on December 1, 2021, if, by
that date, the Maine Constitution had not been amended to
allow ranked-choice voting for the offices of Maine Senator,
Maine Representative, and Governor.
Three days before the effective date of the Implementation
Act, a people's veto of portions of the Implementation
Act was initiated by the submission of signatures later
certified by the Secretary of State. See Me. Const.
art. IV, pt. 3, §§ 17, 20; 21-A M.R.S. §§
901-906 (2017). Pursuant to Me. Const. art. IV, pt. 3, §
17(3), the Secretary of State announced that the statewide
vote on whether to veto the challenged portions of the
Implementation Act would take place on June 12, 2018, the
same day as the primary elections for the United States House
and Senate, Governor, and State House and Senate.
As a result of the initiation of the people's veto,
certified by the Secretary of State, the effect of those
challenged portions of the Implementation Act was
"suspended" as of February 2, 2018, pending the
vote on June 12, 2018. Me. Const, art. IV, pt. 3, §
17(2). Critical to the matter before us, the delay of the
implementation of ranked-choice voting until 2021 was
suspended. As a result, the RCVA, along with certain
portions of the Implementation Act, became immediately
effective, thus effectuating ranked-choice voting for the
June 2018 primary elections. See Me. Const, art. IV,
pt. 3, § 17(2).
With the challenged portions of the Implementation Act
suspended, the provisions of law that are pertinent to the
primary elections are:
• The preexisting and unamended portions of the
• The provisions put in place by the citizens'
enactment of the RCVA in 2016, and
• Those portions of the Implementation Act that are not
suspended by the people's veto.
On February 16, 2018, the Committee for Ranked-Choice Voting
and congressional and gubernatorial candidates Lucas St.
Clair, Jim Boyle, Mark Dion, Mark Eves, Sean Faircloth, Diane
Russell, Betsy Sweet, and Ben Chipman (collectively, the
Committee) filed a complaint in the Superior Court against
the Secretary of State seeking a declaratory judgment that
the Secretary of State is required to implement ranked-choice
voting in the primary elections. Comm. for Ranked-Choice
Voting v. Sec'y of State, AUGSC-CV-2018-24, at 9 n.4
(Me. Super. Ct, Kennebec Cty., Apr. 3, 2018). We understand
that the Secretary of State initially announced that his
office would implement ranked-choice voting for the
primary elections, with the initial result that the suit was
not aggressively pursued.
On March 29, 2018, the Secretary of State indicated that
there was a conflict between 21-A M.R.S §
1(27-C)-directing the use of ranked-choice voting in primary
elections-and 21-A M.R.S § 723-providing for plurality
winners in primary elections. Immediately after the Secretary
of State raised this issue, the Committee pressed its suit,
requesting a temporary restraining order "requiring the
Secretary of State to continue the implementation of
ranked-choice voting for the June 12, 2018 primary
election." Comm. for Ranked-Choice Voting,
AUGSC-CV-2018-24, at 9. The Senate did not move to intervene
in the litigation commenced by the Committee.
The court (Murphy, J.), recognizing the urgency of
the matter, conducted a hearing on the afternoon of March 29,
2018, and entered a thorough order dated April 3, 2018, to
which the parties agreed, addressing and resolving the
statutory conflict and requiring the Secretary of State to
"continue implementation of the system of ranked-choice
voting for the June 12, 2018 primary election in accordance
with 21-A M.R.S. § l(27-C) and 21-A M.R.S. §
723-A." Comm. for Ranked-Choice Voting,
AUGSC-CV-2018-24, at 13-14. No appeal from that order has
been taken, and the parties to that proceeding have indicated
that no appeal will be pursued.
On the same day that the Superior Court declared that
ranked-choice voting would be applicable to the primary
elections, the Maine Senate filed a five-count complaint
against the Secretary of State seeking declaratory and
injunctive relief to halt the implementation of ranked-choice
voting in the primary elections. The parties agreed to a
stipulated record, and, by order dated ...