United States District Court, D. Maine
ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION
JON D.
LEVY U.S. DISTRICT JUDGE.
Ranked-choice
voting is set to be employed in the Maine primary election on
June 12, 2018, following almost two years of legislative and
litigated battles between its proponents and detractors.
Against this backdrop, the Maine Republican
Party[1]filed this civil action on May 4, 2018, and
simultaneously moved for a preliminary injunction (ECF No. 3)
seeking to prevent the Defendant, Matthew Dunlap, Secretary
of State for the State of Maine (the
“Secretary”), from implementing ranked-choice
voting for the Party's June 12 primary. Also on May 4,
the Party adopted a rule requiring that its nominees for
elected office be selected using a simple plurality system.
In its verified complaint, the Party contends that
ranked-choice voting will unconstitutionally infringe on its
right to freedom of association guaranteed by the First
Amendment of the United States Constitution, as incorporated
against the State by the Fourteenth Amendment. For the
reasons discussed below, I deny the Motion for Preliminary
Injunction.
I.
BACKGROUND
“The
Ranked-Choice Voting Act” (the “RCV Act”)
is currently in effect for the June 12, 2018, primaries. L.D.
1557, §§ 1-6 (referred to the voters, 127th Legis.
2016) (effective Jan. 7, 2017) (codified at 21-A M.R.S.A.
§§ 1(27-C), 1(35-A), 601(2)(J), 722(1), 723-A
(2018)). Previously, Maine law required a single-choice
voting system in primary and general elections, in which
voters voted for a single candidate, and the candidate with
the most votes (but not necessarily a majority of votes) won.
See Opinion of the Justices, 162 A.3d 188, 197 (Me.
2017). That system is referred to by the parties as a
“plurality” system.
The RCV
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.” L.D. 1557, § 2 (codified at 21-A
M.R.S.A. § 1(35-A)). Under ranked-choice voting, the
first round proceeds much in the same way it did under the
plurality system: Each voter's first choice vote is
counted, and if any candidate captures an outright majority
of the first choice votes that candidate wins. See
ECF No. 1 at ¶ 10. But, if no candidate captures a
majority of the first choice votes, there is an instant
run-off. See Id. The candidate with the fewest first
choice votes is eliminated, and all of the ballots that
listed him or her as the first choice candidate are counted
for their second choice candidate. See Id. The
process repeats and eliminates more last place candidates
until one candidate receives a majority of the votes. See
id.
Only
voters enrolled in the Maine Republican Party will be
eligible to cast a vote in the Party's primary on June
12. See ECF No. 13 ¶ 7. Because the
ranked-choice voting process is triggered in races with more
than two candidates, only two of the upcoming contests in the
Republican primary-the contests for Governor of the State of
Maine and Representative to the Maine Legislature in House
District 75- will be subject to the ranked-choice voting
process during the June 2018 primary. See id.
Following
the adoption of the RCV Act by public referendum in 2016,
there were legislative efforts to repeal or delay its
implementation.[2] The RCV Act's complex post-adoption
legislative and judicial history is chronicled in two
opinions of the Maine Supreme Judicial Court related to it:
Opinion of the Justices, 162 A.3d 188 (Me. 2017) and
Maine Senate v. Secretary of State, --- A.3d ---,
2018 WL 1832874 (Me. April 17, 2018). And, as the Court
explained in Maine Senate: “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.” Maine
Senate, 2018 WL 1832874, at *1.[3]
In
Opinion of the Justices, the Supreme Judicial Court
determined that portions of the RCV Act violate several
provisions of the Maine Constitution (Art. IV, pt. 1, §
5, Art. IV, pt. 2, § 4, and Art. V, pt. 1, § 3),
which, the Court opined, require plurality voting in general
elections for Maine's State Senators and Representatives,
and for Maine's Governor. See 162 A.3d at
209-11. Accordingly, as of this decision, the ranked-choice
voting system is only employed in primary elections for these
offices.
As part
of its Party governance, the Maine Republican Party has
promulgated rules and bylaws. See ECF Nos. 11-1,
11-2. On May 4, 2018, the Maine Republican Party adopted
“Rule 16” at its 2018 biennial state convention.
ECF No. 1 at ¶ 27. The rule provides that “The
Maine Republican Party's nominees for elected office,
including United States Senator, United States
Representative, Governor of the State of Maine, State
Senator, and State Representative, shall be chosen by a
plurality of votes cast.” Id. at ¶ 29;
see also ECF No. 11-1 at 9. The Maine Republican
Party contends that the May 4 biennial convention was its
first opportunity to adopt a rule governing its nomination
process following the statewide adoption of ranked-choice
voting. ECF No. 1 at ¶ 28. The Maine Republican Party
acknowledges that it adopted Rule 16 so as to reject
ranked-choice voting as applied to its primary candidates.
Id. at ¶ 31.
The
June primary election is 14 days away and the Secretary has
taken steps to implement ranked-choice voting. See
ECF No. 1 at ¶ 21. At the end of March, the Secretary
promulgated proposed rules which will govern the
ranked-choice voting process. See Id. at ¶ 22.
In early May, the Secretary provided ranked-choice voting
training to approximately 275 local election officials to
prepare them for the June 12 primary. See ECF No. 13
at ¶ 16. He also distributed written memoranda
addressing election issues, including ranked-choice voting,
to election officials in all 500 of the State's voting
jurisdictions. See Id. Finally, the Secretary has
already printed ballots that include ranked-choice voting for
the Republican gubernatorial and House District 75 primary
races which include instructions to rank candidates in order
of preference. See Id. at ¶ 18. Ballots were
made available to uniformed service and overseas voters
beginning April 27. See Id. at ¶ 4.
II.
LEGAL ANALYSIS
The
Maine Republican Party seeks a preliminary injunction which,
if granted, would enjoin the Secretary from employing
ranked-choice voting in the June 12 primary, and would
require that all of the Republican party primary winners be
determined by plurality vote. “A preliminary injunction
is an ‘extraordinary and drastic remedy' that
‘is never awarded as of right.'” Voice of
the Arab World, Inc. v. MDTV Med. News Now, Inc., 645
F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren,
553 U.S. 674, 689-90 (2008)) (internal citations omitted). To
obtain a preliminary injunction, the moving party must
establish: “(1) a likelihood of success on the merits,
(2) a likelihood of irreparable harm absent interim relief,
(3) a balance of equities in [its] favor, and (4) service of
the public interest.” Arborjet, Inc. v. Rainbow
Treecare Sci. Advancements, Inc., 794 F.3d 168, 171 (1st
Cir. 2015). “The party seeking the preliminary
injunction bears the burden of establishing that these four
factors weigh in its favor.” Esso Standard Oil Co.
v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
However, “[t]he sine qua non of this four-part
inquiry is likelihood of success on the merits: if the moving
party cannot demonstrate that he is likely to succeed in his
quest, the remaining factors become matters of idle
curiosity.” New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (emphasis
added). I turn to consider the Maine Republican Party's
motion relative to the required four-part inquiry, focusing
primarily on the likelihood of success on the merits,
“the touchstone of the preliminary injunction
inquiry.” Maine Educ. Ass'n Benefits Trust v.
Cioppa, 695 F.3d 145, 152 (1st Cir. 2012).
A.
Likelihood of Success on the Merits
The
Maine Republican Party argues that the RCV Act violates its
right of association guaranteed by the First and Fourteenth
Amendments because it imposes ranked-choice voting in the
Party's primary elections despite the Party's policy,
expressed in the newly adopted Rule 16, to select its
candidates by plurality voting. This challenge requires the
Court to explore the relationship between a political
party's constitutional right of free association and a
state's constitutionally recognized authority to sponsor
and regulate elections.
“The
freedom to associate with others for the advancement of
political beliefs and ideas is a form of ‘orderly group
activity' protected by the First and Fourteenth
Amendments, and ‘[t]he right to associate with the
political party of one's choice is an integral part of
this basic constitutional freedom.'” Cool Moose
Party v. Rhode Island, 183 F.3d 80, 82 (1st Cir. 1999)
(quoting Kusper v. Pontikes, 414 U.S. 51, 56-57
(1973)). What is more, the Supreme Court has repeatedly
“affirm[ed] the special place the First Amendment
reserves for, and the special protection it accords, the
process by which a political party ‘select[s] a
standard bearer who best represents the party's
ideologies and preferences.'” Cal. Democratic
Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Eu
v. San Francisco Cty. Democratic Central Comm., 489 U.S.
214, 224 (1989)). Choosing nominees is vitally important to
political parties because “[t]hat process often
determines the party's positions on the most significant
public policy issues of the day, and even when those
positions are predetermined it is the nominee who becomes the
party's ambassador to the general electorate in winning
it over to the party's views.” Id. at 575.
Yet,
“as a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accompany the
democratic processes.” Storer v. Brown, 415
U.S. 724, 730 (1974). The Constitution explicitly requires
such oversight as it relates to federal offices, mandating in
Article I, § 4, that “[t]he Times, Places and
Manner of holding Elections . . . shall be prescribed in each
State by the Legislature thereof, ” U.S. Const. Art. I,
§ 4, cl. 1, and the Supreme Court has recognized the
states' roles in structuring primaries. See
Jones, 530 U.S. at 572. The Maine Constitution has a
corresponding provision, Article 9, § 12, which
establishes the State's role in “prescrib[ing] the
manner in which the votes shall be received, counted, and the
result of the election declared” for all State and
national elections. Accordingly, a political party's
control over its primaries is far from unbounded. Instead,
when a party avails itself of a state-administered election,
it compromises some of its self-governance in exchange for
access to the state apparatus:
A political party has a First Amendment right to . . . choose
a candidate-selection process that will in its view produce
the nominee who best represents its political platform. These
rights are circumscribed, however, when the State gives the
party a role in the election process. . . Then . . . the
State acquires a legitimate governmental interest in ensuring
the fairness of the party's nominating process, enabling
it to prescribe what that process must be.
N.Y. State Bd. of Elections v. López Torres,
552 U.S. 196, 202-03 (2008) (internal ...