United States District Court, D. Maine
ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY
E. Walker, United States District Judge.
November 6, 2018, the State of Maine conducted an election
and presented voters with a ballot that asked them to rank
their choices for who should be the people's
representative for Maine's Second Congressional District.
The congressional election was subject to Maine's
Ranked-Choice Voting Act, 21 M.R.S. § 723-A. Defendant
Secretary of State Matthew Dunlap is invested with the duty
to “tabulate the election returns and submit the
tabulation to the Governor” no later than 20 days
following the election. 21-A M.R.S. § 722.
November 13, after Defendant Dunlap announced that no
contestant had received enough votes to achieve an outright
majority victory in Second Congressional District election,
and that the ballot counting process would continue as
outlined in section 723-A, Plaintiffs, Representative Bruce
Poliquin, et al.,  filed this civil action. In their
complaint, Plaintiffs maintain that Maine's experiment in
ranked-choice voting violates Article I, section 2 of the
United States Constitution, and deprives Plaintiffs of rights
secured to them under the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment, the First
Amendment, as applied to the State of Maine through
incorporation in the Fourteenth Amendment, and the Voting
Rights Act. (Complaint, passim.) They request the
Court declare that their rights have been violated, and they
further request injunctive relief that, in effect, requires
Defendant to certify Representative Poliquin to be the winner
of the election. (Id. at 24 - 25, prayer for
November 14, 2018, the Court conducted a hearing on
Plaintiffs' request for a temporary restraining order
(TRO). The Court heard argument from Plaintiffs, Defendant,
and Intervenors Tiffany Bond, et al. Plaintiffs argue they are entitled to
an order enjoining Defendant from finalizing the ballot count
under Maine's ranked-choice scheme, such that no final
tabulation of votes will occur until this Court is able to
rule on Plaintiffs' motion for preliminary injunction or
the merits of Plaintiffs' action.
reasons that follow, Plaintiffs' request for TRO is
denied. The case will proceed in the normal course.
not the first time a challenge has been raised concerning the
constitutionality of Maine's Ranked-Choice Voting Act
(“RCV Act”) when used for the selection of
Maine's congressional representatives. Due to the
emergency nature of the pending motion, the following
background statement is borrowed from this Court's prior
order in the matter of Maine Republican Party v.
Dunlap, No. 1:18-cv-179 (Levy, J., presiding).
[Prior to passage of the RCV Act], 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.” 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. But, if no candidate captures a majority of the first
choice votes, there is an instant run-off. The candidate with
the fewest first choice votes is eliminated [and potentially
all candidates for whom it is “mathematically
impossible to be elected” are also eliminated at the
same time], and all of the ballots that listed him or her [or
them] as the first choice candidate are counted for their
second choice candidate. The process repeats and eliminates
more [non-viable] candidates until one candidate receives a
majority [or plurality] of the votes [counted through the RCV
process]. [21-A M.R.S. § 723-A(2).]
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, 183 A.3d 749
(Me. 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, 183 A.3d at 751.
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, [expressly] 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.
Maine Republican Party v. Dunlap, 324 F.Supp.3d 202,
204-06 (D. Me. 2018) (footnote omitted).
Plaintiff Bruce Poliquin stands in a position unlike that of
his co-Plaintiffs, each of the Plaintiffs is similar in that
he or she indicated on the ballot that Bruce Poliquin is his
or her first round choice in the RCV contest. Each Plaintiff
also opted not to rank any other candidate. (Complaint
¶¶ 7 - 10.)
the calculation of the first round votes, the results
(unofficial) appear to be as follows:
130, 916 votes
128, 915 votes
16, 088 votes
6, 717 votes
(Complaint ¶ 37.)
these results, application of the RCV system could result in
a victory by either Representative Poliquin or Mr. Golden.
That victory, if certified, could be based on either a
majority or a plurality of the total votes casts. Neither
Plaintiffs nor Defendant has suggested that the outcome of
the RCV election is known at this time.
relief]is an extraordinary and drastic remedy that is never
awarded as of right.” Peoples Fed. Sav. Bank v.
People's United Bank, 672 F.3d 1, 8-9 (1st Cir.
2012). To determine whether to issue a temporary restraining
order, the Court applies the same four-factor analysis used
to evaluate a motion for preliminary injunction. Monga v.
Nat'l Endowment for Arts, 323 F.Supp.3d 75, 82 (D.
Me. 2018). Those factors are:
(1) the likelihood of success on the merits; (2) the
potential for irreparable harm [to the movant]; (3) the
balance of the relevant impositions, i.e., the hardship to
the nonmovant if enjoined as contrasted with the hardship to
the movant if no injunction issues; and (4) the effect (if
any) of the court's ruling on the public interest.
Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13,
17-18 (1st Cir. 2006) (quoting Bl(a)ck Tea Soc'y v.
City of Boston, 378 F.3d 8, 11 (1st Cir. 2004)). As the
party seeking injunctive relief, Plaintiffs bear the burden
of establishing that the factors weigh in their favor.
Id. at 18; Monga, 323 F.Supp.3d at 82.
generally understood that “[t]he sine qua non of this
four-part inquiry is likelihood of success on the merits,
” meaning that the Court should not address the
remaining factors if the movant makes a weak showing as to
the likelihood of success on the underlying claim(s).
Monga, 323 F.Supp.3d at 82 (citintg New Comm.
Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9
(1st Cir. 2002). In some contexts, however, and perhaps
particularly in the context of elections, other
considerations may have equal sway when it comes to
preliminary remedies. Benisek v. Lamone, 138 S.Ct.
1942, 1943-44 (2018) (per curiam) (“As a matter of
equitable discretion, a preliminary injunction does not
follow as a matter of course from a plaintiff's showing
of a likelihood of success on the merits.”). In ...