Baber v. Dunlap

          ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

          Lance E. Walker, United States District Judge.

         On 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.

         On 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., ^[1] 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 relief.)

         On 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.^[2] 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.

         For reasons that follow, Plaintiffs' request for TRO is denied. The case will proceed in the normal course.

         I

         This is 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).

         While 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.)

         Upon the calculation of the first round votes, the results (unofficial) appear to be as follows:

Bruce Poliquin	130, 916 votes	(46.3%)
Jared Golden	128, 915 votes	(45.6%)
Tiffany Bond	16, 088 votes	(5.7%)
William Hoar	6, 717 votes	(2.4%)

(Complaint ¶ 37.)

         Given 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.

         II

         “[Injunctive 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.

         It is 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 ...