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Baber v. Dunlap

United States District Court, D. Maine

December 13, 2018

BRETT BABER, et al., Plaintiffs
MATTHEW DUNLAP, et al., Defendants



         Although the Court scheduled the hearing on December 5, 2018 to address Plaintiffs' Motion for Preliminary Injunction, the parties agreed that the question of injunctive relief should be consolidated with a final ruling on the merits of the action. Therefore, pursuant to Rule 65(a)(2), this Decision and Order will be accompanied by a final judgment in favor of Defendants.


         On November 6, 2018, the State of Maine held a general election at which races for federal office were governed by Maine's “Act to Establish Ranked-Choice Voting” (“RCV Act”).[1] This new manner of holding federal elections[2] is the product of a popular initiative, the history of which has been set forth previously and is not repeated here.[3] See, e.g., Maine Republican Party v. Dunlap, 324 F.Supp.3d 202, 204-06 (D. Me. 2018); Maine Senate v. Sec'y of State, 183 A.3d 749 (Me. 2018); Opinion of the Justices, 162 A.3d 188 (Me. 2017). Under the RCV system employed in Maine, when there are three or more candidates on the ballot, a candidate cannot be declared the winner of the election following tabulation of the votes without securing a majority of the ballots validly cast (i.e., excluding ballots invalidated due to overvotes (marking more than one candidate at the same level of ranking) or undervotes (failing to rank a candidate)). 21-A M.R.S. § 723-A.

         Plaintiffs, Brett Baber, Terry Hamm-Morris, Mary Hartt, and Bruce Poliquin, are residents of Maine's Second Congressional District. Plaintiffs participated in Maine's November 6, 2018, general election, at which each cast a vote for Bruce Poliquin to continue serving as Representative of the Second Congressional District in the United States House of Representatives. They maintain that the RCV Act is unconstitutional, both facially and as applied, and that it violates the Voting Rights Act. They maintain that the ballot form and instructions were too confusing and that the manner by which Defendant Dunlap tabulated the votes diluted the votes cast by Poliquin supporters and otherwise disenfranchised too many Maine voters to withstand scrutiny.

         The ballot for the Second District house race provided a choice among four candidates, a space to enter a write-in candidate, and a manner by which to rank the candidates, in the following form:

         (Matter Omitted)

         The ballot included the following instructions:

Instructions to Voters
. . .
To rank your candidate choices, fill in the oval:
• In the 1st column for your 1st choice candidate.
• In the 2nd column for your 2nd choice candidate, and so on.
Continue until you have ranked as many or as few candidates as you like.
Fill in no more than one oval for each candidate or column.
. . .

         Plaintiffs each filled in the circle for Bruce Poliquin shown in the first-choice column of the ballot. They did not fill in any other circles. Many other voters took the same approach. Some voters expressed equivalent support for Mr. Poliquin, but filled in the Poliquin circle in every column of the ballot. These voters, in other words, elected not to rank any candidate other than their preferred candidate. Other voters expressed their support for the other candidates in the same fashion. Many other voters chose to rank every candidate. In all, given five potential candidates and five columns, there were 120 different orders in which to rank the candidates, assuming one nominated a write-in and then went on to rank every candidate. There were several other ways in which one might respond to the ballot. For example, 5, 582 voters submitted their ballots without filling in any circles.

         Following the election, Defendant Dunlap oversaw a process in which his office gathered the ballots and tabulated the election results. On November 7, Defendant Dunlap announced that, based on the tabulation of all “first choice” votes, no contestant in the race achieved victory by a majority. The results of the initial tabulation were as follows:



Bruce Poliquin

134, 184

Jared Golden

132, 013

Tiffany Bond

16, 552

William Hoar

6, 875


289, 624[4]

         Pursuant to the RCV Act, because no candidate achieved a majority, Defendant Dunlap was required to conduct a further tabulation of the votes. Because it was mathematically impossible for Ms. Bond or Mr. Hoar to be elected, Defendant Dunlap performed a “batch elimination” of those candidates. Id. § 723-A(1)(A). He then reviewed the ballots in which the eliminated candidates were named as first choice, to determine if those ballots indicated a preference between the remaining two candidates, Mr. Poliquin and Mr. Golden. If so, then those ballots were redistributed accordingly.[5] On November 26, 2018, Defendant Dunlap published and certified a final tabulation of the votes. The results were as follows:




Jared Golden

142, 440


Bruce Poliquin

138, 931



281, 371[6]


         Because the Secretary of State certified Jared Golden as the winner of the RCV election, Plaintiff Bruce Poliquin requested a recount pursuant to 21-A M.R.S. § 737-A. The recount is under way at this time.

         The matter came on for hearing on December 5, 2018. Before hearing oral argument, the Court permitted Plaintiffs to call to the witness stand Dr. James G. Gimpel, Ph.D., a professor at the University of Maryland - College Park. Among other areas of expertise, Dr. Gimpel is well studied in the area of voter behavior. Dr. Gimpel testified that alternative systems for conducting elections, such as RCV, are generally considered by their proponents to be “systems to enhance participation.” According to Dr. Gimpel, interest in these systems is growing and, undoubtedly, will lead to more litigation like the litigation now before this Court. Dr. Gimpel has formed the opinion that RCV (or “instant run-off”) systems do not offer advantages over a plurality system, or over a majority system that resolves close elections by means of an actual run-off. The primary flaw he sees in RCV is that, unlike ordinary elections and ordinary run-offs, voters are required to make predictions about who will be left standing following an initial tabulation of the votes. While Dr. Gimpel concedes that many voters have sufficient information to make reliable predictions, he believes that a portion of the voting public has insufficient interest and information to make a meaningful assessment about likely outcomes. In his view, RCV is “flat out unfair to the uninformed voter.” He also maintains that the instructions Defendant Dunlap provided with the ballot leave such voters “clueless.”

         Dr. Gimpel contends that the data of voting behavior for this election (i.e., the ballots in this election) reinforce his opinion. He observes that thousands of voters cast ballots that were invalid, and that the most logical inference is that those voters guessed wrong due to an information deficit. Dr. Gimpel presumes that the voters in this category are predominantly independent voters, meaning they have no party affiliation. By his reasoning, independent voters such as Ms. Bond and Mr. Hoar's supporters are, on average, less informed on the issues.[7] According to Dr. Gimpel, this information deficit is demonstrated by the fact that many of the voters who identified Ms. Bond or Mr. Hoar as their first choice neglected to rank another candidate. In his view, this is proof that they believed Ms. Bond or Mr. Hoar would be victorious. He finds it hard to believe that voters would “drop out like this” if they were presented with a simple choice between a Republican candidate and a Democratic candidate.[8] On the other hand, he also testified that independent voters, on average, are not as likely to turn out for elections in the first place.[9]

         On cross examination, Dr. Gimpel testified that he did not interview or consider any interviews or studies of actual Maine voters, but that, remarkably, he would like to develop a survey to evaluate what voters were thinking. When asked to articulate why the ballot and the voting instructions were confusing, Dr. Gimpel testified that the worst thing about the ballot and instructions is what was omitted from the instructions. In particular, Dr. Gimpel suggested the instructions should have explained the various ways in which a vote could be invalidated. Dr. Gimpel was asked to evaluate Plaintiffs' contention that RCV is flawed because it fails to produce “monotonic” results.[10] Dr. Gimpel testified that he did not detect a monotonicity problem in this particular election. Finally, Dr. Gimpel opined that when one considers Plaintiffs individually, the reasonable conclusion is that they were not disenfranchised by RCV, but rather were full participants in the election.[11]


         A. Voting Rights Act

         In addition to their constitutional challenges to the RCV Act, Plaintiffs allege that the Act deprived them of rights protected under the Voting Rights Act. The Voting Rights Act subjects certain states to “preclearance” oversight when they enforce a new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” Presley v. Etowah Cty. Comm'n, 502 U.S. 491, 494 (1992) (quoting 52 U.S.C. § 10304). Additionally, individuals can bring suit to prevent “any State or political subdivision” from imposing any electoral practice “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) [concerning language minority groups].” 52 U.S.C. § 10301(a). “The Voting Rights Act ‘implemented Congress' firm intention to rid the country of racial discrimination in voting.'” Hathorn v. Lovorn, 457 U.S. 255, 268 (1982) (quoting Allen v. State Board of Elections, 393 U.S. 544, 548 (1969)). Plaintiffs have not alleged facts or otherwise shown that the Voting Rights Act has any application to this case.[12]

         B. U.S. Constitution, Article I

         Article I, section 2, clause 1 of the Constitution provides, in relevant part, as follows: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . .” Furthermore, Article I, section 4, clause 1, provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Concerning section 4, clause 1, the Supreme Court has explained:

It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. . . . All this is comprised in the subject of “times, places and manner of holding elections, ” and involves lawmaking in its essential features and most important aspect.

Smiley v. Holm, 285 U.S. 355, 366 (1932). See also Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 8 (2013).

         The First Article of the Constitution, in effect, assigns to the People of the several States the authority to choose their representatives to the national Congress, and directs that the States shall prescribe the times, places, and manner by which representative are chosen. Though Congress has the power to regulate state elections, “if there be no overruling action by the Congress” then suitable regulations “may be provided by the Legislature of the state upon the same subject.” Smiley, 285 U.S. at 367.[13] This is one example of the ingenious manner by which the framers divided sovereignty between the federal and state governments.

         Plaintiffs argue that the force of history calls for the Court to interpret Article I as requiring a plurality or “first-past-the-post” standard for deciding election results. There is no textual support for this argument and a great deal of historical support to undermine it. As a practical observation, it is curious that states which still utilize a majority standard have managed to escape constitutional scrutiny under Article I. The American experiment in republican-representative government neither began nor ended with ratification of the Constitution. The values that informed Article I not only inspired the Revolution, but also continued a purposeful evolution in our national experiment in representative government. It is clear from The Federalist Papers and other public debates leading up to the ratification of the Constitution that federalism was its intellectual ...

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