The seven questions that stand between Maine and ranked-choice voting

Good morning from Augusta, where a lot of eyes are on the Maine Supreme Judicial Court and how it might rule on ranked-choice voting for the June 12 primary election.

Superior Court Justice Michaela Murphy pushed the case brought on behalf of the Senate by Senate President Mike Thibodeau to the high court Wednesday afternoon. Because of the quickly approaching election and and more quickly approaching deadlines to prepare ballots, this case is expected to move rapidly — if the justices agree to take it up at all.

If they do, they’ll consider seven questions, which you can see for yourself at that link and which we’ll summarize here. Many of the questions rely on 15 pages of stipulated facts, which attorneys on both sides of the case — plus intervenors from the Committee for Ranked Choice Voting — have agreed to as accurate.

  1. Has the Senate proven that the secretary of state’s office has the authority to implement ranked-choice voting for the primary with money it already has? Or does the separation of powers clause in the Maine Constitution or language in the 2017 biennial budget bill, which doesn’t reference ranked-choice voting, prevent that?
  2. Has the Senate proven that the secretary of state has no authority to order another entity, such as the Department of Corrections or private couriers, to retrieve and transport ballots and voting data from municipalities to Augusta for RCV tallying?
  3. Has the Senate proven that Maine law, including portions that a pending people’s veto attempt seeks to change, prohibits ranked-choice voting in the primary because of references to a win by “plurality” instead of “majority”?
  4. Has the Senate, which voted along largely party lines last week to file this suit, proven that it has legal standing in the matter?
  5. Has the Senate proven that this case is “justiciable under the political question doctrine”? (That’s legalese for, “Is the Maine Supreme Judicial Court the right forum for this decision?”)
  6. Has the Senate proven that its legal claims are “ripe for adjudication”? That basically means, do the current circumstances make this the right time for this legal challenge?
  7. Has the Senate identified a “cause of action” for its legal claims? In other words, do the facts support the Senate’s action against the secretary of state?

There are a variety of possible outcomes — undoubtedly more than we here at the Daily Brief understand and can list. But they include the court striking down the ranked-choice voting law, upholding it as written, flagging constitutional conflicts with specific elements of the law or refusing to rule on it. The latter option would leave in place Murphy’s previous order for the secretary of state’s office to move forward with implementation.

Asked by reporters Wednesday what that would mean, Senate attorney Tim Woodcock caused some chuckles when he said wryly “if I were the secretary of state, I would act as though it’s in place,” referring to Murphy’s order.

While this is all going on, Secretary of State Matt Dunlap’s office is working under the assumption that ranked-choice voting will be used for the primary. On Monday, his office provided fresh estimates regarding the costs involved to lawmakers on the Veterans and Legal Affairs Committee.

Dunlap wrote that with the election bearing down, instructions for voters will appear on the state’s website, but “we no longer expect to be able to undertake additional voter outreach efforts” that would have cost an estimated $50,000 this year. Supporters of ranked-choice voting are decrying the lack of a public education campaign, which they say could cause serious confusion at the voting booth. Opponents say the confusion is inherent in the law.

Those factors have reduced the secretary of state’s additional costs related to ranked-choice voting in the primary from about $140,000 to about $80,000 — which doesn’t include expenses that would accrue regardless of what voting method is used.

In light of the unsettled issue of having Department of Public Safety staff transport ballots, Dunlap wrote that he would consider hiring private couriers. He estimates that after the previously listed expenses, his office would have about $32,000 left — which should be enough to hire the couriers.

This sort of goes without saying but we’ll say it anyway: There are a ton of moving parts that are interconnected here and numerous entities fighting to have their opinions supported. Yeah, we’ll keep you posted.

Today in A-town

The calendars are full … and they will be until the Legislature leaves. The scheduled adjournment date is Wednesday and many feel like they won’t meet that deadline. Scheduled for possible votes on the House calendar are several bills, including proposals to prohibit female genital mutilation and ban conversion therapy. Up for potential votes in the Senate are several proposal, including one to allow certain people of any age to be prescribed the opioid overdose antidote naloxone.

Gov. Paul LePage has submitted a late bill on one of his latest pet causes — putting the minimum tobacco-buying age back at 18. Rep. Deb Sanderson, R-Chelsea, submitted a bill on LePage’s behalf that would undo the Legislature’s move last year to raise the age to 21 over the governor’s veto. LePage has often bemoaned that decision, citing it as a somewhat doctrinaire reason that the minimum age to buy naloxone should also be 21. Bills submitted this late in the legislative session aren’t going far with a Democratic majority.

A legislative committee may finish work on one of the last big unresolved issues of the session: Proficiency-based diplomas. Maine was an early adopter of proficiency-based learning and today’s ninth-graders are set to graduate under these standards, but the state has been considering changes that make it easier to graduate.

LePage and Rep. Phyllis Ginzler, R-Bridgton, have submitted bills to repeal the proficiency-based standards and Rep. Victoria Kornfield, D-Bangor, who co-chairs the education committee, has a proposal to delay implementation of the standards for one year. The committee will work on those proposals at a Thursday afternoon session.

Reading list

  • The bill allowing recreational pot sales will soon be en route to LePage. The Senate voted 24-10 Wednesday in favor of the omnibus bill, which previously garnered a 112-34 vote in the House. Those tallies are enough to override a veto if they hold. This comes after more than a year of deliberations on the issue at the State House and a failed attempt at setting up the sales and regulatory structure last year.
  • LePage has lashed out a bank for firing Waterville mayor Nick Isgro. In an email to its president, LePage wrote that Skowhegan Savings Bank has fallen prey to “leftist hate ideology” and that letting Isgro go “is a mistake you will likely come to regret.” Isgro is under fire for a Twitter comment he made disparaging one of the survivors of the school shooting in Parkland, Florida.
  • Plans to loosen restrictions on development in Maine’s Unorganized Territory face stiff opposition. As expected, conservation groups railed against proposed policy and zoning changes for the largely undeveloped state-controlled land during a Land Use Planning Commission meeting on Wednesday. A final commission vote is due in the fall.
  • New charges have been filed related to a January scuffle between leaders of the Penobscot Nation. Chief Kirk Francis and two of his sons allegedly fought with Robert Dana, who serves on the elected Tribal Council, at a Bangor bar on Jan. 13. Originally, only Dana was charged, but last week, new assault charges were filed against Francis and his sons. The four men have court dates in April and May to answer to the misdemeanor charges.
  • A family that runs a halal butchery in Troy says someone blasted their sign with a shotgun.It’s been scary,” said Kathryn Piper, who recently opened Five Pillars Butchery with her husband, Hussam “Sam” Al-Rawi. “It’s an attack on our home, it’s not just our business.” The Waldo County Sheriff’s Office continues to investigate the case.

Heeeeeere’s Danny

Can we all just stop and recognize for a minute that Maine has had its own late-night talk show in the style of David Letterman and Johnny Carson? I’m talking about The Nite Show and its host, Dan Cashman.

It started in Cashman’s parents basement a full 21 years (!) ago and has grown to being broadcast Saturday nights on stations in Bangor, Portland and Presque Isle. Cashman will celebrate the anniversary — and his fourth personal nomination for a New England Emmy Award in the program host category — this week.

YOU ARE INVITED and IT’S FREE. Click here to secure your tickets to Friday’s 6 p.m. taping at the Westbrook Performing Arts Center.

The guests include singer Paula Cole … ahem, make that PAULA FLIPPIN’ COLE (here’s your soundtrack) … and former Gov. John Baldacci. Years ago, Cashman worked in Baldacci’s communications office and among the things he learned was Baldacci’s favorite song, but he’s being mum about it — though it will be performed Friday by The Nite Show Band.

“What do YOU think it is?” asked Cashman in a tweet on Wednesday.

Hmmmm. Baldacci is a quirky enough guy to make us suspect it might be something totally unexpected, like this, but maybe that’s just our fantasy. Could it be something more tame and fit for a Democrat, such as this? Paula Cole is going to be there so maybe it’s this — though if that’s the case why would The Nite Show Band be performing it? This is tricky, but we’re putting our money (we don’t have any money) on this.

We’d like to be there to chat soundtracks with the former guv, but despite all his virtues, Cashman didn’t invite us to be on the show. Here is our soundtrack. — Christopher Cousins

Today’s Daily Brief was written by Christopher Cousins, Michael Shepherd and Robert Long. If you’re reading this on the BDN’s website or were forwarded it, click here to get Maine’s only newsletter on state politics via email on weekday mornings.

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Christopher Cousins

About Christopher Cousins

Christopher Cousins has worked as a journalist in Maine for more than 15 years and covered state government for numerous media organizations before joining the Bangor Daily News in 2009.