The ranked-choice ballots have been counted, but the fighting in the unprecedented race to represent Maine’s 2nd Congressional District may not be over.

One day after Democrat Jared Golden surged from behind to win the ranked-choice vote in the district, Republican Rep. Bruce Poliquin and his advisers weren’t saying whether they would request a recount in the race.

Golden, a state lawmaker from Lewiston and Marine Corps veteran, had 2,905 more votes than Poliquin following the nation’s first ranked-choice tabulation for a congressional race Thursday. Voters who initially supported two independents in the race, Tiffany Bond and William Hoar, tipped Golden over the top after the ranked-choice software considered their second- and third-choice preferences.

Poliquin’s campaign has vowed to continue its legal challenge of the ranked-choice system in federal court. But before that case is heard – likely in early December – the campaign also could request an official recount of the ballots. A complicated set of newly adopted election rules gives Poliquin five business days to request a recount from the Secretary of State’s Office.

Neither Poliquin’s campaign spokesman, Brendan Conley, nor campaign adviser Brent Littlefield responded to questions about a potential recount on Friday. Kristen Muszynski, a spokeswoman for Secretary of State Matt Dunlap, said she was not aware of any recount requests in the race Friday afternoon.

If one is requested by the deadline Thursday, however, it will be carried out in the same slow, methodical, hand-counting method used for any other recount – only with additional rounds because of ranked-choice voting.

“Obviously, it’s a lot more complicated and will take longer,” Muszynski said.

RECOUNT PROCESS

Endorsed by voters in November 2016 and reaffirmed in a June 2018 ballot initiative, ranked-choice voting allows individuals to list three or more candidates in a race by preference. If no candidate wins majority support on the first vote tally, the computer software eliminates candidates from the bottom up and reallocates their supporters’ votes based on how they ranked the remaining candidates.

The winner is the first candidate to surpass the 50 percent threshold among the remaining pool of valid ballots.

If a recount is requested, paper ballots will have to be collected from all the towns that scanned them on Election Day and sent electronic images of those ballots to Augusta to be processed for the ranked-choice vote. (Towns that still hand-count paper ballots already have sent them to the Secretary of State’s Office.)

Teams of attorneys and recount participants from the Golden and Poliquin campaigns would then hand-count ballots town-by-town, setting aside any “disputed ballots.” The ranked-choice election adds additional rounds of hand-counting and sorting.

Given that Golden’s victory margin was less than 3,000 votes, recount teams likely would devote considerable energy to the 5,883 “undervotes” and 426 “overvotes” recorded by the ballot-scanning machines.

An example of an “overvote” in a ranked-choice election is when a voter marks more than one “first choice” candidate. An “undervote” is when someone filled out a ballot but didn’t vote in the 2nd District race or skipped the first two rankings. Those ballots were still scanned for the ranked-choice vote because towns submitted all ballots to the Secretary of State for the tabulation.

“We were scanning all of the ballots that had the (2nd District) race on them … so if people decided not to vote in that race, or if they skipped two rankings, they would be listed as an undervote,” Muszynski said.

As of Friday, the Secretary of State had received requests for two recounts for legislative seats – House District 58 in Lewiston and House District 82 in Litchfield, Wells and Monmouth. Additionally, recounts have been requested in two county-level races.

LEGAL CHALLENGE

Immediately after the ranked-choice tabulations, Poliquin vowed to continue pushing his case in U.S. District Case in Bangor.

“It is now officially clear I won the constitutional ‘one-person, one-vote’ first-choice election on Election Day that has been used in Maine for more than one hundred years,” Poliquin said in a statement. “We will proceed with our constitutional concerns about the rank vote algorithm.”

Poliquin and three other plaintiffs – all 2nd District voters – argue in the lawsuit they filed Tuesday that the ranked-choice process violates the U.S. Constitution because the document “sets a plurality vote as the qualification for election” to Congress. They also argue the process prevents voters from casting an “effective” and informed vote because it is unclear who the final contenders would be in a ranked-choice tabulation.

However, the judge hearing the case, U.S. District Judge Lance Walker, seemed to poke major holes in some of Poliquin’s arguments when he rejected the campaign’s initial request to halt the ranked-choice vote.

“While I appreciate that there are limits on the means by which States can conduct elections of representatives to Congress … Plaintiffs have not demonstrated that it is more likely than not they will succeed in demonstrating that the United States Constitution prohibits an election process that involves more than one round of ballot counting, or a process designed to ensure that everyone who votes has the opportunity to express their support and be counted with respect to the presumptive front-runners in the election contest,” Walker wrote.

“In fact, it appears that both majority and plurality standards have historical antecedents in American politics,” Walker wrote. “In short, on the current showing, it appears equally plausible that … (the Constitution) affords the States sufficient leeway to experiment with the election process in the manner that is presently under consideration.”

Additionally, Walker noted that there was “a certain degree of irony” in the fact that Poliquin’s request to award the election victory to him based on the initial vote count would, in turn, be regarded as disenfranchising the thousands of voters for Bond and Hoar who also ranked their choices.

UNCHARTED TERRITORY

Dmitry Bam, a constitutional law professor at the University of Maine School of Law, said he was not surprised by Walker’s initial ruling because he did not view the complaint of having much legal merit. Bam also pointed out that the requested “remedy” of declaring Poliquin the winner would have “gutted the voting power” of everyone else who used the ranked-choice system.

Another option, if Walker agreed with Poliquin’s constitutional concerns, would be to order a new election – an outcome Bam also doubted.

“That may be plausible for something very small, but to have a reelection for a whole federal district, that is highly unlikely,” Bam said.

Instead, he wondered whether Poliquin would drop the case after his attorneys had thoroughly read and digested Walker’s ruling on the temporary restraining order.

“When you have a clear-cut decision and no indication that Judge Walker is waffling or unsure about the case, I think the preliminary ruling … is a pretty good indication of what the final outcome will be,” Bam said.

Craig Burnett, an assistant professor of political science at Hofstra University who studies ranked-choice voting, said the U.S. Constitution offer little guidance on elections. The document sets the minimum voting age at 18 and prohibits abridging the voting rights of people based on sex, race or other factors, but otherwise “there is very little guidance in who can vote and that is why we get all of these vagaries and (differences) in state election law.”

For instance, some but not all states allow convicted felons to vote. California uses a system in which candidates of all political parties are lumped together on the same primary ballot and the top-two vote recipients – regardless of party – advance to the general election.

Mississippi, meanwhile, is preparing to stage a runoff election to fill a U.S. Senate seat because neither of the two top finishers won with a majority.

Burnett said legal challenges of ranked-choice voting are typically filed by losing candidates after an election. In Maine’s case, Burnett said he doesn’t envision a federal judge ruling in Poliquin’s favor given the wide discretion on elections given to states in the Constitution.

But he and others will be watching closely.

“It’s usually not this high-profile of a contest,” Burnett said. “This is the first one for the House of Representatives, so this is uncharted territory for what the legal decision will be going forward. A lot of the decision-making (on ranked-choice voting) has been at the local level.”

Kevin Miller can be contacted at 791-6312 or at:

kmiller@mainetoday.com

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