Republican congressman sues to stop vote count, cites made-up provision of the Constitution

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Rep. Bruce Poliquin (R-ME), who is currently in a tight reelection fight against Democrat Jared Golden, filed a federal lawsuit Tuesday that would effectively toss out over twenty thousand ballots if he prevails.

There’s just one problem. His primary legal argument rests on a provision of the Constitution that does not actually exist.

In 2016, Maine’s voters approved a ballot initiative that institutes ranked choice voting in that state. Under this system, voters are asked to rank the candidates for a particular office in order, from their most preferred candidate to their least preferred candidate. If no one candidate wins a majority, ballots cast for the least popular candidate are then redistributed to second-choice candidates. And this redistribution continues until someone emerges with a majority.

According to Poliquin’s lawsuit, which is captioned Baber v. Dunlap, the incumbent Republican currently leads with 46.3 percent of the vote. Thus, under the system most states use to determine who wins elections, Poliquin would have won. Under ranked choice voting, however, votes cast for third-party candidates Tiffany Bond and William Hoar must be redistributed. It is possible that once that redistribution happens, Golden will emerge as the winner.

Poliquin’s principal argument is that ranked choice voting “violates Art. I, § 2 of the United States Constitution” because that section of the Constitution “sets a plurality vote as the qualification for election to the U.S. House of Representatives.” But he’s just flat out wrong about this. There’s no language in Article I of the Constitution — or in any other provision of the Constitution — which even arguably forbids ranked choice voting.

To justify his claim, Poliquin points to Article I’s language stating that “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” A mere mortal would struggle in vain to find anything in this text that even plausibly supports Poliquin’s argument. But Poliquin’s lawyers managed to find a single sentence in a half-century-old federal court decision that, when taken out of context, can be read to support Poliquin’s claim.

The United States Court of Appeals for the Second Circuit’s 1970 decision in Phillips v. Rockefeller states that the constitutional language Poliquin relies on “has always been construed to mean that the candidate receiving the highest number of votes at the general election is elected, although his vote be only a plurality of all votes cast.” Without context, this language does seem to support Poliquin’s argument. But that argument evaporates if you read the entire decision in Phillips.

Phillips involved an unusual United States Senate race where Conservative Party candidate James Buckley defeated his Democratic and Republican rivals with only 39 percent of the vote. The Second Circuit held that the Constitution does not require victorious candidates to win a majority of the vote. Rather, the Constitution “permitted elections by a plurality.”

But Poliquin isn’t arguing that the Constitution permits states to use an electoral system where a plurality is enough to win. He’s arguing that the Constitution requires states to award victory to whoever receives a plurality. Nothing in Phillips supports this claim.

It’s also worth noting that the Second Circuit does not have jurisdiction over Maine. So even if Phillips did support Poliquin, it is not binding over the judges who will hear Poliquin’s case.

Legal doctrines aside, there’s another, even more compelling reason why Poliquin’s lawsuit should not prevail. Maine voters went to the polls last week believing that ranked choice voting was the law of their states. Many of Bond and Hoar’s voters likely cast ballots for a third-party candidate knowing that they could safely do so because those votes would be redistributed to either Poliquin or Golden.

Had those voters known that ranked choice voting could be tossed out by a judge, they would have voted differently.

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Reposted from Think Progress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

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