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.


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

Union Matters

Federal Minimum Wage Reaches Disappointing Milestone

By Kathleen Mackey
USW Intern

A disgraceful milestone occurred last Sunday, June 16.

That date officially marked the longest period that the United States has gone without increasing federal the minimum wage.

That means Congress has denied raises for a decade to 1.8 million American workers, that is, those workers who earn $7.25 an hour or less. These 1.8 million Americans have watched in frustration as Congress not only denied them wages increases, but used their tax dollars to raise Congressional pay. They continued to watch in disappointment as the Trump administration failed to keep its promise that the 2017 tax cut law would increase every worker’s pay by $4,000 per year.

More than 12 years ago, in May 2007, Congress passed legislation to raise the minimum wage to $7.25 per hour. It took effect two years later. Congress has failed to act since then, so it has, in effect, now imposed a decade-long wage freeze on the nation’s lowest income workers.

To combat this unjust situation, minimum wage workers could rally and call their lawmakers to demand action, but they’re typically working more than one job just to get by, so few have the energy or patience.

The Economic Policy Institute points out in a recent report on the federal minimum wage that as the cost of living rose over the past 10 years, Congress’ inaction cut the take-home pay of working families.  

At the current dismal rate, full-time workers receiving minimum wage earn $15,080 a year. It was virtually impossible to scrape by on $15,080 a decade ago, let alone support a family. But with the cost of living having risen 18% over that time, the situation now is far worse for the working poor. The current federal minimum wage is not a living wage. And no full-time worker should live in poverty.

While ignoring the needs of low-income workers, members of Congress, who taxpayers pay at least $174,000 a year, are scheduled to receive an automatic $4,500 cost-of-living raise this year. Congress increased its own pay from $169,300 to $174,000 in 2009, in the middle of the Great Recession when low income people across the country were out of work and losing their homes. While Congress has frozen its own pay since then, that’s little consolation to minimum wage workers who take home less than a tenth of Congressional salaries.

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