A federal judge said Wednesday he would try to issue an order Thursday on whether counting of ranked-choice votes in Maine’s 2nd Congressional District election would continue or be halted while the constitutionality of the process is decided.
Ballot counting by state election officials will likely be finished by Thursday, said Kristen Muszynski, a spokeswoman for Secretary of State Matt Dunlap. That could make a portion of the lawsuit moot, but the judge still could consider and rule on the underlying constitutional issues.
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Two-term U.S. Rep. Bruce Poliquin and three supporters sued Dunlap on Tuesday to stop the ranked-choice ballot count and declare him the winner in his re-election contest against Democrat Jared Golden.
U.S. District Judge Lance Walker presided over a 2½-hour hearing in federal court in Bangor on Wednesday morning in which lawyers representing Poliquin, two of his challengers — Golden and independent candidate Tiffany Bond — and Dunlap presented their legal arguments.
None of the candidates nor Dunlap attended the hearing.
Poliquin’s legal team also asked Walker for a temporary restraining order to force Dunlap to stop processing ranked-choice ballots. Despite the lawsuit, Dunlap, a Democrat, and his staff have continued processing ballots with the expectation that they would run a second count by the end of this week.
Based on unofficial totals, Poliquin received roughly 1,500 more first-choice votes than Golden on election night. Poliquin garnered 46.3 percent of the vote to Golden’s 45.6.
[Secretary of state wants to answer your questions about ranked-choice voting tonight]
On Tuesday, the Republican pointed to that margin to claim that he had won the election “fair and square.” But under the ranked-choice voting system endorsed twice by Maine voters since 2016, a second ballot tally must occur because no candidate won a majority. Poliquin argued that, although the U.S. Constitution does not specifically state that congressional elections should go to the candidate with the plurality of votes, precedent and his legal team’s interpretation of the Constitution require that he be declared the winner.
If Walker agrees with Poliquin, he would be the first federal judge in the nation to declare ranked-choice voting unconstitutional. Walker, who was a Superior Court justice in Maine, was nominated earlier this year by President Donald Trump. The U.S. Senate confirmed Walker last month.
State elections workers in Augusta since Friday have been preparing for a second ballot tally, with the lower ranked choices of independents Bond and Will Hoar — who combined to receive about 8 percent of all first-choice votes — being reallocated to the candidates listed as second or third choices on those ballots. Exit polling conducted on Election Day indicates that the majority of voters whose first choices were Bond or Hoar ranked Golden higher than Poliquin.
[What you need to know about the judge set to rule on ranked-choice voting]
Assistant Attorney General Phyllis Gardiner, who represents Dunlap, told Walker that stopping the ballot count would harm the integrity of the ranked-choice voting process, which Maine voters have endorsed.
“To interrupt that now would jeopardize the integrity of the election process and increase costs,” she said. “As a practical matter, there also are recounts for local [State House] elections that must be conducted.”
Gardiner said that a representative from the software firm that sold the state the program being used in the counting of ranked-choice votes is being paid by the day to assist the secretary of state’s office.
Attorneys for Golden argued that the U.S. Constitution leaves it up to the states to determine how to conduct elections. They also said that Poliquin should have brought his lawsuit after the primary in June, not after the general election in November.
[Read Poliquin’s lawsuit over ranked-choice voting]
“The courts have said you can’t sit on your rights,” Peter Brann of Lewiston told Walker. “In this case, the plaintiff sees the writing on the wall and comes in now saying that he wants to change the rules.”
Poliquin’s attorney, Lee Goodman of Washington, D.C., said that the case was not filed sooner because Poliquin and the other plaintiffs did not have standing to bring the case. It would have been a hypothetical case only, which courts have rejected in the past.
James Kilbreth of Portland said that it would be unprecedented for Walker to order the ballot count to end and for him to declare Poliquin the winner.
“There is a whole line of cases where judges have said it’s not appropriate for courts to intervene in state elections,” Golden’s attorney said.
Goodman said that the only constitutional way to solve the current problem would be to hold a run-off election as some states do rather than the so-called instant run-off that ranked-choice voting provides.
Attorneys for Bond early Wednesday morning filed a motion to intervene in the lawsuit as Golden’s legal team did Tuesday afternoon.
“Candidate Bond entered the race with the expectation that Maine’s ranked-choice voting procedures ensured that an independent candidate for federal office would never become a so-called ‘spoiler’ by diverting votes from either major party,” the motion said.
[Exit polling gives Golden an edge in 2nd District ranked-choice count. See each candidate’s road to victory.]
Attorneys for Golden filed a response to the lawsuit accusing Poliquin of attempting to stop the vote count because he knew he’d lose to Golden.
“The apparent basis of this ‘emergency’ is that plaintiff Bruce Poliquin, the incumbent congressman in Maine’s Second Congressional District, seemingly recognizes that — although the tabulation has not been completed — it is quite possible that he will not be elected under Maine law,” Golden’s lawyers wrote. “In response, plaintiffs ask that the rules of the election be changed after all of the voters have cast their ballots under those rules.”
Poliquin’s 25-page complaint argues that ranked-choice voting violates the U.S. Constitution and the Voting Rights Act of 1965. No court has specifically addressed those arguments, but last year, the Maine Supreme Judicial Court said the method ran afoul of the Maine Constitution as it pertained to statewide general elections, though it cleared the way for ranked-choice voting in the June primaries.
To issue an injunction and order ballot counting to stop, Walker must find the following: that the plaintiffs are likely to succeed on the merits of the case; that there is a likelihood the plaintiffs will suffer irreparable harm if the injunction is not granted; that the plaintiffs would be more harmed than the defendants if an order is issued; and that it is in the public interest to issue the order.
BDN writers Alex Acquisto and Michael Shepherd contributed to this report.