A plurality is a plurality. Why Question 5 is definitely unconstitutional

Yes, we know that Question 5 — ranked choice voting — is a bad idea. It’s such a bad idea that the Bangor Daily News editorial board has stated its opposition, calling the rationale for the ballot question “unconvincing.”

I detailed the various problems with this question back in June, noting that it would, in fact, make political money darker and less accountable while doing nothing to impact “civility in politics.” I also noted that it would needlessly make voting more confusing, that it wouldn’t treat all votes equally, and of course that it was unconstitutional.

On that final point, I simply mentioned in passing that Attorney General Janet Mills had weighed in on the question, concluding that Question 5 violated the Maine Constitution’s current language, and that an amendment would be necessary to make the question legal.

Question 5 proponents, however, disagreed. They argue that the constitutional language that mentions “plurality” does not disqualify a ranked choice system, because all majorities, which such an election system would seek to create, are, in fact, pluralities.

That isn’t what the word plurality actually means, however. The Merriam-Webster dictionary defines a plurality, as it relates to elections, as “a number of votes that is more than the number of votes for any other candidate or party but that is not more than half of the total number of votes.”

In other words, pluralities are more votes than anyone else, but not enough to form a majority, which is more than half the votes.

George Danby | BDN

George Danby | BDN

Setting aside that obvious conflict, though, proponents are thinking about constitutionality backwards, anyway.

To them, a ranked choice voting system produces a victor that has achieved a majority, and a majority is at least a plurality, so it satisfies the requirement.

The language, however, is not about defining the upper limit of vote totals necessary to win. The language is intended to define the lower limit.

By that I mean that the Maine Constitution has set a bar that a candidate must cross to be considered a winner. That bar is lower than a majority. It’s a plurality.

Thus, once any candidate at any point has achieved a plurality, they have won the election.

It doesn’t matter whether some hypothetical second or third round has produced a majority of votes for any candidate. The first round in a ranked choice system will always produce (barring a tie) a plurality in favor of some candidate, and once that happens, the election is over, according to the constitution.

Article IV explicitly states, in relation to the House and Senate, that “such persons, as shall appear to be elected by a plurality of the votes” in their district shall be seated. If you receive a plurality of votes in your district, you have been elected.

Article V deals with the governor, and in this section the language is even clearer.

“The Secretary of State for the time being shall, on the first Wednesday after the first Tuesday of January then next, lay the lists returned to the secretary’s office before the Senate and House of Representatives to be by them examined, together with the ballots cast if they so elect, and they shall determine the number of votes duly cast for the office of Governor, and in case of a choice by plurality of all of the votes returned they shall declare and publish the same.”

“[I]n case of a choice by plurality,” the language reads.

So if you hold election, and you find that someone has achieved a plurality of votes for the office of governor, the results of that election are declared and published. Simple.

So, assuming Question 5 passes, the Maine Constitution would dictate that the first “round” of voting be tallied and a candidate be found to have won a plurality of votes. Once that happens, it is the Secretary of State’s duty to declare the winner and publish the results.

Any system that would seek to violate that very clear language, as Question 5 does by dismissing the plurality winner and attempting to engineer a majority winner through a convoluted system, is unconstitutional, and would be rightfully struck down.

If you are a supporter of Question 5 and that bothers you, worry not. You have the ability to amend that constitution if the current wording doesn’t suit you. Sadly that is a far harder task than passing a simple referendum paid for with special interest money, but it is necessary.

Best of luck.

Matthew Gagnon

About Matthew Gagnon

Matthew Gagnon, of Yarmouth, is the Chief Executive Officer of the Maine Heritage Policy Center, a free market policy think tank based in Portland. Prior to Maine Heritage, he served as a senior strategist for the Republican Governors Association in Washington, D.C. Originally from Hampden, he has been involved with Maine politics for more than a decade.