Even after Jared Golden was declared the winner of Maine’s Second Congressional District race, incumbent Bruce Poliquin proclaimed he would continue to fight the voting process in court.
Poliquin’s attorney asked for arguments to be heard soon so a decision can be reached on whether ranked choice voting is constitutional by mid-December 2018.
A look at the decision by federal judge Lance E. Walker denying Poliquin’s request to stop the vote from being counted suggests Poliquin has a very steep uphill climb.
Judge Walker, a LePage and Trump appointee and member of the conservative Federalist Society, shot down each of Poliquin’s constitutional arguments.
Most brutal perhaps was Walker’s response to “the remedy” sought by Poliquin — stopping the vote from being counted.
On p. 13 of the ruling, Walker wrote:
Simply stated, Plaintiffs have not provided the Court with any reasoned argumentation, supported by citation to authority, on the specific topic of why the remedy they propose is the remedy they are entitled to.
Check that out — according to Judge Walker, the Poliquin team asked to stop the vote count without “any reasoned argument, supported by citation to authority.”
More important for the next stage of the case, on the four constitutional claims made by Poliquin, Judge Walker was quite clear these were severely lacking.
First, to Poliquin’s claim that Article I, Section 2 of the U.S. Constitution requires election by plurality, the judge pointed it that it doesn’t say that and that the case Poliquin cited to support this doesn’t say it either.
In addition, Walker wrote, “In fact, it appears that both majority and plurality standards have historical antecedents in American politics” (p.7).
Second, Poliquin made two claims under the Fourteenth Amendment. Walker shot both down. The first concerned due process.
Poliquin’s brief claimed that under ranked choice voting, some voters lack their due process rights to cast ballots “effectively,” but Walker did not that credible.
Walker wrote, “for this Court to change the rules of the election, after the votes have been cast, could well offend due process” (p. 9).
Third, the other Fourteenth Amendment claim involved citizens rights to equal protection under the law, something Poliquin’s lawyers claimed was threatened.
Walker also said this argument was incorrect, writing, “[I]t appears that Maine’s RCV system is designed to enable every voter the opportunity to express a preference, and be counted, with respect to the candidates most likely to win the election. Plaintiffs, it seems have expressed their preference fully and equally on that matter. They have not demonstrated disparate treatment, let alone a discriminatory intent” (p. 10).
And the judge went further in countering the idea that voters would be treated more equally if the vote counting was halted, saying “there is a certain degree of irony because the remedy Plaintiffs seek could deprive 20,000 voters of what they understood to be a right to be counted with respect to the contest between Representative Poliquin and Mr. Golden.” (p. 11)
Fourth, Poliquin claimed ranked choice voting conflicted with the Voting Rights Act.
Judge Walker found that not credible, noting that the Voting Rights Act has to do with abridging voting rights “on account of race or color” and “Plaintiffs have not demonstrated that the RCV Act” or its implementation “are infected with discriminatory intent” (p. 12, 13).
The upshot: Per the judge, Poliquin’s constitutional claims in his legal filing for a temporary restraining order were not credible.
As Poliquin pursues this case, his lawyers will need to use evidence and rational arguments and cases.
New little phrases that seem message-tested for political campaigns simply won’t work in a courtroom.
Meanwhile, the House of Representatives will use its Article I, Section 5 powers to seat Jared Golden as the next representative for Maine-2.
Perhaps some federal court will limit ranked choice in the future. However, judging by its first test in the Poliquin-Golden contest, that seems unlikely.