2017	ME	100

OPINION	OF	THE	JUSTICES

OF	THE	SUPREME	JUDICIAL	COURT

GIVEN	UNDER	THE	PROVISIONS	OF

ARTICLE	VI,	SECTION	3	OF	THE	MAINE	CONSTITUTION

Docket	No.	OJ-17-1

______________________________

QUESTIONS	PROPOUNDED	BY

THE	MAINE	SENATE

IN	A	COMMUNICATION

DATED	FEBRUARY	2,	2017

ARGUED	APRIL	13,	2017

ANSWERED	MAY	23,	2017

______________________________
2

QUESTIONS	PROPOUNDED	BY	THE	MAINE	SENATE

IN	A	COMMUNICATION	DATED	FEBRUARY	2,	2017

WHEREAS, it	 appears	 to	 the	 Senate	 of	 the	 128th	 Legislature	 that	 the	

following	are	important	questions	of	law	and	that	this	is	a	solemn	occasion;	and	

WHEREAS, the	Constitution	of	Maine,	Article	VI,	Section	3	provides	for	

the	 Justices	 of	 the	 Supreme	 Judicial	 Court	 to	 render	 their	 opinion	 on	 such	

questions;	and	

WHEREAS, separate	provisions	of	the	Constitution	of	Maine,	adopted	at	

different	times,	provide	that	persons	elected	to	the	House	of	Representatives	

and	as	Governor	shall	be	elected	“by	a	plurality	of	all	votes	returned,” Me.	Const.	

art.	IV,	pt.	1,	§5	and	art.	V,	pt.	1,	§3,	and	those	elected	to	the	Senate	“by	a	plurality	

of	the	votes	in	each	senatorial	district,” Me.	Const.	art.	IV,	pt.	2,	§4;	and	

WHEREAS, Article	 IV,	Part	First,	Section	5	of	the	Constitution	of	Maine	

provides	 that	 in	 elections	 for the	 House	 of	 Representatives,	 “the	 election	

officials	 of	 the	 various	 towns	 and	 cities	 shall	 ...	 receive	 the	 votes	 of	 all	 the	

qualified	electors,	sort,	count	and	declare	them	in	open	meeting;	and	a	list	of	

the	persons	voted	for	shall	be	formed,	with	the	number	of	votes	for	each	person	

against	that	person’s	name.	...	Fair	copies	of	the	lists	of	votes	shall	be	attested	

by	the	municipal	officers	and	the	clerks	of	the	cities	and	towns	[who]	shall	cause	

the	same	 to	be	delivered	into	 the	office	of	 the	Secretary	of	State	 forthwith	...	

[and]	[t]he	Governor	shall	examine	the	returned	copies	of	such	lists	and	...	shall	

issue	 a	 summons	 to	 such	 persons	 as	 shall	 appear	 to	 have	 been	 elected	 by	 a	

plurality	of	all	votes	returned,	to	attend	and	take	their seats.”;	and	

WHEREAS, Article	IV,	Part	Second,	Section	3	of	the	Constitution	of	Maine	

provides	that	meetings	for	the	election	of	Senators	“shall	be	notified,	held	and	

regulated	and	the	votes	received,	sorted,	counted,	declared	and	recorded,	in	the	

same	manner	as	those	for	Representatives.	 Fair	copies	of	the	lists	of	votes	shall	

be	 attested	 by	 the	 clerks	 of	 the	 cities	 and	 towns	 or	 other	 duly	 authorized	

officials	and	sealed	up	in	open	meetings	and	...	delivered	into	the	office	of	the	

Secretary	 of	 State	forthwith.”;	 and	 Article	 IV,	 Part	 Second,	 Section	 4	 further	

provides	 that	“[t]he	Governor	shall	...	examine	 the	copies	of	such	lists,	and	...	

issue	a	summons	to	such	persons,	as	shall	appear	to	be	elected	by	a	plurality	of	
3

the	votes	in	each	senatorial	district,	 to	attend that	day	and	 take	 their	seats.”;	

and	

WHEREAS, Article	V,	Part	 First,	Section	 3	 of	 the	Constitution	 of	Maine	

provides	 that	 “meetings	 for	 election	 of	 Governor	 shall	 be	 notified,	 held	 and	

regulated	 and	 votes	 shall	 be	 received,	 sorted,	 counted	 and	 declared	 and	

recorded,	 in	 the	 same	 manner	 as	 those	 for	 Senators	 and	 Representatives.	

Copies	of	lists	of	votes	shall	be	sealed	and	returned	to	the	secretary’s	office	in	

the	same	manner	and	at	the	same	time	as	those	for	Senators.	 The	Secretary	of	

State	...	shall	...	lay	the	lists	returned	to	the	secretary’s	office	before	the	Senate	

and	 House	 of	 Representatives	 to	 be	 by	 them	 examined,	 ... 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.”;	and	

WHEREAS, Article	V,	Part	 First,	Section	 3	 of	 the	Constitution	of	Maine	

further	provides	that	“[i]f	there	shall	be	a	tie	between	the	2	persons	having	the	

largest	 number	 of	 votes	 for	Governor,	 the	House	 of	Representatives	and	 the	

Senate	meeting	in	joint	session,	and	each	member	of	said	bodies	having	a	single	

vote,	shall	elect	one	of	said	2	persons	having	so	received	an	equal	number	of	

votes	and	 the	person	so	elected	by	 the	Senate	and	House	of	Representatives	

shall	be	declared	the	Governor.”;	and	

WHEREAS, on	 November	 8,	 2016,	 the	 voters	 of	 the	 state	 approved	 a	

measure	referred	to	the	people	pursuant	to	Article	IV,	Part	Third,	Section	18	of	

the	Constitution	of	Maine,	entitled	An	Act	To	Establish	Ranked-choice	Voting,	

referred	 to	in	 this	 order	as	 “the	Act,” which	 creates	 new	methods	 of	 casting	

ballots	for	candidates,	counting	votes	and	determining	elections	for the	offices	

of	Governor,	State	Senator	and	State	Representative,	as	well	as	 the	offices	of	

United	States	Senator	and	Representative	to	Congress,	and	applies	to	elections	

held	on	or	after	January	1,	2018;	and	

WHEREAS, section	 2	 of	 the	Act	 defines	 “ranked-choice	 voting”	 as	 “the	

method	of	casting	and	tabulating	votes	in	which	voters	rank	candidates	in	order	

of	 preference,	 tabulation	 proceeds	 in	 sequential	 rounds	 in	 which	 last-place	

candidates	 are	 defeated	 and	 the	 candidate	 with	 the	 most	 votes	 in	 the	 final

round	is	elected”;	and	
4

WHEREAS, the	Act	provides	that	“[f]or	offices	elected	by	ranked-choice	

voting,	 the	 Secretary	 of	 State	 shall	 tabulate	 the	 votes	 according	 to	 the	

ranked-choice	 voting	method	described	in	 [the	Maine	Revised	Statutes,	Title	

21-A,]	section	723-A” as	enacted	by	section	5	of	the	Act;	and	

WHEREAS, the	method	of	ranked-choice	voting	described	in	the	Act	does	

not	allow	the	Secretary	of	State	to	aggregate	the	lists	of	votes	compiled	by	city	

and	 town	 officials	 and	 submitted	 to	 the	 Secretary	 as	 required	 by	 the	

Constitution	of	Maine	as	set	forth	above,	but	instead	necessitates	that	all	ballots	

or	 images	 of	 ballots	 cast	 by	 voters	 within	 the	 entire	 electoral	 district	 be	

delivered	 to	a	 central	location	in	 order	 for	 the	Secretary	 of	State	 to	 conduct	

multiple	 rounds	 of	 counting	 and	 redistributing	 voter	 preferences	 in	 each	

subsequent	round	of	counting	using	specially	designed	computer	software;	and	

WHEREAS, the	Attorney	General	issued	an	opinion	on	March	4,	2016,	to	

the	 effect	 that	 the	 system	 of	 ranked-choice	 voting	 established	 in	 the	 Act	

conflicts	 with	 provisions	 of	 Article	 IV,	 Part	 First,	 Section	 5;	 Article	 IV,	 Part	

Second,	Sections	3	and	4;	and	Article	V,	Part	First,	Section	3	of	the	Constitution	

of	Maine,	which	declare	that	ballots	are	to	be	counted	by	municipal	officials	and	

that	the	winner	of	each	electoral	race	is	the	candidate	who	received	a	plurality	

of	 the	 votes	 cast	 and	 counted	 at	 the	 municipal	 level,	 and	 further	 that	 the	

ranked-choice	method	of	resolving	a	 tie	vote	in	a	race	 for	Governor	conflicts	

with	Article	V,	Part	First,	Section	3;	and	

WHEREAS, the	 Act	 appears	 to	 conflict	 with	 the	 Constitution	 of	 Maine	

inasmuch	as	it	would	not	recognize	a	person	obtaining	a	plurality	of	the	votes	

counted	 and	 declared	 by	 city	 and	 town	 officials	 as	 having	 prevailed	 in	 the	

election;	 would	 fundamentally	 change	 the	 role	 of	 city	 and	 town	 officials	 in	

sorting,	 counting,	 declaring	 and	 recording	 votes	 and	 would	 transfer	 those	

duties	to	the	Secretary	of	State;	and	would	eliminate	the	role	of	the	House	of	

Representatives	and	the	Senate	in	resolving	tie	votes	for	the	office	of	Governor;	

and	

WHEREAS, the	Act’s	provision	for	resolving	tie	votes	for	Governor	by	lot	

conflicts	with	duties	that	the	Constitution	of	Maine	imposes	on	Representatives	

and	Senators	under	such	circumstances	pursuant	to	Article	V,	Part	First,	Section	

3 and,	therefore,	would	require	them	to	violate	their	oath	of	office	pursuant	to	

Article	IX,	Section	1	of	the	Constitution	of	Maine;	and	
5

WHEREAS, if	 the	 Act	 were	 applied	 to	 elections	 in	 2018	 without	

resolution	 of	 the	 constitutional	 questions	 presented	 here,	 a	 candidate	 for	

Representative,	Senate	or	Governor	who	gained	a	plurality	of	the	votes	counted	

by	 city	 and	 town	 officials	 but	 failed	 to	 prevail	 in	 the	 subsequent	 round	 or	

rounds	counted	centrally	by	 the	Secretary	of	State	pursuant	 to	 the	Act	could	

challenge	 that	 candidate’s	 declared	 loss	 as	 violative	 of	 the	 plurality	 vote	

requirement	 in	 the	 Constitution	 of	 Maine	 for	 the	 position	 sought	 by	 that	

candidate,	and	thereby	place	the	validity	of	the	election	into	question	and	delay	

the	seating	of	a	Representative,	Senator	or	Governor;	and	

WHEREAS, failing	to	address	important	and	unresolved	questions	of	law	

about	 the	 constitutionality	 of	 ranked-choice	 voting	 before	 the	 end	 of	 the	

current	legislative	session	would	create	uncertainty	over	 the	outcome	of	any	

future election	contests	involving	more	than	2	candidates;	and	

WHEREAS,	 the	 Senate	 requests	 guidance	 from	 the	 Justices	 as	 to	 the	

constitutionality	 of	 the	 Act	 so	 that	 it	 may	 determine,	 during	 the	 current	

legislative	 session,	 whether	 it	 is	 necessary	 to	 propose	 constitutional	

amendments	for	submission	to	the	voters	for	approval	in	November	2017,	in	

order	to	implement	ranked-choice	voting	for	elections	held	on	or	after	January	

1,	2018,	as	the	Act	requires;	and	

WHEREAS, the	128th	Legislature	also	must	determine	during	the	current	

legislative	 session	 whether	 to	 authorize	 and	 appropriate	 in	 excess	 of	

$1,500,000	 in	 the	 biennial	 budget	 for	 the	 period	 beginning	 July	 1,	 2017	 to	

implement	 the	Act,	including	 funds	at	a	minimum	 for	new	 voting	equipment	

and	computer	software,	staff	positions,	ballot	printing	and	transportation	and	

storage	of	ballots	for	counting	in	a	central	location;	and	

WHEREAS, it	 is	 vital	 that	 the	 Senate	 be	 informed	 during	 the	 current	

legislative	 session	 as	 to	 the	 opinions	 of	 the	 Justices	 on	 the	 questions	

propounded	in	this	order;	now,	therefore,	be	it	

ORDERED, that,	in	accordance	with	the	provisions	of	the	Constitution	of	

Maine,	 the	 Senate	 respectfully	 requests	 the	 Justices	 of	 the	 Supreme	 Judicial	

Court	to	give	the	Senate	their	opinion	on	the	following	questions	of	law:	
6

Question	1.	 Does	the	Act’s	requirement	that	the	Secretary	of	State	count	

the	 votes	 centrally	 in	 multiple	 rounds	 conflict	 with	 the	 provisions	 of	 the	

Constitution	of	Maine	that	require	that	the	city	and	town	officials	sort,	count,	

declare	 and	 record	 the	 votes	 in	 elections	 for	 Representative,	 Senator	 and	

Governor	as	provided	in	the	Constitution	of	Maine,	Article	IV,	Part	First,	Section	

5,	Article	IV,	Part	Second,	Section	3	and	Article	V,	Part	First,	Section	3?	

Question	2.	 Does	the	method	of	ranked-choice	voting	established	by	the	

Act	in	elections	for	Representative,	Senator	and	Governor	violate	the	provisions	

of	 the	 Constitution	 of	Maine,	 Article	 IV,	 Part	 First,	 Section	 5,	 Article	 IV,	 Part	

Second,	Sections	3	and	4	and	Article	V,	Part	First,	Section	3,	respectively,	which	

declare	that	the	person	elected	shall	be	the	candidate	who	receives	a	plurality	

of	all	the	votes	counted	and	declared	by	city	and	town	officials	as	recorded	on	

lists	returned	to	the	Secretary	of	State?	

Question	3.	Does	the	requirement	in	the	Act	that	a	tie	between	candidates	

for	Governor	in	the	final	round	of	counting	be	decided	by	lot	conflict	with	the	

provisions	of	the	Constitution	of	Maine,	Article	V,	Part	First,	Section	3	relating	

to	resolution	of	a	 tie	vote	 for	Governor	by	 the	House	of	Representatives	and	

Senate?	

SPONSORED	BY:					/s/	Michael	Thibodeau

Senate	President

128th Maine	Legislature
7

OPINION	OF	THE	JUSTICES

To	the	Maine	Senate:

[¶1]	 	 By	 communication	 dated	 February	 2,	 2017,	 the	 Maine	 Senate

propounded	three	Questions	to	us	as	individual	Justices	of	the	Maine	Supreme	

Judicial	Court	pursuant	article	VI,	section	3	of	 the	Maine	Constitution,	which	

states,	“The	Justices	of	the	Supreme	Judicial	Court	shall	be	obliged	to	give	their	

opinion	upon	important	questions	 of	law,	and	upon	 solemn	 occasions,	when	

required	by	the	Governor,	Senate	or	House	of	Representatives.”	 Me.	Const.	art.	

VI,	§	3;	see Opinion	of	the	Justices,	682 A.2d	661,	663	(Me.	1996).

[¶2]		It	is	our	honor	to	provide	the	following	response.		All	seven	Justices	

agree	with	the	Opinion	set	forth	herein.

I.		BACKGROUND

[¶3]		The	Senate	seeks	our	opinions	regarding	the	constitutionality	of	a	

statute	recently	enacted	through	citizen	initiative,	L.D.	1557,	§§	1-6	(referred	

to	 the	 voters, 127th	 Legis.	 2016) (effective	 Jan.	 7,	 2017)	 (to	 be	 codified	 at	

21-A M.R.S.	 §§ 1(27-C),	 1(35-A),	 601(2)(J),	 722(1),	 723-A (2017)),1 which	

established	ranked-choice	voting	for	elections	of	United	States	Senators,	United	

States	 Representatives,	 Governor,	 State	 Senators,	 State	 Representatives,	 and	

																																								 							 1		L.D.	1557	(referred	to	the	voters,	127th	Legis.	2016)	(effective	Jan.	7,	2017)	(to	be	codified	at	

21-A	M.R.S.	§§	1(27-C),	1(35-A)	601(2)(J),	722(1),	723-A	(2017))	is	reproduced	in	Appendix	B.	
8

federal	and	 state	 primaries	in	Maine	 occurring	 on	 or	after	 January	 1,	 2018.2		

21-A	M.R.S.	§	1(27-C);	L.D.	1557,	§§	1, 6.

[¶4]		The	 term	 “ranked-choice	voting”	is	defined	by	 the	newly	enacted	

Act	 as	 “the	 method of	 casting	 and	 tabulating	 votes	 in	 which	 voters	 rank	

candidates	in	order	of	preference,	tabulation	proceeds	in	sequential	rounds	in	

which	last-place	candidates	are	defeated	and	the	candidate	with	the	most	votes	

in	the	final	round	is	elected.”		21-A M.R.S. §	1(35-A);	L.D.	1557,	§	2.		As	defined,	

ranked-choice	 voting	 contrasts	 with	 the	 statutory	 description	 of	 Maine’s	

previous	 system	 of	 single-choice	 voting,	 by	 which	 voters	 voted	 for	 a	 single	

candidate	for	each	seat.		See 21-A	M.R.S.	§§	691,	692,	723 (2016). The	crux	of	

the	Senate’s	inquiry	is	whether	this	statutorily	enacted	system	of	ranked-choice	

voting	violates the	 provisions	 of	 the	Maine	 Constitution	 by	which	 successful	

candidates	for	office	are	identified	“by	a	plurality” of	all	votes	returned, namely,

Me.	Const.	art.	 IV,	pt.	1,	§	5 (regarding	the	election	of	State	Representatives);	

Me.	 Const.	 art.	 IV,	 pt.	 2,	 §	 4	 (regarding	 the	 election	 of	 State	 Senators);	 and	

Me. Const.	art.	V,	pt.	1,	§	3	(regarding	the	election	of	the	Governor).3

																																								 							 2	 	As	enacted,	L.D.	 1557 was	entitled,	 “An	Act	 to	 Establish	Ranked-choice	Voting.”	 For	ease of	

discussion,	we	refer	to	it	as	the	“Ranked-Choice	Voting	Act”	or	“the	Act.”	

3		The	Senate	asks	two	additional	questions—whether	the	Ranked-Choice	Voting	Act	violates	those	

portions	 of	 the	 Maine	 Constitution	 that	 dictate	 how	 votes	 are	 sorted,	 counted,	 and	 declared	 in	

municipalities,	see Me.	Const.	art.	IV,	pt.	1,	§	5;	Me.	Const.	art.	IV,	pt.	2,	§	3;	Me.	Const.	art.	V,	pt.	1,	§	3,	

and	 whether	 the	 Act	 violates	 the	 constitutional	 provision	 regarding	 a	 tie	 vote	 in	 a	 gubernatorial	
9

[¶5]	 	 We	 invited	 briefs	 from	 the	 Maine	 Senate	 and	 other	 interested	

persons	 and	 entities.	 We	 received	 briefs	 from	 the	 Maine	 Senate;	 the	 Maine	

House	Republican	Caucus	and	the	Maine	Heritage	Policy	Center;	the	Secretary	

of	State;	the	Attorney	General;	Maine	Senators	Troy	Jackson,	Mark	Dion,	Shenna	

Bellows,	Ben	Chipman,	Justin	Chenette,	Rebecca	Millett,	David	Miramant,	and	

Eloise	 Vitelli;	 the	 League	 of	Women	 Voters	 of	 Maine	 and	 Maine	 Citizens	 for	

Clean	 Elections;	 Marshall	 J.	 Tinkle,	 Esq.;	 the	 Committee	 for	 Ranked	 Choice	

Voting;	 FairVote;	 Dmitry	 Bam;	 and	 Larry	 Diamond.4	 	We	 conducted	 an	Oral	

Argument	on	the	Questions	on	April	13,	2017.

II.		DISCUSSION

[¶6]		We	begin our	consideration	of	the	Questions	presented by	noting	

that	only the	question	of	the	constitutionality	of	the	Ranked-Choice	Voting	Act

is	 presented	 to	 us.	 	 The	 public policy	 of	 ranked-choice	 voting,	 including	the	

benefits	 and	 detriments	 of	 such	 a	 voting	 procedure,	 is	 squarely	 outside	 our	

consideration.		Such	matters	instead	rest	in	the	capable	hands	of	the	voters	of	

the	State	of	Maine,	the	Maine	Legislature,	and	the	Governor.		See City	of	Belfast	

v.	 Belfast	 Water	 Co.,	 115	 Me.	 234,	 241,	 98	 A.	 738	 (1916);	 Moulton	 v.	 Scully,	

																																								 							 election,	see Me.	 Const.	 art.	 V,	 pt.	 1,	 §	 3.	 Those	 questions	 are	 secondary	 to	 the	 primary	 issue	 of	

plurality.

4		Appendix	A	contains	a	summary	of	the	positions	taken	in	each	brief.
10

111 Me.	428,	448,	89	A.	944	 (1914) (“The	design	was	 to	have	 the	legislative	

power	not	final	but	subject	to	the	will	of	the	people	.	.	.	.”).

[¶7]		We	are	asked	 to	opine	on	whether	 the	Ranked-Choice	Voting	Act

violates	 the	 Maine	 Constitution	 in	 any	 of	 three	 respects.	 It	 is	 the	 Maine	

Constitution	that	provides	for	the	citizen-initiative	process by	which	the	people	

vote	 directly	 on	 proposed	 legislation.	 	 Me.	 Const.	 art.	 IV,	 pt.	 3,	 §	 18; see

21-A M.R.S.	 §§	 901-906	 (2016);	 League	 of	 Women	 Voters	 v.	 Sec’y	 of	 State,	

683 A.2d	769,	771	(Me.	1996).	It	important	to	note	that	the	Maine	Constitution,	

citizen-enacted	legislation,	and	legislatively	enacted	legislation	reflect	the	will	

of	the	people.		See	Moulton,	111	Me.	at	463,	89 A.	944	(Haley,	J.,	dissenting).		The	

object	must	always	be	to	“ascertain	the	will	of	the	people.”		Lewis	v.	Webb,	3	Me.	

326,	337	(1825).

[¶8]	 	 Nonetheless,	 when	 a	 statute—including one	 enacted	 by	 citizen	

initiative—conflicts	with	a	constitutional	provision,	the	Constitution prevails.	

Marbury	v.	Madison,	5	U.S.	(1	Cranch)	137,	177-80	(1803).		It	is “supposed	to	be	

essential	to	all	written	constitutions,	that	a	law	repugnant	to	the	constitution	is	

void.”	 	Id. at	 180; see	 League	 of	Women	 Voters,	 683 A.2d	 at	 771-72;	Allen	 v.	

Inhabitants	of	Jay,	60 Me.	124,	138	(1872) (“A statute	in	direct	violation	of	the	

essential	principles	of	justice,	is	not	the	law	of	the	land within	the	meaning	of	
11

the	[C]onstitution.” (quotation	marks	omitted)).		Thus,	as	is	required,	the	result	

of	any	opinion	or	declaration	that	a	statute	is	unconstitutional	is	the	elevation	

of the	 will	 of	 the	 people	 as	 expressed	 in	 the	 Constitution above	 that	 as	

expressed	in	a	statute.		See	Marbury,	5	U.S.	(1	Cranch)	at	180.

A. Authority	to	Issue	Advisory	Opinions

[¶9]		Advisory Opinions	represent	the	advice of	the	individual	 Justices.	

Me. Const.	art.	VI,	 §	3;	Opinion	of	 the	Justices,	682	A.2d	at	663.		They are	not	

binding	on	the	Justices	individually	or	together	in	any	subsequent	case	that	may	

come	before	the	Law	Court and	they	have	no	precedential	value	or	conclusive	

effect.	 	 Opinion	 of	 the	 Justices,	 682 A.2d	 at 663;	 see	 Opinion	 of	 the	 Justices,	

281 A.2d	 321,	 322	 (Me.	 1971) (“The	 rule	 of	 stare	 decisis	 does	 not	 apply	 to	

Justices’	 Constitutional	 Advisory	 Opinions.”).	 	 An	 Advisory	 Opinion	 of	 the	

Justices,	however, provides guidance	and	legal	analysis	that	is	“required”	by	the	

other	Branches	for	their	use	in decision-making	and	action.		Me.	Const.	art.	VI,	

§ 3.		Such	advice	must	be	cautiously	and	sparingly	given.	

[¶10]		Before the	Justices	may	consider	the	Questions	propounded	by	the	

Senate,	“it	is	first	their	constitutional	duty	to	investigate	with	care	whether	in	

the	 given	 situation	 the	 Constitution	 denies	 them	 the	 right	 to	 answer	 the	

questions	propounded.”		Opinion	of	the	Justices,	396	A.2d	219,	223	(Me.	1979).		
12

This	threshold	inquiry is	critical	to the	interactions	of	the	three	Branches,	both	

because	the	Justices	are	constrained	by	strict	constitutional	limitations	on	their	

authority	 to	 issue	 Advisory	 Opinions	 and	 because	 any	 violation	 of	 those	

constraints	implicates	our	government’s	tripartite structure.	 To	assure	clarity,	

we	address	these	concepts	in	detail.

1. Foundational	Limitations	on	Judicial	Intervention

[¶11]		In	 the	normal	course,	 the	 Justices	of	 the	Supreme	 Judicial	Court	

exercise	 great	 care	 to	 avoid	 issuing Advisory	 Opinions	 based	 on	 two	

“overriding	principles	binding	upon	the	judiciary”—the	separation	of	powers	

doctrine	and	 the	 requirement	of	a	live	case	or	controversy.		Id.		Because	 the	

authority	of	the	Justices to	author	constitutionally	allowed	Advisory	Opinions	

is	a	narrow	exception	to	those	principles,	we	think	it	necessary	to	address	them	

here.

a. Separation	of	Powers	

[¶12]		The	Maine	Constitution	divides	the	“powers	of	government”	into	

three	Branches:	the	Legislative	Branch,	the	Executive	Branch,	and	the	Judicial	

Branch.		Me.	Const.	art.	III,	§ 1.5 “No	person	or	persons,	belonging	to	one	of	these	

																																								 							 5	 	Although,	 at	 the	 time	 of	 the	 enactment	 of	 the	 Maine	 Constitution,	 the	 three	Branches	 were	

referred	to	as	“departments,”	Me.	Const.	art.	III,	§	1	(1820),	that	nomenclature	has	evolved	over	time,	

in	great	part	because	the	Executive	Branch	itself	is	now	divided	into	many	“departments.”		To	avoid	
13

[Branches],	shall	exercise	any	of	the	powers	properly	belonging	to	either	of	the	

others,	except	in	the	cases	herein	expressly	directed	or	permitted.”		Me.	Const.	

art.	III,	§	2;	see	Opinion	of	the	Justices,	2002	ME	169,	¶	4,	815	A.2d	791.		

[¶13]		The	 separation	 of	powers	doctrine	 thereby	prohibits	any	 of	 the	

three	Branches	of	government	from	exercising	the	powers	relegated	to	either	

of	the	other	two	Branches.		Me.	Const.	art.	III,	§	2;	see	Bar	Harbor	Banking	& Tr.

Co.	v.	Alexander,	411	A.2d	74,	77	(Me.	1980) (“The	constitutionally	mandated	

separation	 of	 powers	 forbids	 precipitous	 injunctive	 interference	 with	 the	

legitimate,	ongoing	[function	of	another	Branch of	government].”).		Separation	

of	powers	is	similarly	reflected	in	the	United	States	Constitution.		See	Marbury,	

5 U.S.	(1 Cranch)	at	176-80;	see	also O’Donoghue	v.	United	States,	289 U.S.	516,	

530	 (1933);	 Myers	 v.	 United	 States,	 272	 U.S. 52,	 293	 (1926) (Brandeis,	 J.,	

dissenting)	(stating	that	the	object	of	the	separation	of	powers	doctrine	is,	“by	

means	of	the	inevitable	friction	incident	to	the	distribution	of	the	governmental	

powers	among	three	departments,	to	save	the	people	from	autocracy”).		

[¶14]	 	 Thus,	 in	 the	 absence	 of	 direct	 constitutional	 authorization	 to	

provide	Advisory	Opinions,	the	doctrine	of	separation	of	powers	dictates that	

“we	decline	to	answer	questions	presented	by	the	Governor	or	the	Legislature	

																																								 							 confusion, we	 refer	 to	 the	 executive,	 legislative,	 and	 judicial	 components	 of	 government	 as	

“Branches.”
14

regarding	their	respective	authority.”		Opinion	of	the	Justices,	2002 ME	169,	¶	4,	

815	A.2d	791.		

b. Case	or	Controversy	Requirement

[¶15]	 	 The	 second	 important	 principle	 limiting	 the	 authority	 of	 the	

Justices	is	the	“universal	rule	[that]	judicial	power	may	be	exercised	only	in	an	

actual	 case	 and controversy.”	 	 Opinion	 of	 the	 Justices,	 396	 A.2d	 at	 223.		

“A justiciable	case	or	controversy	involves	a	claim	of	present	and	fixed	rights,	

as	 opposed	 to	 hypothetical	 or	 future	 rights,	 asserted	 by	 one	 party	 against	

another	 who	 has	 an	 interest	 in	 contesting	 the	 claim.”	 	 Hathaway	 v.	 City	 of	

Portland,	2004	ME	47,	¶ 11,	845	A.2d	1168 (quotation	marks	omitted).		Again,	

in	the	absence	of	constitutional	authorization,	the	requirement	of	an	actual	case	

or	controversy	prohibits	the	issuance	of	an	Advisory	Opinion.6

2. Express	Constitutional	Prerequisites	to	Advisory	Opinions

[¶16]		Providing	a	narrow	exception	to	these	core	concepts	attendant	to	

the	exercise	of	judicial	power,	the	Maine	Constitution,	in	article	VI,	section	3,	

carves	 out	 a	 single	 exception	 by	 which	 each	Justice	 of	 the	 Supreme	 Judicial	

																																								 							 6		For	example,	the	Questions	propounded	here	are distinguished	from	those	in	League	of	Women	

Voters	v.	Secretary	of	State,	683	A.2d	769,	770-71 (Me.	1996),	which	regarded	 the	enacted	citizen	

initiative	that	imposed	term	limits	on	the	members	of	the	Maine	Legislature. In	that	case,	unlike	here,	

the	Court	reviewed	the	constitutionality	of	the	term	limits	statute	in	the	context	of	an	actual	case	or	

controversy	rather	than	a	request	for	an	Advisory	Opinion.		Id.
15

Court may	offer	a	judicial	opinion in	the	absence	of	a	live	case	or	controversy,	

and	in	tension	with	the	usual	application	of	the	separation	of	powers	doctrine:	

“The	Justices	of	the	Supreme	Judicial	Court	shall	be	obliged	to	give	their	opinion	

upon	important	questions	of	law,	and	upon	solemn	occasions,	when	required	

by	the	Governor,	Senate	or	House	of	Representatives.”7		Me.	Const.	art.	VI,	§	3;

see Opinion	of	the	Justices,	355	A.2d	341,	388 (Me.	1976); Opinion	of	the	Justices,	

396	A.2d	at	223.		It	is,	therefore,	“manifestly	inappropriate	for	the	Justices	of	

the	Supreme	Judicial	Court	to	express	an	opinion	on	an	important	question	of	

law,	with	 the	single	exception	plainly	stated	in	Article	VI,	Section	3,	until	 the	

issue	arises	in	the	course	of	an	adversary	proceeding.”		Opinion	of	the	Justices,	

355 A.2d	at	388.

[¶17]	 	Because	 an	 Advisory	 Opinion	 represents	 a	 unique	 exception	 to	

such	 foundational	 principles,	 the	 Maine	 Constitution	 carefully	 cabins	 the	

authority of	the	Justices	to	provide	an	Advisory	Opinion.		The	tension	between	

the	 constitutionally	 required	 separation	 of	 powers	 and	 the	 constitutionally	

provided	authority	of	the	Justices	of	the	Maine	Supreme	Judicial	Court	to	provide

																																								 							 7		Only	a	handful	of	states	have	constitutions	that	expressly	provide	or	allow	for	the	highest	court	

of	the	state	to	issue	Advisory	Opinions.		See,	e.g., Colo.	Const.	art.	VI,	§	3;	Fla.	Const.	art.	 IV,	§	1(c);	

Mass.	Const.	pt.	2,	ch.	III,	art.	II;	Mich.	Const.	art.	III,	§	8;	N.H.	Const.	pt.	2,	art.	74;	R.I.	Const.	art.	X,	§	3;	

S.D. Const.	art.	V,	§	5;	cf. U.S.	Const.	art.	III,	§	2,	cl.	1 (limiting	federal	court	jurisdiction	to	cases	and	

controversies).	 	 In	 some	 other	 states,	 Advisory	 Opinions	 may	 be	 issued	 pursuant	 to	 statute	 or	

precedent.		See,	e.g., Ala.	Code	§	12-2-10	(LEXIS	through	May	16,	2017);	Del.	Code	Ann.	tit.	10,	§ 141(a)	

(LEXIS	through	81	Del.	Laws,	ch.	15);	Mosely	v.	State,	908	N.E.2d	599,	603	(Ind.	2009).
16

official	but	nonbinding	advice	to	the	other	Branches	is	addressed	through	the	

balance	 articulated in	 the	 requirements	 (1)	 setting	 out	 who	 may	 seek	 the	

Justices’	 advice,	(2)	inquiring	whether	 that	 advice	is	 sought	 as	 to	important	

questions	of	law, and	(3)	providing	that	a	solemn	occasion must	exist for	the	

Justices’	provision	of	such	advice.		Me.	Const.	art.	VI,	§	3.		These boundaries	on	

the	authority	of	the	Justices	“must	be	strictly	observed.”		Opinion	of	the	Justices,	

437 A.2d	597,	610	(Me. 1981) (quotation	marks	omitted).		

[¶18]		We address	in	turn	these	express	constitutional	prerequisites	to	

our	authority	to	provide	an	Advisory	Opinion	to	another	Branch of	government	

in	the	absence	of	a	case	or	controversy.

a. Standing

[¶19]	 	 By	 express	 constitutional	 mandate,	 the	 Justices	 may	 consider	

issuing	an	Advisory	Opinion	only	when	requested	by	the	Governor,	or	by	the	

Maine	Senate	or	the	Maine	House	of	Representatives.		Me. Const.	art.	VI,	§	3;	see	

Opinion	of	the	Justices,	2015	ME	27,	¶	17,	112	A.3d	926.

b. Important	Question	of	Law

[¶20]		Perhaps	because	the	Governor	and	the	Houses	of	the	Legislature	

are	unlikely	 to	seek	an	Advisory	Opinion	of	 the Justices	in	 the	absence	of	an	

important	question	of	law, there	is	little	jurisprudence	directly	setting	out	the	
17

parameters	of	those	occasions.	 We	interpret	the	“important	questions of	law”	

requirement	 to	 mean	 that	 questions	 that	 are	 of	 little	 or	 no	 consequence,	

esoteric,	 or	 purely	 academic	 are not	 properly	 considered	 in	 an	 Advisory	

Opinion.		Me.	Const.	art.	VI	§	3;	see	Opinion	of	the	Justices,	571 A.2d	805,	810	

(Me.	 1989).	 	 Given	 the	 nature	 of	 the	 Questions	 before	 us	 today, we	 do	 not	

further	 address	 the	 jurisprudential	 descriptions	 of	 this	 prerequisite	 to	

exercising	our	Advisory	Opinion	authority.

c. Solemn	Occasion

[¶21]		Determining the	existence	of	a	solemn	occasion	has,	in	contrast,	

presented	a	 substantial	 challenge	 for	 the	 Justices	 throughout	 the	 years.	 	Not	

surprisingly,	 during	 the	almost	 two	 hundred	 years	 since	 the	adoption	 of	 the	

Maine	Constitution,	the	interpretation	of	the	phrase	“solemn	occasions”	within	

the	meaning	of	article	VI,	section	3,	has	evolved.		Over	time,	however,	several	

guideposts	 have	 emerged	 to	 inform the	 Justices’	 exercise	 of	 their	

constitutionally	 provided	 authority	 to	 offer	 non-binding	 advice.	 	 These	

guideposts are	 judge-made	 parameters,	 not	 articulated	 in	 the	 Constitution.	

They	each	spring	from	a	judicial	effort	to	assure	that	we	do	not	overstep	our	

bounds	with	an	unconstitutional	foray	into	the	clearly	defined territory	of	the	

Legislative	or	Executive	Branch.		
18

i. Unusual	Exigency

[¶22]	 	We	 have	 determined	 that	 a	 solemn	 occasion is	 one	 that	 “arises	

when	 questions	 are	 of	 a	 serious	 and	 immediate	 nature,	 and	 the	 situation	

presents	an	unusual	exigency.”8		There	must,	in	other	words,	be	some	urgency	

that	requires	the	Justices	to	provide	advice	to	the	other	Branches.		This	aspect	

of	the	solemn	occasion	analysis	is	similar	to	the	next	element—that	the	issue	

be	 one	 of	 live	 gravity—but	 is	 subtly	 distinct	 in	 that	 it	 also	 addresses	 the	

requirement	 of	 a	 serious	 and	 unusual	 situation	 and	 infuses	 an	 element	 of	

temporal	consideration.		

ii. Live	Gravity

[¶23]		The	question	presented	must	be	one	of	“live	gravity,”	that	is,	one	

“of	 instant,	 not	 past	 nor	 future, concern.”9	 	 The	 live	 gravity	 requirement	

precludes	 us	 from	 providing	 advice	 that	 “would	 relate	 to	 matters	 merely	

tentative,	hypothetical	and	abstract.”10		The	questioning	Branch must	be	faced	

with	the	current	need	to	act.11		For	example,	we	declined	to	answer	questions	

propounded	by	the	House	regarding	the	Governor’s	authority	to	override	a	veto	

																																								 							 8		Opinion	of	the	Justices,	2015	ME	107,	¶	5,	123 A.3d	494 (quotation	marks	omitted).

9		Opinion	of	the	Justices,	229 A.2d	829,	831	(Me. 1967) (quotation	marks	omitted).

10		Opinion	of	the	Justices,	371	A.2d	616,	620	(Me.	1977) (quotation	marks	omitted).

11		Opinion	of	the	Justices,	229	A.2d	at	830.
19

when	the	Governor	had	not	yet	purported	to	veto	any	legislation.12		Similarly,	

we	 have	 declined	 to	 answer	 when	 the	 questioning	 body	 adjourned	 and	

therefore	 was	 unable	 to	 receive	 the	 answer13 and	 when	 the	 proposed	

legislation	at	issue	had	already	expired	and	was	therefore	no	longer	before	the	

Legislature	 for	 consideration.

14 To	 do	 so	 “would	 be	 an	 unwarrantable	

interference	 with	 the	 duties	 and	 functions	 of	 such	 future	 [Legislature	 or	

Governor].”15

iii. A	Branch	Must	Ask	for	Itself

[¶24]		A questioning	entity	may	not	seek an	Advisory	Opinion	relating	to	

the	 power,	 duty,	 or	 authority	 of	 another	Branch of	 government	 because	 the	

body	presenting	the	question	has	no	ability	to	act	in	response	to	the	Advisory	

Opinion.16		We	will	therefore decline	to	answer	a	question	when	one	Branch of	

																																								 							 12		Id. at	829-30	(“The	form	in	which	the	question	is	presented	to	us	does	not	indicate	that	your	

Honorable	body	is	currently	faced	with	the	question.”);	see	Opinion	of	the	Justices,	2015	ME	27,	¶	26,	

112 A.3d	926 (declining	to	answer a	question	regarding	an	event that	had	not	yet	occurred).

13		Opinion	of	the	Justices,	281 A.2d	321,	324	(Me.	1971);	see	Opinion	of	the	Justices,	484	A.2d	999,	

1002	(Me.	1984).

14		Opinion	of	the	Justices,	674	A.2d	501,	502	(Me.	1996).

15		Answer	of	the	Justices,	95 Me.	564,	571,	51	A.	224	(1901).

16		Opinion	of	the	Justices,	709	A.2d	1183, 1185-86 (Me.	1997).
20

government	 seeks	 our	 advice	 regarding	 the	 authority	 of	 another	 Branch to	

undertake	an	action.17

iv. Not	Tentative,	Hypothetical,	or	Remote

[¶25]	 	 Questions	 that	 “relate	 to	 matters	 merely	 tentative	 [or]	

hypothetical”	present	no	solemn	occasion.18		Similarly,	the	question	cannot	be	

based	on	a	contingency	“so	extremely	remote	that	it	need	hardly	be	taken	into	

consideration.”19		

v. Specific	and	Limited

[¶26]		The	questions	presented	must	be	“sufficiently	precise	that	we	can	

determine	 the	 exact	 nature	 of	 the	 inquiry.”20	 	The	 Justices	 must	 understand	

from	 the	question	presented	what	provisions	 of	law	 they	are	being	asked	 to	

examine.

21		Abstract	or	generalized	questions	about	the	constitutionality	of	a	

provision	 pursuant to	 the	 Maine	 or	 United	 States	 Constitution	 are not	

																																								 							 17		Opinion	of	the	Justices,	460	A.2d	1341, 1349	(Me	1982)	(“We	must	decline	to	answer	Questions	

6	and	7.		In	both,	the	Governor	inquires	as	to	the	powers	of	the	Legislature.”);	Opinion	of	the	Justices,	

396	A.2d	219, 224 (Me.	1979).

18		Opinion	of	the	Justices,	371	A.2d	at	620 (quotation	marks	omitted).

19		Answer	of	the	Justices,	95	Me.	at	571-72,	51	A.	224.

20		Opinion	of	the	Justices,	2002	ME	169,	¶	6,	815	A.2d	791	(quotation	marks	omitted).

21 Opinion	of	the	Justices,	460	A.2d	at	1345-46.
21

appropriate	 subjects for	 an	 Advisory	 Opinion.22	 	 The	 question	 also	 must	 be	

based	on	clear	and	compelling	facts	as	established	only	in	the	order	or	record	

provided	by	the	questioning	body;	otherwise,	the	question	implicates	too	broad	

a	 range	 of	 potential	 factual	 and	 legal	 possibilities.23	 	 Justices	 will	 decline to	

answer	questions	when their	resolution	involves	the	determination	of	facts	and	

the	application	of	other provisions	of	law	beyond	those	that	have	generated	the	

inquiry.

24

vi. Not	Overly	Complex

[¶27]	 	 Similarly,	 the	 Justices do not	 answer	 questions	 that	 are	 too	

complex to	be	answered	in	the	absence	of	a	case	or	controversy.		In	one	matter,	

for	 example,	 the Justices opined,	“The	 questions	 presented	 here	 require	 an	

analysis	 of	 intersecting	 laws,	 constitutional	 provisions,	 and	 facts.	 	 The	

complexity	 of	 the	 varying	 considerations	 renders	 it	 impossible	 for	 us	 to	 be	

confident	of	the	law	and	other	circumstances	to	such	a	degree	as	to	leave	no	

room	for	reasonable	doubt.”25		

																																								 							 22		Opinion	of	the	Justices,	2012	ME	49,	¶	9,	40	A.3d	930;	Opinion	of	the	Justices,	371	A.2d	at	620;	

Opinion	of	the	Justices,	155	Me.	141,	150,	152	A.2d	173	(1959).

23		Opinion	of	the	Justices,	2015	ME	107,	¶¶ 5-6,	123	A.3d	494;	Opinion	of	the	Justices,	2012	ME	49,	

¶¶ 5,	9	&	n.1,	40	A.3d	930.

24		Opinion	of	the	Justices,	460	A.2d	at	1345.

25		Opinion	of	the	Justices,	2004	ME	54,	¶	41,	850	A.2d	1145 (quotation	marks	omitted).
22

vii. Not	Subject	to	the	Tug	of	Litigation

[¶28]		The	question	presented	must	be	a	matter	applicable	to	the	general	

public	rather	than	private	parties;	it	is	“inexpedient	to	prejudice	the	question	

before	any	occasion	has	arisen	calling	for	its	legal	determination.”26		Similarly,	

the	question	presents	no	solemn	occasion	when	it	inquires	whether	 the Law

Court	will	overrule	a	prior	decision.27

viii. Doubt	as	to	the	Body’s	Authority	

[¶29]	 	 A	 question	 presents	 a	 solemn	 occasion	 when	 the	 questioning	

body—the	House,	the	Senate,	or	the	Governor—“has	serious	doubts”	as	to	its	

own authority	 to	 take	 some	 action	 pursuant	 to	 the	 Maine	 Constitution	 or	

existing	 statutes.28	 	 Exemplifying	 this	 principle,	 we	 have	 provided	 Advisory	

Opinions when	 the	 House,	 Senate,	 or	 Governor	 seeks	 an	 opinion as	 to	 the	

constitutionality	of	legislation	currently	pending before	that	body	because,	in	

																																								 							 26		Answer	of	the	Justices, 85	Me.	545,	546,	27	A.	454	(1891);	see	Opinion	of	the	Justices,	396	A.2d	at	

225;	Answer of	the	Justices,	95	Me.	at	566,	569,	51	A.	224.

27		Opinion	of	the	Justices,	157	Me.	152,	157-61,	170	A.2d	652	(1961).

28		Opinion	of	the	Justices,	2012	ME	49,	¶	6,	40	A.3d	930;	see	Opinion	of	the	Justices,	2015 ME	107,	

¶ 8,	123	A.3d	494;	Opinion	of	the	Justices,	2015	ME	27,	¶	18,	112 A.3d	926;	Opinion	of	the	Justices,	

2002	ME	169,	¶	11,	815	A.2d	791;	Opinion	of	the	Justices,	709	A.2d	at	1185;	Answer	of	the	Justices,

95 Me.	at	566-67,	51	A.	224.
23

those	instances,	the	questioner	seeks	our	guidance	in	determining	its	authority	

to	approve	the	pending	bill.29

ix. Status	of	the	Law	in	Question

[¶30]	 	In	 combination,	 the	 requirements	 above	 often will	 preclude	 us	

from	 issuing	 an	 Advisory	 Opinion	 as	 to	 the	 constitutionality	 of	 an	 existing	

statute,	both	because	the	questioning	body	is	not	uncertain	about	its	authority

to	act	as	to	existing	law	and	because	existing	law	presents	nothing	pending	that	

requires	 immediate	 action.30	 	 In	 most	 instances,	 a	 challenge	 to	 the	

constitutionality	of	an	existing	law	will	be presented	in	the	traditional	context	

of	a	cause	of	action	in	a case	or	controversy	where	the	statute	has	been	applied	

to	a dispute	between	or	among	specific	parties.

																																								 							 29		See,	e.g.,	Opinion	of	the	Justices,	437	A.2d	597,	604-05	(Me.	1981) (“[The	bill]	has	therefore	not	

yet	become	law;	it	is	still	awaiting	 the	Governor’s	signature; and	whether	he	may	constitutionally	

sign	it	into	law	is	a	question	of	live	gravity on	which	he	may	require	the	Justices’	opinions.” (quotation	

marks	omitted));	see	also Opinion	of	 the	Justices,	560 A.2d	552,	555-56	 (Me.	1989);	Opinion	of	 the	

Justices,	501 A.2d	16,	16,	20	(Me.	1985);	Opinion	of	the	Justices,	152	Me.	449,	449,	453,	132	A.2d	440	

(1957).		Because	it	is	not	presented	in	this	matter,	we	need	not	address	the	concern	that	when	the	

questioner	 seeks	 an	 Advisory	 Opinion	 on	 the	 constitutionality	 of	 pending	 legislation in	 order	 to	

decide	whether	 to	act	 favorably	on	 the	legislation,	 the	questioner	is	not	actually	asking	about	 the	

body’s	authority,	but	is	asking	about	the	wisdom	of	a	particular	action.

30		See Opinion	of	the	Justices,	371	A.2d	at	620;	Opinion	of	the	Justices,	355 A.2d	341,	390 (Me.	1976);	

Opinion	of	the	Justices,	339	A.2d	483,	488	(Me.	1975) (declining	to	interpret	existing	law	because	the	

answer	 “would	not	in	any	way	affect	 the	power	of	 the	 [questioner]	 to	repeal	 these	sections,	or	 to	

amend	 them,	or	declare	 the	meaning	of	 them”	(quotation	marks	omitted));	Opinion	of	 the	Justices,	

153	Me.	216,	219-20,	136	A.2d	508	(1957);	Answers	of	the	Justices,	135	Me.	519,	519,	522,	191	A.	485	

(1936).
24

[¶31]		In	this	context,	we	have	also	noted	that	a	statute	could	be	amended	

before	a	case	or	controversy	presents	itself,	or	even	while	the	request	 for	an	

Advisory	Opinion	is	pending,	and	that	“[s]uch	an	amendment	would	have	the	

force	 of	 law,”	 unlike	 an	 Advisory	 Opinion.31	 	 Moreover,	 we	 act	 with	 caution	

because	 “an	 Advisory	 Opinion	 interpreting	 an	 existing	 statute,	 though	 not	

having	 the	 force	 of	 law,	 may	 jeopardize	 private	 rights	 and	 public	 interests	

created	by	such	statute.”32

B. Application	 of	 Limits	 on	 Advisory	 Opinion	 Authority	 to	 Questions	

Presented

[¶32]		With this	analytical	framework	in	mind,	we	examine	the	Questions	

presented	to	determine	whether	each	Question	originated	from	the	Senate,	the	

House,	 or	 the	 Governor	 and	 meets	 the	 criteria	 of	 presenting an	 important	

question	of	law	upon	a	solemn	occasion such	that	we	are	“required”	to	provide	

the	advice	sought	by	the	Senate.	Me. Const.	art.	VI,	§	3;	see Opinion	of	the	Justices,	

2015	ME	107,	¶	4,	123	A.3d	494 (requiring	an	analysis	of	“each	Question”).

																																								 							 31		See	Opinion	of	the	Justices,	396	A.2d	at	225.

32		Id.
25

1. Question	2:	Plurality	Vote

[¶33]	 	 Because	 it	 is	 at	 the	 heart	 of	 the	 Questions	 presented,	 we	 first	

consider	the	second	Question	propounded,	which	addresses	the	Constitution’s	

requirement	of	a	plurality	vote:

Question	 2:	 Does	 the	 method	 of	 ranked-choice	 voting	

established	by	the	Act	in	elections	for	Representative,	Senator	and	

Governor	 violate	 the	 provisions	 of	 the	 Constitution	 of	 Maine,	

Article	IV,	Part	First,	Section	5,	Article	IV,	Part	Second,	Sections	3	

and	4	and	Article	V,	Part	First,	Section	3,	respectively,	which	declare	

that	 the	 person	 elected	 shall	 be	 the	 candidate	 who	 receives	 a	

plurality	 of	 all	 the	 votes	 counted	 and	 declared	 by	 city	 and	 town	

officials	as	recorded	on	lists	returned	to	the	Secretary	of	State?

[¶34]		The	Ranked-Choice	Voting	Act provides	for	tabulation	in	rounds.		

21-A M.R.S.	 §§ 722(1),	 723-A(2);	 L.D.	 1557,	 §§ 4-5.	 	 If	 there	 are	 only	 two	

candidates,	 the	 candidate	 with	 the	 most	 votes	 wins and	 that	 candidate	 will	

necessarily	win	by	a	majority.		21-A M.R.S.	§	723-A(2)(A);	L.D.	1557,	 §	5.		 If,	

however,	 there	 are	 more	 than	 two	 candidates,	 upon	 completion	 of	 the	 first	

round	 of	 tabulation,	 and	 unless	 one	 candidate has	 received	 a	 mathematical	

majority	of	the	votes,	the	candidate	with	the	fewest	votes	is	eliminated	and	a	

new	 round	 begins	 in	 which	 all	 votes	 cast	 for	 the	 eliminated	 candidate	 are	

reviewed and	 redistributed—this	 time	 to	 account	 for	 those	 voters’	 secondplace	choices.		21-A	M.R.S.	 § 723-A(2)(B);	 L.D.	1557,	 §	5.		Successive	 rounds	

become	unnecessary	when	the	candidate	with	the	most	votes	has	a	majority	of	
26

votes or	all	ballots	have	been	exhausted.		21-A	M.R.S.	§	723-A(1)(G);	L.D.	1557,	

§	5.

[¶35]		The	Senate	asks	whether	the	Act—by	requiring	successive	rounds	

of	counting	even	after	one	candidate	has	received	a	plurality	of	the	votes and	

by	 eliminating	 candidates	 in	 successive	 rounds	 until	 only	 one	 candidate	

prevails—in	fact	violates	the	provisions	of	the	Maine	Constitution	that	require	

only	a	plurality. Pursuant	to	Me.	Const.	art.	IV,	pt. 1,	§	5,	the	election	of	State	

Representatives	is	accomplished	“by	a	plurality	of	all	votes	returned”;	pursuant	

to	Me.	Const.	art.	IV,	pt.	2,	§	4,	State	Senators	are	elected	by	“a	plurality	of	the	

votes	in	each	senatorial	district”;	and	pursuant	to	Me.	Const.	art.	V,	pt.	1,	§	3,	the	

Governor	is	elected	“by	plurality	of	all	of	the	votes	returned.”		Before	we	may	

consider	 these	 substantive	 questions,	 we	 apply	 the	 law	 that	 we	 have	 just	

described	regarding	the	constitutional	limitations	on our	authority	to	provide	

an	Advisory	Opinion.

a. Standing

[¶36]	 	 The	 Senate	 has presented	 the	 Questions to	 us.	 	 Therefore,	 the	

standing	requirement	of	the	Maine	Constitution	has	been	met with	regard to	

Question	2.		
27

b. Important	Question	of	Law

[¶37]		There	can	be	no	doubt	that	Question	2 addresses a	very	serious	

matter,	or	 that	 the	change	effectuated by	 the	citizen initiative	is	extensive	in	

enacting	a	new	and	comprehensively	different	method	of	voting	for	all	major	

State	 offices.	 	 Whether	 the	 Act	 conflicts	 with	 the	 constitutional	 “plurality”	

requirement	is	a	question	of	serious	consequence	for	the	people	of	this	State.	

[¶38]		The	potential	conflict	between	the	application	of	the	Act and	the	

language	 of	 the	Maine	Constitution	itself,	particularly	in	light	 of	 the	 relevant	

State	 and	 constitutional	 history,	 see	 infra ¶¶	 61-63,	 is	 an	 issue	 of	 first	

impression	that	goes	to	the	very	heart	of	our	form	of	government,	rooted	as	it	

is	in	the	means	by	which	the	people	may	elect	their	chosen	representatives.		See	

Opinion	of	the	Justices,	673 A.2d	693,	695	(Me.	1996).		Therefore,	we have no	

difficulty	in	agreeing	that	Question	2 presented	by	the	Senate	is	an	important	

question	 of	 law within	 the	 meaning	 of	 article	 VI,	 section	 3	 of	 the	 Maine	

Constitution.

c. Solemn	Occasion

[¶39]	 	With	 the	 nature	 of	 the	 new	Act and	 the	 language	 of	 the	 Maine	

Constitution	 in	 mind,	 we	 turn	 to	 the	 challenging	 process	 of	 determining	

whether	Question	2	is	asked	in	the	context	of	a	solemn	occasion.		Many	of	the	
28

guideposts	 for	 determining	 the	 existence	 of	 a	 solemn	 occasion	 are	

unquestionably	satisfied	by	Question 2.		The	Senate	asks	on	its	own	behalf	and	

does	 not	 seek	 advice	 applicable	 to	 the	 acts	 of	 another	 body or	Branch.	 	 See	

Opinion	of	the	Justices,	709 A.2d	1183,	1186	(Me.	1997);	Opinion	of	the	Justices,	

680 A.2d	444,	447	(Me.	1996).		It	seeks	advice	on	a	matter	that	is	not	tentative,	

hypothetical,	 or	 remote.33 See	 Opinion	 of	 the	 Justices,	 371	 A.2d	 616,	 620	

(Me. 1977);	Answer	of	the	Justices,	95	Me.	564,	571-72,	51	A.	224	(1901).		The	

Question	 is	 sufficiently	 precise	 and	 understandable,	 and	 does	 not	 implicate	

facts	or	other	provisions	of	law	beyond	those	cited	in	the	materials	submitted	

to	us	by	the	Senate.		See Opinion	of	the	Justices,	2015	ME	107,	¶	5,	123 A.3d	494;	

Opinion	of	the	Justices,	2012	ME	49,	¶¶ 5,	9	&	n.1,	40	A.3d	930;	Opinion	of	the	

Justices,	2002 ME	169,	¶	6,	815	A.2d	791;	Opinion	of	the	Justices,	460	A.2d	1341,	

1345	(Me.	1982).		Neither	is	the	Question overly	complex.		See	Opinion	of	the	

Justices,	 2004 ME	 54,	 ¶ 41, 850 A.2d	 1145.	 	 The	 Senate also	 seeks	 guidance	

about	a	matter	as	applicable	to	the	general	public	as	any	matter	ever	could	be,	

and	it	does	not	ask	whether	the	Court	will	overrule	a	prior	decision.		See	Opinion	

of	 the	Justices,	396 A.2d	at	225;	Opinion	 of	the	Justices,	157	Me.	152,	157-61,	

																																								 							 33		The	Attorney	General	represents	that,	of	the	most	recent	eleven	gubernatorial	elections,	nine	

were	won	by	a	plurality—but	not	a	majority—of	votes.
29

170 A.2d	 652	 (1961);	Answer	 of	 the	Justices,	 95 Me.	 at	 566,	569,	 51 A.	 224;	

Answer	of	the	Justices,	85 Me.	545,	546,	27	A.	454	(1891).

[¶40]	 	 We	 also	 conclude that	 the	 live	 gravity	 and	 unusual	 exigency	

requirements	are	satisfied.	 In	less	than	eighteen	months,	the	Maine	voters	will	

go	 to	 the	 polls	 to	 elect a	 new	 Governor along	 with	 their	 Senators	 and	

Representatives.		The	Act	is	presently	in	 force and	will	dictate	how	the	votes	

from	 that	 election	 will	 be	 processed.	 	 The	 potential	 for	 a	 constitutional	

challenge	to those	election	results	and	ensuing	upheaval	is	real.		Although	the	

next election	in	which	 the	ranked-choice	voting	system	will	be	used is	many	

months	away,	 those	months	will	 be	 consumed	with	 creating	 the	 documents,	

systems, and	technology necessary	to	 provide	a	 credible	election	 procedure.		

See L.D.	1557,	§	6.		Both	campaigning	and	voting	will	be	substantially	affected	

by	the	nature	of	the	voting	process.	 The	time	to	plan	and	organize	a	fair	and	

impartial	election	is	at	hand and	the	doubt	surrounding	the	constitutionality	of	

the	 Ranked-Choice	 Voting	 Act casts	 uncertainty	 on	 all	 aspects	 of	 voting	

preparation.		See	Storer	v.	Brown,	415	U.S.	724,	730	(1974) (“[A]s	a	practical	

matter,	there	must	be	a	substantial	regulation	of	elections	if	they	are	to	be	fair	

and	honest	and	if	some	sort	of	order,	rather	than	chaos,	is	to	accompany	the	

democratic	 processes.”);	 Me.	 Taxpayers	 Action	 Network	 v.	 Sec’y	 of	 State,	
30

2002 ME	64,	¶	8,	795	A.2d	75.		Thus,	we	conclude	that	both	the	live	gravity	and	

unusual	exigency	requirements	are	satisfied	as	to	Question	2.

[¶41]	 	 The remaining	 guideposts	 of	 a	 solemn	 occasion,	 however—the	

doubt	about	the	body’s	authority	and	the	status	of	the	law	in	question—present	

a	much	closer	question	and	require	further	discussion.

[¶42]		The	matter	before	us	presents	a	unique	set	of	circumstances.34		The	

Senate	 does	 not	 question	 its	 authority to	 act.	 	 It	 is	 candid	 in	 its	

acknowledgement	 that	it	 has	 no	 doubt	 about	its	 authority	 to	 amend,	 repeal,	

replace,	 or clarify	 the	 Act, or to	 propose	 a	 constitutional	 amendment.	 	 See

Me. Const. art.	IV,	pt.	3,	§ 9;	Me.	Const. art.	X,	§ 4.		

[¶43]		The	Act was	passed	by	citizen	initiative	on	November	8,	2016.	 The	

statute	was	self-executing;	it	automatically	became	effective	by	operation	of	the	

Maine	Constitution	on	January	7,	2017.	 There	is	no	uncertainty	as	to	the	status	

of	the	Act;	it	is	in	effect.	 See Me	Const.	art.	IV,	pt.	3,	§	19; Allen	v.	Quinn,	459 A.2d	

1098,	1103	(Me. 1983).

[¶44]		Also	unique	to	the	citizen-initiated	statutory	process is	the	fact	that

once	 the	 people	 have	 voted,	a	 citizen initiative	 does	 not	 require	 any	 further	

																																								 							 34	 	As	 noted	 previously,	 the	 authority	 of	 the	 body	 to	 act	 is	 not	 actually	 in	 question	 when,	 for	

example,	a	Governor	seeks	the	Justices’	opinion	on	the	constitutionality	of	a	bill	that	is	before	him	for	

possible	signature.		See	supra n.29.
31

action	of	the	Governor	or	the	Legislature.		See	Allen,	459	A.2d	at	1103.		Thus, in	

contrast	to	a	legislatively	initiated	bill,	neither	the	Governor nor	either	chamber

of	 the	 Legislature	 would	 have	 had	 the	 ordinary	 opportunity	 to	 seek	 the	

opinions	 of	 the	 Justices regarding	 their	 “authority” to	 act	 on	 a	 possibly	

unconstitutional	proposal	after	the	people	have	voted.	 See	supra n.29.

[¶45]	 	 The	 Senate,	 recognizing	 the	 unusual	 context	 of	 its Questions,	

asserts	 that	 it	 nevertheless	 requires	 guidance	 from	 the	 Justices	 for	 three	

reasons:	(1) “so	that	it	may	determine,	during	the	current	legislative	session,	

whether	it	is	necessary	to	propose	constitutional	amendments	for	submission	

to	 the	 voters	 for	 approval	 in	 November	 2017”;	 (2) to	 decide	 “whether	 to	

authorize	and	appropriate	in	excess	of	$1,500,000	in	the	biennial	budget	for	the	

period	beginning	July	1,	2017 to	implement	the	Act,”	including	for	the	purchase	

of	 “new	 voting	 equipment	 and	 computer	 software,	 staff	 positions,	 ballot	

printing	 and	 transportation	 and	 storage	 of	 ballots	 for	 counting	 in	 a	 central	

location”;	and	(3)	to	avoid	“uncertainty	over	the	outcome	of	any	future	election	

contests	involving	more	than	2	candidates.”

[¶46]	 	 The	 Senate notes	 the	 significant	 consequences	 of	 allowing	 the	

election	to	go	forward	pursuant	to	the	Ranked-Choice	Voting	Act if	the Act	is	

not	consistent	with	the	Maine	Constitution.		Specifically,	it	seeks	the	advice	of	
32

the	Justices	because	“failing	to	address	important	and	unresolved	questions	of	

law	about	 the	constitutionality	of	ranked-choice	voting	before	 the end	of	 the	

current	legislative	session	would	create	uncertainty	over	 the	outcome	of	any	

future	election	contests	involving	more	than	2	candidates.”

[¶47]		Thus,	the	issue	at	hand	is	whether	the	context	in	which Question	2

is	 propounded	presents	 such	 distinct	 circumstances	 that	 we	 should	 provide	

advice	despite	the	principles	that	would	ordinarily	cause	us	to	decline	to	do	so.

In	most	instances	where	a	question	has	been	presented	in	this	posture,	we	have	

declined	to	find	the	existence	of	a	solemn	occasion,	and	we	are	likely	to	do	so	in	

future	instances.		Given the	nature	of	the	inquiry	from	the	Senate	and	the	course	

of	 events	 through	which	it	is	 advanced,	however,	we	would	 be	 remiss	if	we	

refused to	 acknowledge	 the	 unique	 and	 historically	 significant situation	 in	

which	the	Senate	now	finds itself.	

[¶48]	 	 Ours	 is	 a	 representative	 democracy.	 	 Opinion	 of	 the	 Justices,	

461 A.2d	 701,	 704	 (Me.	 1983);	see Powell	 v.	 McCormack,	 395	 U.S.	 486,	 547	

(1969).	 	 “A fundamental	 principle	 of	 our	 representative	 democracy	 is,	 in	

[Alexander]	 Hamilton’s	 words,	 ‘that	 the	 people	 should	 choose	 whom	 they	

please	to	govern	them.’”		Powell,	395	U.S.	at	547	(quoting	2	The	Debates	in	the	

Several	 State	 Conventions	 on	 the	 Adoption	 of the	 Federal	 Constitution,	 as	
33

Recommended	 by	 the	 General	 Convention	 at	 Philadelphia,	 in	 1787	 at	 257	

(Jonathan	Elliot	ed.,	2d	ed.	1836)).		Because	this	entire	system	of	government	is	

founded	on	the	people’s	choice	of	who	will	represent	them,	the	right	to	vote	is	

regarded	as	“preservative	of	all	rights.”		Yick	Wo	v.	Hopkins,	118 U.S.	356,	370	

(1886).		

[¶49]	 	Although	it	need	 hardly	 be	 said,	we	 reiterate	 that	“[v]oting	is	a	

fundamental	right,	it	is	at	the	heart	of	our	democratic	process.”		Crafts	v.	Quinn,	

482	 A.2d	 825,	 830	 (Me.	 1984).	 	The	 public’s	 trust	 in	 the	 election	 process	 is	

therefore	at	the	forefront	of	our	concern.	 “[P]ublic	confidence	in	the	integrity	

of	the	electoral	process	.	.	.	encourages	citizen	participation	in	the	democratic	

process.”		Crawford	v.	Marion	Cty.	Election	Bd., 553	U.S.	181,	197	 (2008);	see	

Duplantier	v.	United	States,	606	F.2d	654,	668	n.30	(5th Cir.	1979) (discussing	

the	erosion	of	public	confidence	in	the	government	as	exhibited	by	low	voter	

turnout).		

[¶50]	 	 For the	 first	 time	 in	 Maine’s	 history,	 the	 voters	 have	 acted	 to	

change	a	 fundamental	aspect	 of	the	way	they	will	elect	 their	leaders	using a	

statutory	mechanism	rather	than	a	constitutional	amendment.		See Me.	Const.	

art.	IV,	pt. 1,	§	5	(amended	1864);	Me.	Const.	art.	IV,	pt.	2,	§	4	(amended	1875);	
34

Me.	Const.	art.	V,	pt.	1,	§	3	(amended	1880);	Resolves	1864,	ch.	344;	Resolves	

1875, ch.	98;	Resolves	1880,	ch.	159;	infra ¶¶ 61-63.

[¶51]	 	 As	 with	 many	 statutes	 enacted	 through	 citizen	 initiative,	 the	

Ranked-Choice	 Voting	 Act does	 not	 delineate	 several	 aspects	 of	

implementation.		Nor,	once	the	citizen	initiative	was	presented	to	the	voters,	

did	the	Legislature	or	the	Governor have	the	opportunity	to	seek	an	Advisory	

Opinion	before	the	bill	became	law.		See Me.	Const.	art.	IV,	pt.	3,	§	19.	

[¶52]		If	the	Act is	constitutional,	the	Senate	may decide	to	authorize	and	

appropriate	funding	to	effectuate	it.		If	the	Act is	unconstitutional,	the	Senate	

may	decide	to take	no	action	to	implement	it	and	instead	take	action	to	repeal	

it or to	 consider	 initiating	 the	 process	 for	 a	 constitutional	 amendment	 to	

accomplish	the	people’s	will.		Although	the	Senate	alone	cannot	implement	or	

repeal	any	legislative	measure,	neither	can	the	implementation	or	repeal	occur	

without	action	by	the	Senate.		See	Me.	Const.	art.	IV,	pt.	3,	§	2;	Me.	Const.	art.	IV,	

pt.	3,	§ 9;	Me.	Const. art.	X,	§	4;	5 M.R.S.	§ 1666-A (2016).		If	the	changes	must	be	

implemented	through	amendments to	the	Maine	Constitution,	the	Senate	may	

take	steps	toward allowing the	people	to	vote	on	those	amendments.

[¶53]	 The	Senate	represents	that,	without	our	advice,	it	is	unsure	how	to	

proceed.		If	the	Senate	leaves	in	place	a	statute	that	is	contrary	to	the	current	
35

language	of	the	Constitution and	that	statute	is	later	challenged	in	the	context	

of	actual	election	results,	the	consequence	could	well	be	the	necessity	of	one	or	

more	repeat	elections.		

[¶54]	 	 Aside	 from	 the	 expense	 and	 delay	 of	 such	 an	 outcome,	 repeat	

elections	carry	the	significant	potential	to	create	government	instability.		That	

very	process	led	to	the	brave	stand	of	Joshua	Chamberlain in	1880:	“[I]t	is	for	

me	to	see	that	the	laws	of	this	state	are	put	into	effect,	without	fraud,	without	

force,	but	with	calm	thought	and	sincere	purpose.		I	am	here	for	that,	and	I	shall	

do	it.		If	anybody	wants	to	kill	me	for	it,	here	I	am.		Let	him	kill!”		Alice	Rains	

Trulock,	In	the	Hands	of	Providence	358	(1992);	see	Ex	parte	Siebold,	100 U.S.	

371,	 382	 (1880) (“In	 the light	 of	 recent	 history and	 of	 the	 violence,	 fraud,	

corruption and	irregularity	which	have	frequently	prevailed	at	such	elections,	

it	may	easily	be	conceived	 that	 the	exertion	of	 the	power,	if	it	exists,	may	be	

necessary	to	the	stability	of	our	frame	of	government.”);	Buonanno	v.	DiStefano,	

430	 A.2d	 765,	 770	 (R.I.	 1981) (“[T]here	 is	 a	 strong	 public	 policy	 favoring	

stability	and	finality	of election	results.”).

[¶55]		In	short,	the	State	of	Maine	is faced	with	potential	uncertainty	in	

its	 election	 process,	 and	 we	 cannot	 ignore	 the	 historical	 ramifications	 of	
36

previous	election	upheaval.35 The	situation	is	serious	and	unusual.		In	 these	

unique	circumstances,	we	conclude	that	Question	2	indeed	presents	a	solemn	

occasion. To	 conclude otherwise	 would	 be	 to	 elevate	 our	 judicially	 created

interpretations	of	“solemn	occasions” above the	reality	of	this	unprecedented

and	historically	profound event.		

2. Questions	1	and	3

[¶56]		As	noted	below,	we	conclude	that,	given	our	answer	to	Question	2,

Questions	1	and	3 do	not	present	a	solemn	occasion.		See	infra ¶	69.

C. Constitutionality	of	the	Ranked-Choice	Voting	Act

1.		 Principles	of	Statutory	and	Constitutional	Construction

[¶57]		We	 therefore	provide	 the	 following	Advisory	Opinion regarding	

the	constitutionality of	the	Ranked-Choice	Voting	Act,	comparing	that	statute,	

21-A M.R.S.	 §§ 1(27-C),	1(35-A),	 601(2)(J),	 722(1),	 723-A;	L.D. 1557, §§	 1-6,

																																								 							 35	 	 As	 we	 discuss	 in	 further	 detail,	see infra ¶¶	 61-63,	 Maine	 underwent	 a	 period	 of	 election	

instability	in	the	mid- to	late-1800s	in	which	repeat	elections	were	held,	victors	were	declared	by	

alternate	 means,	 public	 opinion	 soured,	 and	 violence	 erupted;	 these	 events	 culminated	 in	

amendments	 to	 the	Constitution	requiring	 that	State	legislators	and	 the	Governor	be	elected	by	a	

plurality	rather	than	a	majority.		See Resolves	1864,	ch.	344;	Resolves	1875,	ch.	98;	Resolves	1880,	

ch	159;	Answers	of	the	Justices,	70	Me.	600,	600-08	(1880);	Answers	of	the	Justices,	70	Me.	570,	570-82	

(1880);	Answer	of	the	Justices,	35	Me.	563,	563-64	(1854);	Tinkle,	The	Maine	State	Constitution 12	

(2d ed.	2013).		
37

with	the	relevant	provisions of	the	Maine	Constitution,	Me.	Const.	art.	IV,	pt.	1,	

§	5;	Me.	Const.	art.	IV,	pt.	2,	§	4;	Me.	Const.	art.	V,	pt.	1,	§	3.

[¶58]		Our	construction	of	the	Maine	Constitution	depends	primarily	on	

its	plain	language,	which	is	interpreted	to	mean	whatever	it	would	convey	to	

“an	intelligent,	careful	voter.”		Opinion	of	the	Justices,	673	A.2d	1291, 1297 (Me.	

1996);	see Allen,	459 A.2d	at	1100.		“Constitutional	provisions	are	accorded	a	

liberal	interpretation	in	order	to	carry	out	their	broad	purpose,	because	they	

are	expected	to	last	over	time	and	are	cumbersome	to	amend.”		Opinion	of	the	

Justices,	673	A.2d	at	1297	(quotation	marks	omitted).		

[¶59]		Citizen-initiated	legislation	is	also	liberally	construed,	enacted,	as	

it	is,	by	“the	people,	as	sovereign.”		Opinion	of	the	Justices,	275	A.2d	800,	803	

(Me. 1971);	see	League	of	Women	Voters,	683	A.2d	at 771;	Allen,	459	A.2d	at	

1102-03.	 	 Citizen	 initiatives	 are	 reviewed	 according	 to	 the	 same	 rules	 of	

construction	 as	 statutes	 enacted	 by	 vote	 of	 the	 Legislature.	 	 Opinion	 of	 the	

Justices,	2004	ME	54,	¶	10,	850	A.2d	1145;	League	of	Women	Voters,	683	A.2d	

at	771.		Thus,	a	statute enjoys	a	“heavy	presumption”	of	constitutionality,	it	is	

the	 burden	 of	 the	 party	 challenging	 the	 statute to	 establish	 that	 it	 is	

unconstitutional,	and	 the	challenging	party	must	meet	 that	burden	beyond	a	

reasonable	doubt.		Opinion	of	 the	Justices,	2004	ME	54,	¶	10,	850	A.2d	1145;	
38

League	of	Women	Voters,	683	A.2d	at	771-72.		Moreover,	a	party	challenging	the	

facial	 constitutionality	 of	 a	 statute	 must	 establish	 that	 there	 is	 “no	 set	 of	

circumstances”	in	which	the	statute	could	be	read	to	be	constitutional,	even	if	

the	only	constitutional	interpretation	is	cumbersome or	introduces	additional	

delay	or	expense.		Guardianship	of	Chamberlain,	2015	ME	76,	¶	10,	118	A.3d	

229 (quoting	United	 States	 v.	 Salerno,	 481	U.S.	 739,	 745	 (1987)).	 	 There	 are	

several	reasons	why	 facial	constitutional	challenges	are	disfavored,	including	

that	 they	are	decided	 on	 “factually	 barebones	 records,”	 risk	an	exposition of	

constitutional	law	“broader	than	is	required	by	the	precise	facts	to	which	it	is	

to be	 applied,”	 and	 “threaten	 to	 short	 circuit	 the	 democratic	 process	 by	

preventing	laws	embodying	the	will	of	the	people	from	being	implemented	in	a	

manner	 consistent	 with	 the	 Constitution.”	 	 Id. ¶	 9	 &	 n.4	 (quotation	 marks	

omitted).	

2. Analysis	Regarding	Question	2

[¶60]		The	Senate	and	others	argue	 that the	Ranked-Choice	Voting Act

violates	 the	 plurality	 requirements	 of	 the	Maine	 Constitution.	 The	 Attorney	

General	 has	 provided	 an	 opinion	 to	 the	 Senate	 in	 which	 she has	 concluded,	

“L.D. 1557	thus	conflicts with	the	constitutional	requirement	that	winners	be	

determined	by	‘a plurality’	of	all	the	votes.”
39

[¶61]		In	arguing	that	the	Act	is	unconstitutional,	the	Senate	and	others	

rely	 heavily	 on	 the	 constitutional	 history	 of	 the	 plurality	 requirement.	 	 As	

originally	 established	 when	 Maine	 became	 a	 State	 in	 1820,	 the	 Maine	

Constitution	 provided	 for	 the	 election	 of	 Senators,	 Representatives,	 and	 the	

Governor	by	a	majority	vote.36		Me. Const.	art.	IV,	pt.	1,	§	5	(1820)	(providing,	as	

to	Representatives,	 that	 “any	person	 shall	 be	elected	 by	a	majority	 of	all	 the	

votes”);	Me.	Const.	art.	IV,	pt.	2,	§ 4	(1820)	(providing,	as	to	Senators,	for	the	

summons	of	“such	persons,	as	shall	appear	to	be	elected	by	a	majority	of	the	

votes	in	each	district”);	Me. Const.	art.	V,	pt.	1,	§	3	(1820)	(providing,	as	to	the	

Governor,	for	a	“choice	by	a	majority	of	all	the	votes	returned”).		

[¶62]	 	 Between	 1830	 and	 1880,	 a	 number	 of	 elections	 yielded	 no	

candidate	who	achieved	a	majority	vote.		Answers of	the	Justices,	70	Me.	600,	

600-08	(1880);	Answers of	the	Justices,	70	Me.	570,	570-82	(1880);	Answer of	

the	Justices,	35	Me.	563,	563-64	(1854);	Answer of	the	Justices,	7	Me.	483,	483-88	

																																								 							 36		A	plurality	refers	to	the	“highest	number	of	votes.”		Rockefeller	v.	Matthews,	459	S.W.2d	110,	

111	(Ark.	1970) (quotation	marks	omitted);	State	ex	rel.	Attorney	Gen. v.	Anderson,	12	N.E.	656,	658	

(Ohio	1887) (stating	that	a	“plurality”	refers	to	“the	greatest	of	any	number	of	unequal	divisions	of	

the	whole	body”).		A	majority,	in	contrast,	refers	to	“more	than	one-half,”	that	is,	greater	than	fifty	

percent.		Baxter	v.	Davis,	113	P.	438,	438	(Or.	1911);	see	Gilmore	v.	Civil	Serv.	Bd.,	528 So.	2d	1271,	

1272	 (Fla.	Dist.	Ct.	 App.	 1988) (defining	 a	 “majority”	 as	 “any	 number	larger	 than	 one-half	 of	 the	

total”);	Anderson,	 12	 N.E.	 at	 658-59	 (stating	 that	 a	 “majority”	 is	 “the	 greater	 of	 any	 two	 unequal	

divisions	of	the	whole	body”).		Thus,	a	plurality	of	the	vote	may	be	obtained	by	garnering	less	than	

half	of	 the	votes	as	long	as	no	other	candidate	obtained	more.		A	majority	is	always	a	plurality;	a	

plurality	may	be,	but	is	not	necessarily,	a	majority.
40

(1830);	Sen.	Report	No.	 38,	at	 8	 (24th	 Legis.	 1844);	 Committee	 of	 Elections,	

Report	 to	 the	 10th	 Legislature	 (Feb.	 1830).	 	 In	 those	 circumstances,	 the	

alternative	 means	 for	 election	 provided	 by the	 1820	 Constitution	 had	 to	 be	

utilized.		For	Representatives,	that	meant	holding	a	series	of	new	elections	until	

a	candidate won	a	majority.		Me.	Const.	art.	IV,	pt.	1,	§	5	(1820).		For	Senators,	

that	meant	that	the	Representatives	and	the	members	of	the	Senate	who	had	

been	elected	by	a	majority	would	elect	the	winners	by	joint	ballot.		Me.	Const.	

art.	IV,	pt.	2,	§ 5	(1820).		For	Governor,	it	meant	the	House	would	select	two	of	

the	candidates	from	those	four	candidates	who	received	the	highest	number	of	

votes and	 the	Senate	would	elect	 the	winner	of	 those	 two.		Me.	Const. art.	V,	

pt. 1,	§	3	(1820).		

[¶63]		The	result	was	widespread	discontent—and,	in	1879,	 threats	of	

violence,	which	were	quelled	by	the	efforts	of	Joshua	Chamberlain—caused	by	

the	expense	and	delay	of	holding	repeat	elections,	by	the	election	of	candidates	

through	legislative	action	rather	than	based	on	the	will	of	the	people,	and	by	

the	claims	of	manipulation	and	allegations	of	self-dealing	levied	by	opponents	

of	the	eventually-declared	winners.		See Sen.	Report	No.	38	(24th	Legis.	1844);	

Committee	of	Elections,	Report	to	the	10th	Legislature 6	(Feb.	1830);	Tinkle,	

The	Maine	State	Constitution 12 (2d	ed. 2013).		In	response	to	these	challenges,	
41

by	 1880,	 all	 three	 provisions	 had	 been	 amended	 to	 replace	 “majority”	 with	

“plurality”	 as	 is now	 found	 in	 the	 Constitution.37	 	 Resolves	 1864,	 ch.	 344	

(Representatives);	 Resolves	 1875,	 ch.	 98	 (Senators);	 Resolves	 1880,	 ch.	 159	

(Governor).		The	plurality	requirements	in	these	constitutional	provisions	have	

not	changed	since	1880.

[¶64]		As	last	amended	to	address	the	public’s	lack	of	confidence	in	the	

elective	process	in	1880,	the language	of	the	Maine	Constitution today is	clear.		

For	Maine	Senators,	Maine	Representatives,	and	the	Governor	alike,	an	election	

is	won	 by	 the candidate	that first	obtains “a	 plurality	 of”	 all	 votes	 returned.		

Me. Const.	art.	IV,	pt.	1,	§	5;	Me.	Const.	art.	IV,	pt.	2,	§	4;	Me.	Const. art.	V,	pt.	1,	

§ 3.		

[¶65]		The	Act,	in	contrast,	provides	for	the	tabulation	of	votes	in	rounds.		

21-A M.R.S.	§§ 722(1),	723-A(2);	L.D.	1557,	§§	4-5.		Thus,	the	Act	prevents	the	

recognition	 of	 the	 winning	 candidate	 when	 the	 first	 plurality	 is	 identified.		

According	to the	terms	of	the	Constitution,	a	candidate	who	receives	a	plurality	

of	the	votes	would	be	declared	the	winner	in	that	election.		The	Act,	in	contrast,	

would	not	declare	the	plurality	candidate	the	winner	of	the	election,	but	would	

																																								 							 37	 	 In	 1848,	 the	 “majority”	 requirement	 as	 to	 Representatives	 was	 changed	 to	 “the	 highest	

number.”	Resolves	1848,	ch.	84.		The	1864	amendment	then	changed	“the	highest	number,”	in	the	

context	of	the	election	of	Representatives,	to	“a	plurality.”		Resolves	1864,	ch.	344.
42

require	 continued	 tabulation	 until	 a	 majority	 is	 achieved	 or	 all	 votes	 are	

exhausted.38		Accordingly, the	Act	is	not	simply	another	method	of	carrying	out	

the	Constitution’s	requirement	of	a	plurality.		In	essence,	the	Act	is	inapplicable	

if	there	are	only	two	candidates,	and	it	is	in	direct	conflict	with	the	Constitution	

if	there	are	more	than	two	candidates.

[¶66]	 	The	 discrepancy	 between	 the	Act and	 the	 Constitution	is	 easily

illustrated	 by	 the	 simplest	 of	 scenarios.	 	 If,	 after	 one	 round	 of	 counting,	 a	

candidate	obtained	a	plurality	of	 the	votes	but	not	a	majority,	 that	candidate	

would	 be	 declared	 the	 winner according	 to	 the	 Maine	 Constitution	 as	 it	

currently	exists.		According	to	the	Act, however, that	same	candidate	would	not	

then	be	declared	the	winner.		

[¶67]		Instead,	the	candidate,	though	already	having	obtained	a	plurality	

of	the	votes,	would	be	subject	to	additional	rounds	of	counting	in	which	second,	

third,	 and	 fourth	 choices	 are	 accounted	 for	 and	 the	 lowest	 vote-garnering	

candidates	 are	 successively	 eliminated.	 	 Once	 those	 additional	 rounds	 are	

completed,	a	different	candidate	may	be	declared	the	winner—not	because	that

																																								 							 38		It	is	possible	that, if	a	ballot	becomes	“exhausted”	in	the	ranked-choice	voting	process,	either	

through	 the	 elimination	 of	 all	 candidates	 on	 a	 voter’s	 ballot	 or	 by	 the	 voter’s	 failure	 to	 name	

additional	ranked	candidates,	21-A	M.R.S.	§ 723-A(1)(D),	(2);	L.D.	1557,	§	5,	the	prevailing	candidate	

could	win	by a	plurality	of	votes.		In	those	circumstances,	because	the	Act	would	not	declare	the	first	

candidate	to	achieve	a plurality	to	be	the	winner,	it	conflicts	with	the	Constitution.
43

second	candidate	obtained	a	plurality	of	 the	votes	 (which	 the	 first	candidate	

had	already	obtained),	but	because	 that	candidate	obtained	a	majority of	 the	

votes	 after eliminating	 other	 candidates	 by	 taking	 into	 account	 the	 second,	

third,	and	fourth	place	preferences,	or	because	the	ballots	have	been	exhausted.		

In	this	way,	the	Act prevents	the	candidate	obtaining	a	“plurality” from	being	

named	 the	 winner	 unless	 and	 until	 multiple	 rounds	 of	 vote-counting	 have	

occurred.

[¶68]		We	therefore	answer	Question	2	in	the	affirmative.		

3. Questions	1	and	3

[¶69]	 	 Because	 we	 have	 unanimously	 opined that	 the	 Ranked-Choice	

Voting	Act is	in direct	contradiction	to the	plurality	requirements	of	the	Maine	

Constitution and	therefore	provide	our	opinion	that	it violates the	Constitution,	

we	assume	the	Senate	needs	no	further	advice	as	to	Questions 1	and	3	because	

those	Questions	address	the mechanisms by	which	that	process is	carried	out.		

We	therefore	conclude	that	Questions	1	and	3	do	not	present	a	solemn	occasion	

given	our	answer	to	Question	2,	and	we	decline	to	answer	Questions	1	and 3.
44

III.		CONCLUSION

[¶70]	 	 For the	 first	 time	 in	 Maine’s	 history,	 the	 method	 by	 which	the	

people	 of	 Maine	 vote	 for	 their Governor,	 their	 chosen	 Senators,	 and	 their	

chosen	Representatives	has	been	substantially	altered	through	the	enactment	

of	 a	 statute rather	 than	 through	 a	 constitutional	 amendment.	 	The	Question	

inquiring	 about	 a conflict	 between	 the	 application	 of	 that	 statute—the	

Ranked-Choice	 Voting	 Act—and	 the	 language	 of	 the	 Maine	 Constitution

presents	an	important	question	of	law.		The	looming	uncertainty	in	the	means	

by	which	the	people	may	elect	their	chosen	representatives, coupled	with	our	

responsibility	to	provide	advice	when	“required,”	leads	us	to	conclude	that	this	

is	 a	 unique	 and	 unusual	 circumstance	in	 which	 a	 solemn	 occasion	 has	 been	

presented.		Me.	Const.	art.	VI,	§	3.

[¶71]	 	 We	 answer	 only	 one	 of	 the	 Questions	 propounded because	

answers to	 the	 other	 Questions	 are unnecessary	 in	 light	 of	 our	 Advisory	

Opinion	on	Question	2.	

[¶72]		The	Senate	asks:

Question	 2.	 Does	 the	 method	 of	 ranked-choice	 voting	

established	by	the	Act	in	elections	for	Representative,	Senator	and	

Governor	 violate	 the	 provisions	 of	 the	 Constitution	 of	 Maine,	

Article	IV,	Part	First,	Section	5,	Article	IV,	Part	Second,	Sections	3	

and 4	and	Article	V,	Part	First,	Section	3,	respectively,	which	declare	

that	 the	 person	 elected	 shall	 be	 the	 candidate	 who	 receives	 a	
45

plurality	 of	 all	 the	 votes	 counted	 and	 declared	 by	 city	 and	 town	

officials	as	recorded	on	lists	returned	to	the	Secretary	of	State?	

The	seven	Justices	of	the	Maine	Supreme	Judicial	Court	respond:		

Yes,	the	Ranked-Choice	Voting	Act	conflicts	with	the	Maine	Constitution.

Signed:		May	23,	2017 Each	Justice	Individually	Opining.

For	the	Justices,

/s/

LEIGH	I.	SAUFLEY

Chief	Justice

DONALD	G.	ALEXANDER

ANDREW	M.	MEAD

ELLEN	A.	GORMAN

JOSEPH	M.	JABAR

JEFFREY	L.	HJELM

THOMAS	E.	HUMPHREY

Timothy	C.	Woodcock,	Esq. (orally),	Ryan	P.	Dumais,	Esq.,	and	Kady	S.	Huff,

Esq.,	Eaton	Peabody,	Bangor,	for	the	Maine	State	Senate

Catherine	R.	Connors,	Esq.,	and	Joshua	D.	Dunlap,	Esq.	(orally),	Pierce	Atwood,	

LLP,	Portland,	for	the	Maine	House	Republican	Caucus	and	the	Maine	Heritage	

Policy	Center

Janet	T.	Mills,	Attorney	General,	Susan	P.	Herman,	Dep.	Atty.	Gen.,	Phyllis	

Gardiner,	Asst.	Atty.	Gen.	(orally),	and	Thomas	A.	Knowlton,	Asst.	Atty.	Gen.,	

Office	of	the	Attorney	General,	Augusta,	for	the	Attorney	General	and	the	

Secretary	of	State
46

Katherine	R.	Knox,	Esq.,	Bernstein Shur,	Augusta,	for	Senators	Troy	Jackson,	

Mark	Dion,	Shenna	Bellows,	Ben	Chipman,	Justin	Chenette,	Rebecca	Millett,	

David	Miramant,	and	Eloise	Vitelli

James	T.	Kilbreth,	Esq.	(orally),	David	M.	Kallin,	Esq.,	and	Emily	T.	Howe,	Esq.,	

Drummond	Woodsum,	Portland,	for	The	Committee	for	Ranked	Choice	Voting

Rachel	M.	Wertheimer,	Esq. (orally),	Jonathan	M.	Dunitz,	Esq.,	Marie	J.	Mueller,	

Esq.,	and	Samuel	J.	Baldwin,	Esq.,	Verrill	Dana	LLP,	Portland,	for	the	League	of	

Women	Voters	of	Maine	and	Maine	Citizens for	Clean	Elections

Clifford	Ginn,	Esq.,	Ginn	Law,	LLC,	Scarborough,	T.	Clark	Weymouth,	Esq.,	

Hogan	Lovells	US	LLP,	Washington,	D.C.,	and	G.	Michael	Parsons,	Jr.,	Esq.,	Akin	

Gump	Strauss	Hauer	&	Feld	LLP,	Washington,	D.C.,	for	FairVote

Marshall	J.	Tinkle,	Esq.,	Thompson,	MacColl	&	Bass,	LLC,	PA,	Portland,	pro	se

Dmitry	Bam,	Esq.,	University	of	Maine	School	of	Law,	Portland,	pro	se

Larry	Diamond,	Hoover	Institution,	Stanford,	California,	pro	se
APPENDIX A

The	parties	who	submitted	briefs	take	the	following	positions:

Maine	Senate Solemn	occasion Unconstitutional

Maine	House	

Republican	Caucus	and	

Maine	Heritage	Policy	

Center

Solemn	occasion Unconstitutional

Attorney	General Solemn	occasion Unconstitutional

Secretary	of	State Solemn	occasion Unconstitutional

Senators	Troy	Jackson,	

Mark	Dion,	Shenna	

Bellows,	Ben	Chipman,	

Justin	Chenette,	

Rebecca	Millett,	David	

Miramant,	and	Eloise	

Vitelli

No	solemn	occasion No	position

The	Committee	for	

Ranked	Choice	Voting No	solemn	occasion Constitutional

League	of	Women	

Voters	of	Maine	and

Maine	Citizens	for	Clean	

Elections

No	solemn	occasion Constitutional

FairVote No	solemn	occasion Constitutional

Marshall	Tinkle No	solemn	occasion Constitutional

Dmitry	Bam No	position Constitutional

Larry	Diamond No	position Constitutional
APPENDIX	B

127th MAINE LEGISLATURE

SECOND REGULAR SESSION-2016

Legislative Document No. 1557

I.B. 2 House of Representatives, January 14, 2016

An Act To Establish Ranked-choice Voting

Transmitted to the Clerk of the 127th Maine Legislature by the Secretary of State on

January 12, 2016 and ordered printed.

ROBERT B. HUNT 

Clerk

Printed on recycled paper
Page 1 - 127LR2620(01)-1

1 Be it enacted by the People of the State of Maine as follows:

2 Sec. 1. 21-A MRSA §1, sub-§27-C is enacted to read:

3 27-C. Office elected by ranked-choice voting. "Office elected by ranked-choice

4 voting" means any of the following offices: United States Senator, United States

5 Representative to Congress, Governor, State Senator and State Representative, and

6 includes any nominations by primary election to such offices.

7 Sec. 2. 21-A MRSA §1, sub-§35-A is enacted to read:

8 35-A. Ranked-choice voting. "Ranked-choice voting" means the method of casting

9 and tabulating votes in which voters rank candidates in order of preference, tabulation

10 proceeds in sequential rounds in which last-place candidates are defeated and the

11 candidate with the most votes in the final round is elected.

12 Sec. 3. 21-A MRSA §601, sub-§2, ¶J is enacted to read:

13 J. For offices elected by ranked-choice voting, the ballot must be simple and easy to

14 understand and allow a voter to rank candidates for an office in order of preference.

15 A voter may include no more than one write-in candidate among that voter's ranked

16 choices for each office.

17 Sec. 4. 21-A MRSA §722, sub-§1, as amended by PL 2009, c. 253, §36, is

18 further amended to read:

19 1. How tabulated. The Secretary of State shall tabulate all votes that appear by an

20 election return to have been cast for each question or candidate whose name appeared on

21 the ballot. For offices elected by ranked-choice voting, the Secretary of State shall

22 tabulate the votes according to the ranked-choice voting method described in section

23 723-A. The Secretary of State shall tabulate the votes that appear by an election return to

24 have been cast for a declared write-in candidate and shall tabulate the votes that appear to

25 have been cast for an undeclared write-in candidate based on a recount requested and

26 conducted pursuant to section 737-A, subsection 2-A.

27 Sec. 5. 21-A MRSA §723-A is enacted to read:

28 §723-A. Determination of winner in election for an office elected by ranked-choice

29 voting

30 1. Definitions. As used in this section, unless the context otherwise indicates, the

31 following terms have the following meanings.

32 A. "Batch elimination" means the simultaneous defeat of multiple candidates for

33 whom it is mathematically impossible to be elected.

34 B. "Continuing ballot" means a ballot that is not an exhausted ballot.

35 C. "Continuing candidate" means a candidate who has not been defeated.
Page 2 - 127LR2620(01)-1

1 D. "Exhausted ballot" means a ballot that does not rank any continuing candidate,

2 contains an overvote at the highest continuing ranking or contains 2 or more

3 sequential skipped rankings before its highest continuing ranking.

4 E. "Highest continuing ranking" means the highest ranking on a voter's ballot for a

5 continuing candidate.

6 F. "Last-place candidate" means the candidate with the fewest votes in a round of the

7 ranked-choice voting tabulation.

8 G. "Mathematically impossible to be elected," with respect to a candidate, means

9 either:

10 (1) The candidate cannot be elected because the candidate's vote total in a round

11 of the ranked-choice voting tabulation plus all votes that could possibly be

12 transferred to the candidate in future rounds from candidates with fewer votes or

13 an equal number of votes would not be enough to surpass the candidate with the

14 next-higher vote total in the round; or

15 (2) The candidate has a lower vote total than a candidate described in

16 subparagraph (1).

17 H. "Overvote" means a circumstance in which a voter has ranked more than one

18 candidate at the same ranking.

19 I. "Ranking" means the number assigned on a ballot by a voter to a candidate to

20 express the voter's preference for that candidate. Ranking number one is the highest

21 ranking, ranking number 2 is the next-highest ranking and so on.

22 J. "Round" means an instance of the sequence of voting tabulation steps established

23 in subsection 2.

24 K. "Skipped ranking" means a circumstance in which a voter has left a ranking blank

25 and ranks a candidate at a subsequent ranking.

26 2. Procedures. Except as provided in subsections 3 and 4, the following procedures

27 are used to determine the winner in an election for an office elected by ranked-choice

28 voting. Tabulation must proceed in rounds. In each round, the number of votes for each

29 continuing candidate must be counted. Each continuing ballot counts as one vote for its

30 highest-ranked continuing candidate for that round. Exhausted ballots are not counted for

31 any continuing candidate. The round then ends with one of the following 2 potential

32 outcomes.

33 A. If there are 2 or fewer continuing candidates, the candidate with the most votes is

34 declared the winner of the election.

35 B. If there are more than 2 continuing candidates, the last-place candidate is defeated

36 and a new round begins.

37 3. Ties. A tie under this section between candidates for the most votes in the final

38 round or a tie between last-place candidates in any round must be decided by lot, and the

39 candidate chosen by lot is defeated. The result of the tie resolution must be recorded and

40 reused in the event of a recount. Election officials may resolve prospective ties between

41 candidates before the election.
2 ranked-choice voting ballot and tabulation is permitted in accordance with the following.

3 A. The number of allowable rankings may be limited to no fewer than 6.

4 B. Two or more candidates may be defeated simultaneously by batch elimination in

5 any round of tabulation.

6 5. Effect on rights of political parties. For all statutory and constitutional

7 provisions in the State pertaining to the rights of political parties, the number of votes cast

8 for a party's candidate for an office elected by ranked-choice voting is the number of

9 votes credited to that candidate after the initial counting in the first round described in

10 subsection 2.

11 6. Application. This section applies to elections held on or after January 1, 2018.

12 Sec. 6. Application. This Act applies to elections held on or after January 1, 2018.

13 SUMMARY

14 This initiated bill provides ranked-choice voting for the offices of United States

15 Senator, United States Representative to Congress, Governor, State Senator and State

16 Representative for elections held on or after January 1, 2018. Ranked-choice voting is a

17 method of casting and tabulating votes in which voters rank candidates in order of

18 preference, tabulation proceeds in rounds in which last-place candidates are defeated and

19 the candidate with the most votes in the final round is elected.