## 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

- 1 7

- 1

______________________________

QUESTIONS	PROPOUNDED	BY THE	MAINE	SEN ATE

IN	A	COMMUNICATION

DATED	FEBRUARY	2,	2017

ARGUED	APRIL	13,	2017

ANSWERED MAY 2 3 ,	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

an d	as	Gover nor	shall	be	elected	“ by	a	p lurality	of	all	votes	returned,” Me.	Const. art.	IV,	pt.	1,	§5	and	art.	V,	pt.	1,	§3,	a nd	those	elected	to	the	Senate	“ by	a	plurality of	the	vot es	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	de clare	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	ci ties	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	 bee n	 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	meeting s	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	op en	meetings	and	...	delivered	into	the	office	of	the Secretary	 of	 State forthwith.” ;	 and	 Article	 IV,	 Part	 Second,	 S ection	 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	Const itution	 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	seale d	and	returned	to	the	secretary’ s	office	in the	same	m anner	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	 Representat ives	 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	shal l	declare	and	publish the	same. ” ;	and

WHEREAS, Article	V,	Part	 First,	Section	 3	 of	 the	Constitution of	Maine further	provides	that	“ [i]f	the re	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	Artic le	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	 “rank ed

- 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	 vote s	 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	 th e	 votes	 according	 to	 the ranked

- choice	 voting	method	described	in	 [the	Maine	Revised	Statu tes,	Title 21

- A,]	sec tion	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	 conduc t 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	 ran ked

- 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	coun ted	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	 lev el,	 and	 further	 that	 the ranked

- choice	method	of	resolving	a	 tie	vote	in	a	race	 for	Governor	c onflicts 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	 r ole	 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 challe nge	 that	 c andidate’ 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	 c onstitutional 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	d uring	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	softwar e,	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	 questi ons 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	followi ng	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, dec lare	 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	Artic le	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?

Que stion	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	 ti e	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

opin ion	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	fo llowing	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	ci tizen	in itiative,	L.D.	1557,	§§	1

- 6	(referred

to	 the voters , 127 th 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

- cho ice	voting	for	elections	of United	States	Senators,	United

States	 Representatives,	 Govern or,	 State	 Senators,	 State	 Representatives,	 and

1 L.D.	1557 (r eferred	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,

r anked

- choice	 voting	 contrasts	 with	 the	 statutory	 description	 of	 Maine’s
previous	 system	 of	 single

- choice	 voting,	 b y	 which	 voters	 voted	 for a	 single

candidate	for	each	seat. See 21

- A	M.R.S.	§§ 691
, 69 2
, 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	V oting.” 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	 brie fs	 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	 Choi ce
Voting;	 Fa irVote;	 Dmitry	 Bam ;	 and	 Larry	 Diamond. 4 

## We	 conducted	 an O ral

A rgument	on	the	Questions	on	April	13,	2017.

I I .		DISCUSSION
[¶6 ] We	begin our	consideration	of	the	Questions	presented by	notin g

that only the question	of	the constitutionality	of the Ranked

- Choice	V oting 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	B elfast
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	bu t	subject	to	the	will	of	the	people	.	.	.	.”).
[¶7 ] We	are as ked	 to	opine	on	whether	 the	Ranked

- Choice	V oting Act
violates	 the	 Maine	 Constitution	 in	 any	 of	 three	 respects. It	 is	 the	 Maine

Constitutio n	that	provides	for	the	citizen

- initiative	process by	w hich	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)

. I t	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	(18 25)

. [¶8 ] Nonetheless, w hen	 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 )

. I t is “supposed	to	be
essential	to	all	written	constitutions,	that	a	law	repugnant	to the	constitution	is

void .” Id. at	 180 ; s ee	 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	mea ning	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 O pinions	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	tha t	may

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

effect. Opinion	 of	 th e	 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.”). A n	 Advisory	 Opinion	 of	 the

Justice s ,	however, provide s guidance	and	legal	a nalysis	that is	“ required” by	th e

other	B ranches for	the ir	use	in decision

- making	an d	action .		Me.	Const.	art.	VI,

§ 3.		S uch	advice	must	be	cautiously and	sparingly given

. [¶1 0 ] 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	Ju stices ,	396	A.2d	219,	223	(Me.	1979)

.

### 12



## T his	threshold	inquiry is	critical	to the	interactions	of	the	three	B ranches ,	both
because	the	Justices	are	constrained	by	strict constitutional limitations	on	their
authority to	 issue	 Advisory	 O pinions	 and	 because	 an y	 violation	 of	 those

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

w e	address	these	concepts	in	detail.

1. Foundational	Limitations	on	Judicial	Intervention
[¶1 1 ] In	 the	normal	course,	 the	 Justices	of	 the	Supreme	 Judici al	Court
exercise	 great	 care	 to	 avoid	 issuing Advisory	 O pinions	 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
[¶1 2 ] The	Maine	Constitution	divides	the	“powers	of	govern ment”	into

three Branch es:	the Legislative	B ran ch,	the	Executive	Branch,	and	the	Judicial

B ranch.		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 Branch es	 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


## [ Branch es],	shall	exercise	any	of	the	powers	properly	belonging	to	either	of	the
others,	except	in	the	cases	he rein	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 Branch es	of	government	from	exercising	the	powers	relegated	to	either

of	the	other	two Branch es.		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	 pre cipitous	 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.	U nited	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	go vernmental
powers	among	three	departments,	to	save	the	people	from	autocracy”).
[¶1 4 ] Thus, in	 the	 absence	 of	 direct	 constitutional	 authorization	 to
provide Advisory	O pinions,	the	doctrine	of	separation	of	powers dictate s that

“ we	decline	to	answer	ques tions	presented	by	the	Governor	or	the	Legislature

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

“ Branch es.”

### 14


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

815	A.2d	791.

b. Case	or	Controversy	Requirement
[¶1 5 ] The	 second	 important	 principle	 limiting	 the	 authority	 of	 the

J ustices	is	the	“universal	rule	[that]	judicial	power	may	be	exe rcised	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	A dvisory O pinion. 6



## 2. Express	Constitutional	Prerequisites	to	Advisory	Opinions
[¶1 6 ] Providing	a	narrow	exception	to	these core	concepts	attendant	t o
the	exercise	of	judicial	power, the	Maine	Constitution ,	in	article	VI,	section	3,

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

6 For	example,	the	Ques tions	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	citize n initiative	that	imp osed	term	limits	on	the me mbers	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	Advi sory	Opinion. Id.

### 15



## Court may	offer a	judicia l	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	inappr opriate	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	t he	Justices
,
355 A.2d	at	388

. [¶1 7 ] Because	 an	 Advisory	 O pinion	 represents	 a	 unique	 exception	 to
such	 foundational	 principles,	 the	 Maine	 Constitution	 carefully	 cabins	 the
authority of	the	Justices	to	provide	an	A dvisory O pinion. 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 Branch es	is	addressed	through	the

balance arti culated in	 the	 requirements (1) setting	 out who	 may	 seek	 the
Justices’	 advice, (2) inquiring whether	 that	 advice	is	 sought	 as	 to	important

question s	of	law
, and (3)	providing	that a	solemn	occasion must	exist for	the
Justices’	provision	of	such	advice.		Me .	Const.	art.	VI,	§	3. The se 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).
[¶1 8 ] 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
[¶1 9 ] By	 express	 constitutional	 mandate,	 the	 Ju stices	 may	 con sider
issuing	an	Advisory	O pinion	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	Legis lature
are	unlikely	 to	seek	an	Advisory	O pinion	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	question s 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

O pinion. Me.	Const.	art.	VI	§	3; s ee Opinion	of	the	Justices ,	5 71 A.2d	805,	810
(Me.	 1989) .	 	 Given	 the	 nature	 of	 the	 Q uestions	 before	 us	 today, we	 do	 not
further	 address	 the	 jurisprudential	 descriptions	 of	 this prerequisite	 to
exercising	our	Advisory	O pinion	authority.

c. Solemn	Occasion
[¶ 2 1] 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	ph rase “solemn	occasion s ”	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
guidepo sts 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	i nto	the	clear ly	defined territory	of	the

L egis lative	or	E xecutive	B ranch.

### 18



## i. Unusual	Exigency
[¶22 ] We	 have	 de termined	 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	requ ires	the	Justices	to	provide	advice	to	the	other Branch es.		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	 u nusual	 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	 pr oviding	 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 Opin ion	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 Opi nion	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	 answer 13 

## and when	 the	 proposed
legislation	at	i ssue	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	O pinion	relating	to
the	 power,	 duty,	 or	 authority	 of	 another Branch of	 government	 because	 the
body	presenting	the	question	has	no	ability	to	act	in	res ponse	to	the	Advisory

O pinion. 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 (dec lining	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]
hypoth etical”	present	no	solemn	occasion. 18 

## Similarly,	the	question	cannot	be

b ased	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	th at	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	g eneralized	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	inq uires	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	 O pinion. 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	qu estion	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 ] Sim i lar l y, 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 Justice s 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	reas onable	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	fo r	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	 question ing
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 ; Opin ion	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	 O pinion	 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,	60 4

- 0 5	(Me.	1981) (“[The	bill]	has	therefore	not yet	become	law;	it	is	still	awaiting	 the	Governor’s	signature; and	whether	he	may	constitutionally sig n	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	 pe nding	 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


## [¶ 3 1] 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	a n
Advisory	O pinion	is	pending,	and	that	“[s]uch	an	amendment	would	hav e	the
force	 of	 law,”	 unlike	 an	 Advisory	 O pinion. 31 

## Moreover,	 we	 act	 with	 caution

because	 “an Advisory	 O pinion	 interpreting	 an	 existing	 statute,	 though	 not
having	 the	 force	 of	 law,	 may	 je opardize	 private	 rights	 and	 public	 interests
created	by	such	statute.” 32



## B. Application	 of	 Limits	 on	 Advisory	 Opinion	 Authority	 to	 Questions P resented
[¶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 presentin g 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	Repre sentative,	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	 shal l	 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.	 § § 72 2(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	 tabul ation,	 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	 el iminated	 candidate	 ar e

reviewed and	 redistributed

— this	 time	 to	 account	 for	 those	 vo ters’	 second

place	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	b een	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	re ceived	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

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

to	Me.	Con st.	art.	IV,	pt.	2,	§	4,	State	S enators	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	“b y	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 ] T he	 Senat e has presented the	 Questions to	 us.	 	 Therefore,	 t he
standing	requirement	of	the Maine C onstitution	has	been	met with	regard to
Question	2

.

### 27



## b. Important	Question	of	Law
[¶37 ] There	can	be	no	doubt	that Question	2 address es a	very	serious

matter,	or	 that	 th e	change effectuated by	 the citizen initiative	is	extensive	in
enacting	a	new	and	comprehensively	different	method	of	voting	for	all	major

S tate	 offices.	 	 Whether	 the	 Act	 conflicts	 with	 the	 constitu tional	 “plurality”

requirement is	a	question	of	serious	co nsequence	for	the	people	of	this	State.
[¶38 ] The	potential	conflict	between	the	application	of	the Act and	the
language	 of	 the	Maine	Constitution	itself,	particu larly	in	light	 of	 the	 relevant

S tate	 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. M any	of	the

### 28


## guideposts	 for	 determining	 the	 existence	 of	 a	 solemn	 occasion	 are

unquestio nably 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,	11 86	(Me.	1997) ; Opinion	of	the	Justices
,
680 A.2d 444, 447	(Me.	1996) .		It	seeks	advice	on	a	matter	that	is	not	ten tative,
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	pluralit y

— 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	sa tisfied. 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	 document s ,
systems, and technology necessary to	 provide	a	 credible	election	 procedure.

See L.D.	1557,	§	6. B oth	campaigning	and	voting	will	be	substantially	affected
by	the	nature	of	the	voting	process. T he	time	to	plan	and	organize	a	fair	and
impartial	electio n	is	at	ha nd and	the	doubt	surrounding	the	constitutionality	of

the Ranked

- Choice	 V oting 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	regul ation	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	l ive	gravity	and
unusual	exigency	requirements	are	satisfied	as	to	Question	2.
[¶ 4 1] The remaining	 guideposts	 of	 a	 solemn	 occasion,	 however

— the
doubt	about	the	body’s	authority and th e	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	effecti ve	by	operation	of	the

Maine	Constitution	on	January	7,	2017. T here	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 sta t utory	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	G overnor	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	G overnor	or	the	Legislature. See	Allen ,	459	A.2d	at	1103. Thus, in
contrast	to	a	legislatively initiated	bill ,	neither	the	G overnor 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.2 9.
[¶45 ] The	 Senate, recognizing	 the	 unusual	 context	 of	 it s 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	invo lving	more	than	2	candidates.”
[¶46 ] The	 Senate notes	 the significant consequences	 of	 allowing	 the
election	to	go	forward	pursuant	to	the Ranked

- Cho ice	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	invo lving	more	than	2	candidates.”
[¶47 ] Thus,	the	issue	at	hand	is	whether	the	context in	which Question	2
is	 propounded presents such	 disti nct	 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	t o	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	 historical ly	 significant situati on	 in

which the	Senate now find s 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	t his	entire	system	of	government	is
founded	on	the	people’s	cho ice	of	who	will	represent	them ,	the	right	to	vo te	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.” Craw ford	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

. [¶ 5 1] As	 with	 many	 statutes	 enacted	 through	 citizen initiative,	 the

Ranked

- Choice	 V oting Act does	 not	 delineate	 several	 aspects	 of
implementation .		N or,	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	bi ll	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,	neithe r	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	Main e	Constitution,	the	Senate	may
take	steps	to ward allow ing the	people	to	vote	on	those amendments.
[¶53 ] T he	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	curre nt

### 35



## l anguage	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

el ections 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	wit h	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); s ee 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	g overnment. ”); Buonanno	v. Di Stefano
, 430	 A.2d	 765, 770	 (R.I.	 1981) (“[T]here	 is	 a	 strong	 public	 policy	 fa voring
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 ele ction	upheaval. 35 

## The	situation	is	serious	and	unusual. In	 these

unique circumstances,	w e	conclude	that	Question	2	indeed	presents	a	solemn

occasion

. To conclude otherwise	 would	 be	 to	 ele vate	 our judicially	 created
interpretations	of “ solemn	occasion s ” above the	reality	of	this unprecedented

and	historic ally	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	C onstruction
[¶57 ] We	 therefore	provide	 the	 following Advisory	O pinion regarding
the	constitutionality of	the Ranked

- C hoice V oting 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	Constituti on	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 ,	7 0	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	provision s of	the Maine	C onstitution, Me.	Const. art.	IV,	pt.	1,
§	5;	Me.	Const.	art.	IV,	pt.	2,	§	4; Me.	Const.	art.	V,	pt.	1,	§	3

. [¶58 ] Our	c onstruction	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, 129 7 (M e

. 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	co uld	be	read	to	be	constitutional,	even	if
the	only	constitution al	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	 (198 7) ) .	 	 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	 Constitu tion.” Id. ¶	 9	 &	 n

. 4	 (quotation	 marks
omitted)

.

2

. Analysis	R egarding Q uestion	2
[¶60 ] T he	Senate	and	others	argue	 that the R anked

- Choice	V oting 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


## [¶ 6 1] In	arguing	that	the	Act	is	unconstitutional,	the	Senate	and	others
rely	 heavily	 on	 the	 constitutional	 history	 of	 the	 plurality	 requirement. As

origi nally	 established	 when	 Maine	 became	 a	 State	 in	 1820,	 the	 Maine

Constitutio n	 provided	 for	 the	 election	 of	 Senators,	 R epre sentatives,	 and	 the

G overnor	by	a	majority	vote. 36 

## Me. Const.	art.	IV,	pt.	1,	§	5	( 1820)	(providing,	as

to	R epresentatives,	 that	 “any	pe rson	 shall	 be	elected	 by	a	majority	 of	all	 the

votes” );	Me.	Const.	art.	IV,	pt.	2,	§ 4	( 1820)	(providing,	as	to	S enators,	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

G overnor,	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	(18 80); 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) (quotati on	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,”	t hat	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	alway s	a	plurality;	a plurality	may	be,	but	is	not	necessarily,	a	majority.

### 40


## (1830) ;	Sen.	Report	N o.	 38,	at	 8	 (24th	 Legis.	 1844);	 Committee	 of	 Elections
, Report	 to	 the	 10th	 Legislatur e	 ( Feb.	 1830).	 	 In	 those	 circumstances,	 the

alternative	 means	 for	 election provided	 by the	 1820	 Constit ution	 had	 to	 be

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

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

that	meant	that	the	R epresentatives	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	selec t	two	of

the	candidates	from	those	four	candidates	who	recei ved	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	re sult	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	manipu lation	and	allegations	of	self

- dealing	levied	by	opponents
of	the	eventually

- declared	winners. See Sen.	Report	N o.	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
(R epresenta tives);	 Resolves	 1875,	 ch.	 98	 (S ena tors);	 Resolves	 1880 ,	 ch.	 159
(G overnor).		Th e	plurality	requirements	in	these	constitutional provisions	ha ve
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 toda y is	clear.
For	Maine	Senators,	Maine	Representatives,	and	the	Governor	alike,	an	election

is won	 by	 the candidate that first obtain s “a	 plurali ty	 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 ] T he Act ,	in	contrast, provides	for	the	tabul ation	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 ,	 th e	 “majority”	 requirement	 as	 to	 R epresentatives	 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	R epresentatives,	to	“a	plurality.”		Resolves	1864,	ch.	344.

### 42


## require	 cont inued	 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	candidat es,	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	obta ined	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 ] In stead,	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	 ac counted	 for	 and	 the	 lowest	 vote

- garnering
candidates	 are	 successively	 eliminat ed.	 	 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	“e xhausted”	in	the	ranked

- choice	voting	process,	either through	 the	 elimination	 of	 all	 candidates	 on	 a	 voter’s	 ballot	 or	 by	 t he	 voter’s	 failure	 to	 name additional	ranked	candidates,	21

- A	M.R.S.	§ 723

- A(1)(D), (2);	L.D.	1557,	§	5, the	prevai ling	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 ma jority 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 ] B ecause	 we have	 unanimously opine d that	 the Ranked

- Choice

V oting Act is	in direct	contradiction	to the	plurality	requirements	of	the	Maine

Constitution and	therefore provide	our	opinion	that	it violate s the	Constitution
, we	assume	the	Senate	needs	no	further	advice	as	to	Question s 1	and	3	because

those	Questions address	the mech anism s 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	Question s	1	and 3.

### 44



## III

. CONCLUSION
[¶ 7 0 ] For the	 first	 time	 in	 Maine’s	 history,	 the	 method	 by	 which the
people	 of Maine	 vote	 for	 the ir Governor,	 their	 cho sen	 Senators,	 and	 their

chosen	R epresentatives	has	been	substantially	altere d	through	the	enactment

of	 a	 statute rather	 than	 through	 a	 constitutio nal	 amendment. The Question
inquiring	 about	 a conflict	 between	 the	 applicatio n	 of	 that	 statute

— the

Ranked

- Choice	 Voting	 A ct

— and the	 language of	 the	 Maine	 Constitution
presents	an	important	question	of	law.		The	looming	uncertainty	in	t he	means
by	which	th e	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 b ecause

answer s to	 the	 other	 Q uestions are unnecessary	 in	 light	 of	 ou r	 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 r espond:

Yes ,	the Ranked

- Choice	Voting Act	c onflicts	with	the	Maine	Con stitution.

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	Ge neral, 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,	f or	T he	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

## A PPENDIX A
The	parties	who	submitted	briefs	take	the	following	positions:

Maine	Se nate 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



# 1 2 7 t h MAINE L EGI S LAT U RE

S E COND RE G UL A R SESSI O N

- 2016

L e gis l a t ive D o c u m e n t No. 1557
I

. B . 2 House of R e p r e s e ntative s , J a nu a r y 14, 2016

An A c t To Estab l ish R a nk e d

- c h oice Vo t i n g

T ra nsm i t t e d to t he Cle r k of the 127th M a ine L e g i s lature b y the Se c r e ta r y o f S tate on J a nu a r y 12, 2016 a nd o r d e r e d printed.

RO B ERT B

. H U N T Cle r k

P r in

t ed o n r ec y c l ed paperP ag e 1

- 1 2 7 LR 2 6 2 0 ( 0 1)

- 1 1 B e i t ena c t ed by t he P e op l e o f t he S t a t e o f Ma i n e as f o l l o w s:

2 

### S ec . 1. 2 1

- A M RSA §1, s ub

- §27

- C i s e n a c t ed t o re ad:

3 27

- C

. O ffi c e e l e c t ed by ranke d

- cho i ce vo t i ng. " O ff i ce e l e c t ed by r an k e d

- cho i ce 4 v o ti n g " m eans any of t he f o l l o w i ng o f f i c e s: U n i t ed St a t es Se n a t o r , U n i t e d St a t es 5 R ep r e s en t a t i v e t o C on g r e s s, G o v e r no r , St a t e Se n a t or and St a t e R ep r e s e n t a t i v e, and 6 i nc l udes any no m i na ti o ns b y p ri m a r y e l ec t i on t o s u ch o f f i c e s.

7 

### S ec . 2. 2 1

- A M RSA §1, s ub

- §35

- A i s e n a c t ed t o re ad:

8 35

- A

. R an k e d

- cho i ce v ot i ng. " R a n k e d

- cho i ce v o ti n g " m eans t he m e t hod o f c a s t i ng 9 and t ab u l a ti ng v o t es i n w h i ch v o t e r s r ank can d i d a t es i n o r d er of p r e f e r e n ce, t a bu l a ti o n 10 p r oc e eds i n s equ e n t i al ro unds i n w h i ch l a s t

- p l ace cand i d a t e s a r e d e f e a t ed and t he 11 cand i da t e w i t h t he m ost v o t es i n t he f i n a l r o u nd i s e l e c t ed.

12 

### S ec . 3. 2 1

- A M RSA §601, s ub

- §2, ¶J i s en a c t e d t o r e a d :
13 J

. For o f f i ces e l e c t ed by r a n k e d

- cho i ce v o ti n g , t he ba l l ot m ust be s i m p l e and ea s y t o 14 unde r s t a nd and a ll ow a v o t er t o r ank cand i d a t es f o r a n o f f i ce i n o r d e r of p r e f e r e nce. 15 A v o t er m ay i nc l u de n o m o r e t han one w r it e

- i n c and i da t e a m ong t hat v o t e r ' s r a nk ed 16 cho i c es f or each o f fi c e.
17 

### S ec . 4. 21

- A M RSA § 722, s u b

- §1, as a m end e d by PL 2009, c. 253, §36, i s 18 f u r t h e r a m end e d t o r e ad:

19 1. H o w t ab u l a t ed. T he S e cr e t a r y of St a t e sh a l l t ab u l a t e a l l v o t es t h at a p pe a r by an 20 e l e c t i on r e t u r n t o ha v e be e n c a st f or e a ch que s t i on or c a nd i da t e w hose na m e ap p e ar e d on 21 t he ba l l o t

. F or o f fi c es e l ec t e d by r a n k e d

- cho i ce v o ti n g , t he S ec r e t a r y of S t a t e sh a l l 22 t ab u l a t e t he v o t e s acc o r d i ng t o t he r an k e d

- cho i ce v o ti ng m e t hod de s c r i b e d i n s e c t i on 23 723

- A

. T he Sec r e t a r y of S t a t e s ha l l t abu l a t e t he v o t es t hat app e ar by an e l e c ti on r e t u r n t o 24 ha v e be e n c a s t f o r a de c l a r e d w ri t e

- i n c a nd i d a t e a n d s h a l l t ab u l a t e t h e v o t es t h at a ppe a r t o 25 ha v e be e n c a s t f o r an u nd e cl a r ed w r i t e

- i n c a n d i d a t e ba s ed o n a r e c o u nt r equ es t ed a n d 26 condu c t ed p u r s ua n t t o s e c t i on 73 7

- A , sub s e c t i on 2

- A.

27 

### S ec . 5. 2 1

- A M RSA §723

- A i s e na c t ed t o r e a d:

28 §723

- A

. D e t e r mi n a ti o n o f wi n n er i n e l e c t i on f or a n o ffi c e e l e c t ed by rank e d

- ch o i ce 29 vo ti n g

30 1. D e fi n i t i ons. A s us e d i n t h i s s e c ti o n , u n l e s s t he c on t e x t o t h e r w i s e i nd i ca t e s , t h e 31 f o l l o w i ng t e r m s h a v e t he f o ll o w i ng m ean i n g s.
32 A

. " B a t ch e li m i n a ti o n " m eans t he s i m u lt ane o us d ef eat o f m u lti p l e ca n d i d a t e s f or 33 w hom i t i s m a t he m a ti c a l l y i m pos si b l e t o be e l e c t e d

. 34 B

. " C on t i n u i ng b a l l o t " m eans a b a l l ot t h a t i s n o t an e x hau s t ed b a l l o t

. 35 C

. " C on t i n u i ng can d i d a t e" m eans a can d i d a t e who h as not b e en d e f e a t e d

.P ag e 2

- 1 2 7 LR 2 6 2 0 ( 0 1)

- 1 1 D

. " Exhaus t ed b a ll o t " m eans a ba l l o t t h a t does n o t r ank any con ti n u i ng cand i da t e, 2 con t a i ns an o v e r v o t e at t he h i g he s t co n t i nu i ng r ank i ng or con t a i ns 2 or m o r e 3 s e que n t i al s k i pped r an k i n g s be f o r e it s h i g he s t co n t i nu i ng r an k i n g

. 4 E. " H i g he s t co n ti n u i ng r a n k i n g " m eans t he h i g he s t r an k i ng on a v o t e r ' s ba ll ot f or a 5 con t i nu i ng cand i da t e. 6 F. " L a s t

- p l ace c and i da t e" m eans t he can d i d a t e w i t h t he f ewe s t v o t es i n a r ou n d of t he 7 r an k e d

- cho i ce v o ti ng t a bu l a ti on. 8 G

. " M at h e m a ti c a ll y i m pos si b l e t o be e l e c t ed," wi t h r e s p e ct t o a c and i da t e, m eans 9 e it h e r : 10 ( 1) T h e c a nd i d a t e ca n not b e e l ec t ed b e cau s e t he c and i da t e ' s v o t e t o t al i n a r o und 11 of t h e r an k e d

- cho i ce v o t i ng t abu l a t i on p l us a l l v o t es t h at co u l d p o s s i b l y be 12 tr a n s f e r r ed t o t he ca n d i d a t e i n f u t u r e r o unds f r om cand i d a t es wi t h f e w er v o t es o r 13 an eq u al nu m ber of v o t es w ou l d n o t b e en o u g h t o su r pa s s t he c and i da t e wi t h t h e 14 nex t

- h i g her v o t e t o t a l i n t h e r o un d ; or 15 ( 2) T h e ca n d i d a t e has a l o w e r v o t e t o t a l t han a can d i d a t e d e s c ri b ed i n 16 subp a r a g r aph ( 1 )

. 17 H

. " O v e r v o t e" m eans a c ir cu m s t a n ce i n w h i ch a v o t er h as r an k ed m o r e t han o n e 18 cand i da t e a t t h e s a m e r an k i n g

. 19 I

. " R an k i n g " m eans t he n u m ber a s s i g ned on a b a l l o t by a v o t er t o a c a nd i d a t e t o 20 exp r e ss t he v o t e r ' s p r e f e r en ce f o r t h a t ca n d i d a t e. R a n k i ng nu m ber one i s t h e h i g he s t 21 r an k i n g , r an k i ng nu m ber 2 i s t he n e x t

- h i g he s t r an k i ng and s o o n. 22 J

. " R oun d " m eans an i n s t a nce of t he s e q u ence o f v o t i ng t abu l a ti o n s t eps e s t ab l i s hed 23 i n su b s e c t i on 2.
24 K

. " S k i pped r an k i n g " m eans a c ir c u m s t ance i n w h i ch a v o t er h a s l e f t a r an k i ng b l ank 25 and r a n k s a ca n d i d a t e at a s ubs e q u ent r an k i n g

. 26 2. P r o ced u r e s . Exce p t as p r o v i ded i n sub s ec t i o n s 3 a nd 4, t he f o l l o w i ng p r o c e d u r es 27 a r e us e d t o de t e r m i ne t he w i nner i n an e l e c t i on f o r an o f f i ce e l e c t ed by r an k e d

- cho i ce 28 v o ti n g

. T ab u l a ti on m ust pr oceed i n r o u nds. I n each r ound, t h e nu m ber of v o t es f or e ach 29 con t i nu i ng cand i da t e m ust be cou n t ed. Each co n ti n u i n g ba ll ot cou n t s as o ne v o t e f or i t s 30 h i g h est

- r an k ed co n ti n u i ng cand i da t e f or t h a t r o und. E xhau s t ed b a l l o t s a r e n ot c o un t ed f o r 31 any con t i nu i ng c a nd i d a t e

. T he r o u nd t hen e nds w it h one o f t h e f o l l o w i ng 2 p o t e n ti a l 32 ou t co m e s

. 33 A

. I f t he r e a r e 2 or f ew e r c on t i nu i ng can d i d a t e s , t he c and i d a t e wi t h t h e m o s t v o t es i s 34 dec l a r e d t h e win n er o f t he e l e c ti o n

. 35 B

. I f t he r e a r e m o r e t h an 2 con t i n u i ng cand i da t e s , t he l a s t

- p l ace c a nd i d a t e i s d e fe a t ed 36 and a n ew rou n d be g i ns.
37 3. T i e s . A t i e u n der t h i s s e c t i on be t w e en c an d i da t es f or t he m ost v o t e s i n t h e f i n a l 38 r ound o r a t i e b e t w e en l a s t

- p l a c e can d i d a t e s i n any r o u nd m ust be de c i ded by l o t , and t h e 39 cand i da t e ch o s e n by l ot i s de f e a t e d. The r e s u l t o f t h e ti e r e s o l u ti o n m ust be r e co r ded and 40 r eu s ed i n t he e v ent o f a r e coun t

. El e c t i on o f fi c i a l s m ay r e s o l v e p r o s pe c ti v e ti e s b e t w e e n 41 cand i da t es b e f o r e t he e l e c ti on.2 r an k e d

- cho i ce v o ti ng b a ll o t and t abu l a t i on i s p e r m it t ed i n a c co r dan c e w i t h t h e f o l l o w i n g

. 3 A

. T h e nu m ber of a l l o w a b l e r an k i n g s m ay be li m it ed t o no f e w er t han 6

. 4 B

. T w o o r m o r e can d i d a t e s m ay be de f ea t ed s i m u lt a n eou sl y by ba t c h e l i m i na t i o n i n 5 any r ound o f t a bu l a t i on.
6 5. E ff e c t on r i gh t s o f pol i t i cal pa r ti e s. For a l l s t a t u t o r y and con s t i t u ti o n a l 7 p r o v i s i o ns i n t h e S t a t e pe rt a i n i ng t o t h e r i g h t s of po l i ti cal p a r ti e s, t he nu m ber of v o t es ca s t 8 f or a pa r t y ' s cand i d a t e f o r an o f fi c e e l e c t e d by r an k e d

- cho i ce v o t i ng i s t h e nu m ber of 9 v o t es c r ed i t ed t o t h a t ca nd i da t e a ft e r t he i n i t i al c oun t i ng i n t h e f i r st r ound d e s c ri b e d i n 10 sub s e c t i on 2.

11 6. A p p l i ca t i on. T h i s s e c t i on ap p li e s t o e l ec t i o n s h e l d on or a f t er J a n u a r y 1, 2018.

12 

### S ec . 6. Ap p l i c a t io n . Th i s Act a pp l i es t o e l e c t i ons h e l d on or a f t er J a n u a r y 1, 2 018.

13 

### S U MM A R Y

14 T h i s i n i t i a t ed b il l p r o v i d e s r an k e d

- cho i ce v o ti ng f or t he o f f i c e s o f U n i t ed S t a t e s 15 Sena t o r , U n i t ed S t a t es R e p r e s en t a t i v e t o C on g r e s s, G o v e r no r , S t a t e S en a t or a nd St at e 16 R ep r e s en t a t i v e f or e l e c t i o n s he l d on o r a ft e r J a nu a r y 1, 2018. R a n k e d

- cho i ce v o ti ng i s a 17 m e t hod of c a s t i ng and t a bu l a ti ng v o t es i n w h i ch v o t e r s r ank c a nd i d a t es i n o r d e r o f 18 p r e f e r e nc e , t a bu l a t i on p r o c e e ds i n r oun d s i n w h i ch l a s t

- p l a c e c a nd i d a t e s a r e d e f e a t ed and 19 t he c and i da t e w i t h t he m ost v o t es i n t he f i nal r ou n d i s e l e c t ed.