MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 52 Docket: Ken

- 18

- 130 Argued : April 12 ,	2018 Decided: April 1 7 ,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY, JJ.

MAINE	SENATE

v. SECRETARY	OF	STATE et	al.

PER	CURIAM [¶1] T he	 Superior	 Court	 (Kennebec	 County, Murphy,	 J. ) has reported seven	questions	to	us pursuant	to	M.R.	App.	P.	24 (a) , addressing the	Secretary of	State’s planned implementation	of	ranked

- choice	voting	in Maine’s primary elections	 scheduled	 for	 June	 12,	 2018. 1 The	 first	 t h ree questions	 are substantive,	and	the	remaining	questions	address	t he	justiciability	of	th os e	first three questions

. This opinion	focuses	only	on the	June	2018	primary	election ; it does	not address	any	other	potential	application	of	ranked

- choice	voting	in
Maine.

1 The	Committee	for	Ranked

- Choice	Voting,	along	with	prospective	congressional,	legislative,	and gubernatorial	candidates	Lucas	St.	Clair,	Mark	Eves,	Diane	Russell,	Betsy	Sweet,	and	Ben	Chipman, intervened	in	the	matter	in	the	Superior	Court. See M.R.	Civ .	P.	24.2 [¶2 ] We accept	 the	Report, answer	Question	3	 on	its	merits , conclude that	the	other	questions raise	nonjusticiable	issues , and	remand	the	matter	to the	Superior	Court	for	entry	of	a	final	judgment. In	summary: (1) We	assume,	without	deciding,	that	the	Maine	Senate,	a	single	body	of the	 bicameral	Maine	 Legislature,	 has	 standing	 to	 seek	 a	 declaration r egarding	 the	legal	 status	 of	 ranked

- choice	 voting	 i n	 the	 June	 2018 primary	elections and	to	challenge	in	court	the	operational	planning of	the	Secretary	of	State,	who	is	a	constitutional	officer; (2) We	 answer	 Reported	 Question 3 and	 determine	 that r anked

- cho ice voting	is	the current statutory law	of	Maine	for	the	primary	elections to	be	held on	June	12,	20 18 ; (3) We determine	that Reported	Questions	1	and	2, which ask	the Court to	act	in	contravention	to	the	constitutional	provision respecting	the separation	 of	 powers of	 the	 three independent	 B ranches	 of government , are	not justiciable ;	and (4) We determine	that	the	remaining	questions	are	moot.3 I.		BACKGROUND [¶3 ] The history	of	ranked

- choice	voting	in	Maine	to	date	could	provide the	substance	of	an	entire	civics	course	on	the creation of statutory law	in	the State	of	Maine. We	provide	the	highlights	here. [¶4 ] In 2016,	the	people	of	Maine	enact ed citizen

- initiated	l egislation	to implement	ranked

- choice	voting	 for general	and	primary elections occurring on	 or	 after	 January	 1,	 2018,	 for	 the	 offices	 of United	 States	 Senator	 and Representative,	State	Senator	and	Representative,	and	Governor

. 2 L.D.	1557, §§ 1

- 6	 (referred to	 the	 voters,	 127th	 Legis.	 2016)	 (effective	 Jan.	 7,	 2017) (codified	at	21

- A	M.R.S.	§§	1(27

- C),	1(35

- A),	601(2)(J),	722(1),	723

- A	(2017) ) ;

see Me.	Const.	art. IV,	pt.	3,	§	1 8

. The	Ranked

- Choice	Voting	Act 3 created	by	the citizens’	initiative	did	not,	how ever,	amend 21

- A	M.R.S.	§	723 (1) (2017), 4 which

2 The Ranked

- Choice	Voting	Act,	which	we	refer	to	as	the	RCVA,	defined	an	“[o]ffice elected	by ranked

- choice	 voting”	 as any	 office for	 “United	 States	 Senator,	 United	 States	 Representative	 to Congress,	Governor,	State	Senator	and	State	Representat ive,	and .	.	.	any	nomination[] by	primary election	 to	such	 offices.” L.D. 1557,	 §	1	 (effective	 Jan.	7.	2017)	 (codified	at	21

- A M.R.S.	 §	1(27

- C) (2017) )

.

3 The	Ranked

- Choice	Voting	Act	was	officially	titled,	“An	Act	To	Establish	Ranked

- choice	Voting.” L.D.	1557.

4 At	the	time	the	RCVA	was	enacted	by	citizen	vote,	21

- A	M.R.S.	§	723	(2015)	was	in	effect.		On June	22,	2017,	the	Legislature	amended	section	723.		P.L.	2017,	ch.	248,	§§ 1

- 9	(effective	Nov.	1,	2017) (codified	 at	 21

- A	 M.R.S.	 §§	 144,	 145,	 31 1(1),	 723(1)(A),	 (2),	 753

- B(5)	 (2017));	 30

- A M.R.S. §§ 757(2)(A),	2528(4)(C)	(2017)).		These	amendments,	enacted	prior	to	the	major	revision	made	by “An	Act	To	Implement	Ranked

- choice	Voting	in	2021,”	P.L.	2017,	ch.	316,	§§	1

- 14	(effective	Feb.	5, 2018),	m ade	 no	 substantive	 changes	 to	 the	 voting	method,	 but	modified	 section	 723	and	 several other	provisions	as	to	voter	enrollment	requirements.		P.L.	2017,	ch.	248,	§§	1

- 9.		These	intervening amendments	do	not	affect	the	current	dispute.		We	therefore	cite	to the	2017	version	of	section	723.4 states	that	“[i]n	a	primary	election,	the	person	who	receives	a	plurality	of	the votes	cast	for	nomination	to	any	office,	as	long	as	there	is	at	least	one	vote	cast for	that	office,	is	nominated	for	that	office.” Thus,	section	723 (1) continued	to provide that the	 winner	 of	 a	 primary	 election would be	 determined	 by	 a plurality	of	the	votes , even	while section	1(27

- C)	named	primary	elections as among	those	elections	to	be	conducted	using	ranked

- choice	voting. [¶ 5 ] On	May	23,	2017,	a t	 the	request	of	 the Main e Senate pursuant	 to Me. Const.	art.	VI,	§	3, we,	as	individual	Justices	of	the	Maine	Supreme	Judicial Court,	issued	a	unanimous Advisory	O pinion	stating that specif i c	aspects	of	the
RCVA conflict	with three	portions	of	the	Maine	Constitution

— Me.	Const.	art.	IV, pt.	1,	§	5;	Me.	Const.	art.	IV,	pt.	2,	§	4; and	Me. Const.	art.	V,	pt.	1,	§ 3. Opinion	of the	Justices , 2017	ME	100,	¶¶	1,	7,	9,	57,	64

- 68,	72,	162	A.3d	188. Those	sections address	 the electio n	 of the	 Governor	 and	members	 of	 the	Maine	 Legislature, both	Senators	and	 Representatives

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

5 In	 the	 Senate’s	 request	 for	 an	 Advisory	 Opinion	 regarding	 the	 constitutionality	 of	 the ranked

- choice	voting	statute,	we	were	not	asked	to	address	primary	elections,	which	are	governed entirely	by	statute	and	 find	no	sour ce	in	 the	Maine	Constitution	itself. See Opinion	of	the	Justices , 2017 ME	100,	¶	3,	162	A.3d	188; see	also 21

- A M.R.S.	§§	331

- 40	(2017); In	re	Primary	Election	Ballot Disputes	2004 ,	2004	ME	99,	¶	3,	857	A.2d	494. Although	the	Advisory	Opinion	did	not generate	binding	prec edent,	we	unanimously	opined that	the	method	of	ranked

- choice	voting	is	inconsistent with election	by	a	“plurality”	as	that	word	is used	in	the	Maine	Constitution. Opinion	of	the	Justices ,	2017	ME	100,	¶¶	9, 64

- 69 ,	162	A.3d	188.5 [¶ 6 ] In	 the	months	 that	 followed,	a	 number	 of	legislative	efforts	were commenced	 regarding	 ranked

- choice	 voting. See L.D.	 1256	 (128th	 Legis. 2017); L.D.	 1624	 (128th	 Legis.	 2017);	 L.D.	 1625	 (128th	 Legis.	 2017). Ultimately,	 t he	 Legislature	 enacted	 “An	 Act	 T o	 Im plement	 Ranked

- c hoice Voting	 in	 2021 , ” which	 we	 refer	 to	 as	 the	 Implementation	 Act .	 	 P.L.	 2017, ch. 316,	 §§	 1

- 14	 (effective	 Feb.	 5,	 2018); see C omm.	 Amend.	 B	 to	 L.D.	 1646,
No. H

- 568	 (128th	 Legis.	 2017) .	 	 The Implementation Act ,	 P.L.	 2017,	 ch.	 316, §§ 1

- 14, had	two	essential	components:

• I t delayed all	aspects	of	the implementation	of ranked

- choice	voting	until December	1,	2021,	and

• I t provided for	an	automatic	repeal	of	all	ranked

- choice	voting	provisions on	December	1,	2021, if ,	by	that	date, the	Maine	Constitution had not	been a mended	to	allow	ranked

- choice	voting for the	offices	of Maine Senator , Maine Representative ,	and	Governor

. [¶ 7 ] Three	days	before the effective	date of	 the Implementation Act ,	a people’s	 veto	 of portion s of the Implementation Act	 was	 initiated	 by	 the submission	of	signatures	later	certified	by	the	Secretary	of	State. See Me.	Const. art.	IV,	pt.	3,	§ § 17 ,	20 ; 21

- A	M.R.S.	§§ 901

- 906	(2017) .		Pursuant to Me.	Const. art.	IV,	pt.	3,	§	17(3) ,	t he	Secretary	of	State	announced	that the statewide vote on	whether	to	veto the	challenged portions	of	the Implementation Act would6 take	 place on	 June	 12,	 2018,	 the	 same	 day	 as	 the	 primary	 elections	 for	 the United	States	House	and	Senate,	Governor,	and	Stat e	House	and	Senate. [¶ 8 ] As	 a	 result	 of	 the initiation	 of	 the people’s	 veto, certified	 by	 the Secretary	of	State, the	effect	of	those	challenged	portions	of	the Implementation
Act	was “ suspended ” as	of	February	2,	2018,	pending	the	vote	on	June	12,	2018. Me.	Const.	art.	IV,	pt.	3,	§	17(2). Critical	to	the	matter	before	us,	the delay	of	the implementation	of	ranked

- choice	voting	until	2021	was suspended

. As	a	result, the	 RCVA,	 along	 with cer tain portions	 of	 the Implementation Act, became immediately	effective,	thus	effectuating	ranked

- choice	voting f or	the	June	2018 primary	elections

. See Me.	C onst.	art.	IV,	pt.	3,	§	17(2). [¶9]		With the	challenged	portions	of	the Implementation Act	suspended, the	provisions of	law	that	are p e rtinent to	the	primary elections a re :

• T h e	preexisting	and	unamended	por tions	of	the	elections	statutes,

• T h e provisions put in	 place by	 the	 citizen s’ enactment	 of the RCVA in 2016 , and

• T hose	portions	of	the Implementation Act	that ar e	not suspended by	the people’s	veto

. 6

6 Th e	Implementation	Act repealed	the	definition	of	“[o]ffices	elected	by	ranked

- choice	voting” and	 replaced	 it	 with	 a	 new	 version	 of 21

- A	M.R.S.	 § 1(27

- C)	 defining	 “[e]lections	 determined	 by ranked

- choice	voting” as	follows : 27
- C.	Elections	determined	by	ran ked
- choice	voting. “Elections	determined by	ranked

- choice	voting”	means:7 [¶10 ] O n	February	16, 2018,	 the	Committee	 for	Ranked

- Choice	Voting and congressional	 and	 gubernatorial	 candidates	 Lucas	 St.	 Clair,	 Jim	 Boyle, 7 Mark	 Dion,	 Mark	 Eves,	 Sean	 Faircloth,	 Diane	 Russell,	 Betsy	 Sweet,	 and	 Ben Chipman	(collectively,	the	Committee)	filed	a	complaint	in	the	Superior	Court against	the	Secretary	of	State	seeking a	declaratory	judgment	that	the Secretary of	State	i s	required	t o	implement	ran ke d

- choice	voting	in	the	primary	elections

. Comm

. for	Ranked

- Choice	Voting	v.	Sec ’ y	of	State ,	AUGSC

- CV

- 2018

- 24 ,	at	9	n.4 (Me.	Super.	Ct.,	Kennebec	Cty.,	Apr.	3,	2018)

. We	understand	that	t he	Secreta ry of	 St ate	 initially	 announced	 that	 hi s	 office would implement	 ranked

- choice voting	 for	 the	 primary	 elections ,	with	 the	initial	 result	 that	 the	 suit	was	 not aggressively	pursued. [¶1 1 ] On	March	29, 2018, the	Secretary	of	State	indicated	that there	was a	conflict between 21

- A	M.R.S	 § 1(27

- C)

— directing	 the	use	 of	 ranked

- choice

A.	 Primary	 elections	 for	 the	 offices	 of	 United	 States	 Senator,	 United	 States Representative	to	Congress,	Governor,	State	Senator	and	State	Representative; [and] B.	 General	 and special	 elections	 for	 the	 offices	 of	 United	 States	 Senator	 and United	States Representative	to	Congress. P.L.	2017,	ch.	316,	§	1. Because	it	is	not	challenged	by	the	people’s	veto,	the	version	of	section	1(27

- C) currently	in	place	is	that	adopted	by	the Implementation	Act.		Both	versions	of	section	1(27

- C)	(that enacted	by	the	RCVA	and	that	enacted	by	the	Implementation	Act)	provide	for	ranked

- choice	voting in	the	primary	elections,	however.

7 Jim	Boyle	and	Sean	Faircloth	have	since	withdrawn	from	the gubernatorial	race.8 voting	 in	 primary	 elections

— and 21

- A	 M.R.S	 § 723

— providing	 for	 plurality winners	in	primary	elections

. Immediately	a fter	the	Secretary	of	State	raised this	issue, t he	Committee pressed	its suit,	requesting a temporary	r estraining order	 “requiring	 the	 Secretary	 of	 State	 to	 continue	 the	 implementation	 of ranked

- choice	 voting	 for	 the	 June	 12,	 2018	 primary	 election.” 8 Comm.	 for Ranked

- Choice	Voting ,	AUGSC

- CV

- 2018

- 24,	at	9

. The	Senate	did	 not	move	 to intervene	in	the litigat ion	commenced	by	the	Committee. [¶1 2 ] T he	 court ( Murphy,	 J. ) ,	 recognizing	 the	 urgency	 of	 the	 matter, conducted	 a	 hearing on	 the afternoon of	 March	 29,	 2018,	 and	 e ntered	 a thorough order	dated April	3,	2018 , to	which	the	parties	agreed, addressing	and resolving	the	statutory	conflict	and requiring	the	Secretary	of	State	to “continue impleme ntation	 of	 the	 system	 of	 ranked

- choice	 voting	 for	 the	 June	 12,	 2018 primary	 election	 in	 accordance	 with	 21

- A	 M.R.S.	 §	 1(27

- C) and	 21

- A	 M.R.S. § 723

- A.” 9 Comm.	for	Ranked

- Choice	Voting ,	AUGSC

- CV

- 2018

- 24,	at	13

- 14. No

8 Meanwhile,	 the	 Secretary	 of	 State	 posted	 draft	 rules	 detailing	 the	 procedures	 for	 the administration	 of	 elections	 using	 ranked

- choice	 voting.	 	 Department	 of	 the	 Secretary	 of	 State, Proposed	 Rules	 Governing	 the	 Administration	 of	 Elec tions	 Determined	 by	 Ranked

- Choice	 Voting (Mar.	 28,	 2018), http://www.maine.gov/sos/cec/elec/upcoming/pdf/250rcv.pdf ; s ee P.L. 2017, ch. 316,	§	1 0	(effective	Feb.	5,	2018)	(to	be	codified	at	21

- A	M.R.S.	§	723

- A(5

- A)).

9 In	particular,	the	court	concluded that	the	Committee	had	met	its	burden	to	establish	a	likelihood of	success	on	the	merits	of	its	claim	that	the intent	of	the	citizens	in	enacting	the	ranked

- choice	voting statute	 was to	 apply	 ranked

- choice	 voting	 to	 the primary	 elections,	 notwithstanding o ther preexisting	 statutory	language	 to	 the	 contrary

. Comm.	for	 Ranked

- Choice	 Voting	 v.	 Sec’y	 of	 State , AUGSC

- CV

- 2018

- 24,	at 11

- 13 (Me.	Super.	Ct.,	Kennebec	Cty.,	Apr.	3,	2018) ; see	Ingraham	v.	Univ.	of Me.	at	Orono ,	441 A.2d	691,	693	(Me.	1982)	(setting out	the	criteria	for	obtaining	injunctive	relief).9 appeal	from	that	order h as been	taken ,	and the	parties	to	that proceeding	have indicated	that	no	appeal	will	be	pursued

. [¶1 3 ] On	 the same day that the	 Supe rior	 Court	 declared	 that ranked

- choice	voting	woul d	be	applicable	to	the	primary	elections , the Maine
Senate filed a five

- count complaint	 against	 the	 Secretary	 of	 State	 seeking declaratory	and	injunctive	relief to	halt	 the	implementation	of	ranked

- choice

v oting	in	the	primary	elections. T he	parties agreed	to	a	stipulated	record, and , b y	order	dated	April 11 ,	2018, the	Superior	Court	reported to	us,	pursuant	to
M.R. App .	P.	24(a), the following	questions. 1.	 	 Has	 the	 Senate	 proven,	 on	 the	 Stipulated	 Record appended hereto,	 that	 the	 Secretary	 of State’ s	 commitment	 or expenditure	 of	 funds	 for	 the purpose	 of	 implementing ranked

- choice	 voting	 in	 the	 June	 12,	 2018	 primary	 election constitutes	 a	 violation	 of	 the Legislature’ s	 appropriation authority	 or	 the	 Separation	 of	 Powers	 clause	 in	 the	 Maine Constitution,	 Article	 III,	 §	 2,	 where	 the	 appropriation	 for	 the Secretary	of	State	in	the	biennial	budget	law	(P.L.	2017,	c.	284) does	not	contain	language	explicitly	referencing	ran ked

- choice voting	 and	 the	 enactment	 of	 P.L.	 2017,	 c.	 316	 was	 partially suspended	by	a People’ s	Veto	Petition? 2.	 	 Has	 the	 Senate	 proven,	 on	 the	 Stipulated	 Record	 appended hereto,	 that	 the	 current	 statutory	 framework,	 including without	 limitation	 21

- A	 M.R .S.	 §	 723

- A,	 does	 not	 provide sufficient	authority	for	the	Secretary	of	State	to	arrange	for	the retrieval	and	transport	of	ballots	cast	by	voters	at	the	June	12, 2018	primary	election	from	municipalities	to	a	central	location in	 order	 to	 determine	 the	 wi n ners	 of	 the	 election	 by ranked

- choice	voting?10
3.	 	 Has	 the	 Senate	 proven,	 on	 the	 Stipulated	 Record	 appended hereto,	 that	 the	 current	 statutory	 framework,	 including without	 limitation	 21

- A	 M.R.S	 §§	 1(27

- C),	 1(35

- A),	 339, 695, 722(1),	723(1),	 some	 of	which	a re	 suspended	by	 the	 filing of the	 People’ s	 Veto Petition	 pursuant	 to	 the	 Constitution	 of Maine,	art.	IV,	pt.	3,	§	17,	prohibits	determining	the	winners	of the	June	12,	2018	primary	election	by	ranked

- choice	voting? 4.			Has	the	Senate	shown	that	it	has standing	to	bring	any	and	all	of the	legal	claims	set	forth	in	its	Complaint? 5.		Has	the	Senate	shown	that	any	or	all	of	the	legal	claims	set	forth in	 the	 Senate ’ s	 Complaint	 are	 justiciable	 under	 the	 political question	doctrine? 6.		Has	the	Senate	shown that	any	or	all	of	the	legal	claims	set	forth in	its	complaint	are	ripe	for	adjudication? 7.		Has	 the	Senate	identified	a	cause	of	action	 for	any	of	 the	legal claims	set	forth	in	its	Complaint?
II.		DISCUSSION
A. Reported	Questions [¶1 4 ] W e	begin	by addressing the vehicle	by which	this	matter	reaches

us — a	Report	pursuant	to	M.R.	App.	P.	24(a). 10 Because	there	has	been	no	trial

10 Maine	Rule	of	Appellate	Procedure	24(a)	provides, (a)	Report	 by	Agreement	 of	 Important	 or	 Doubtful	Questions. When	 the trial	 court	 is	 of	 the	 opinion	 that	 a	 question	 of	 law	 presented	 to	 it	 is	 of	 suffic ient importance	or	doubt	to	justify	a	report	to	the	Law	Court	for	determination,	it	may	so report	when: (1)	all	parties	appearing	agree	to	the	report;11 court	 adjudication	 of	 facts	 or other matters	 ordinarily	 resolved	 by	 the	 trial court,	we	do	not	automatically	accept	such	a	rep ort. Conservatorship	of	Emma , 2017	 ME	 1,	 ¶ 7,	 153	 A.3d	 102.	 	 “When	 the	 trial	 court	 reports	 questions	 for review,	 we	 independently	 determine	 whether	 acceptance	 of	 the	 report	 is consistent	with	our	basic function	as	an	appellate	court or	would	improperly pl ace	us	in	the	role	of	an	advisory	board”	due	to	the	lack	of	a	final	trial	court judgment	 to	review. Id. (quotation	marks	omitted). Although	w e	emphasize that	the	acceptance	of	a reported	question	is	the	exception,	not	the	rule , s ee	i d. , in	 these	 unusual	 circumstances, w e	 do	 accept	 the	 R eport	 pursuant	 to Rule 24( a )

. B

. Question	3 [¶1 5 ] We	 address	 Question	 3	 first.	 	 The	 Senate	 asks	 whether the contradiction	between	the	application	of	ranke d

- choice	voting	to	the	primary elections deline ated in	 21

- A	 M.R.S.	 §	 1(27

- C)	 and the	 p lurality	 provision	 for

(2)	there	is	agreement	as	to	all	facts	material	to	the	appeal;	and (3)	the	decision thereon	would,	in at	least	one	alternative, finally	dispose	of	the action.12 primary	elections described	in 21

- A	M.R.S.	§	723 (1) prevents	the	Secretary	of State	from	implementing	ranked

- choice	voting	in	the	June	12,	2018,	primary. [¶1 6 ] The Senate’s argument	 on Question	 3	 addresses the	 very	 issue decided	 by	 the	 Superior	 Court	 in Committee	 for	 Ranked

- Choice	 Voting	 v. Secretary	 of	 State ,	 AUGSC

- CV

- 2018

- 24	 (Me.	 Super.	 Ct.,	Kennebec	 Cty.,	 Apr.	 3, 2018). Had the	parties in this	case been	able	to fully	address	the	issu e	of	the Senate’s decision	 not	 to	 seek	 interventi on in Committee	 for	 Ranked

- Choice Voting , it	 is	 possible	 that	 we	 would have	 determined	 that	 the	 Senate	 was precluded	from	advancing	the	same	argument	now

. See , e.g. , Taylor	v.	Sturgell , 553	 U.S.	 880 ,	 893

- 95 (2008)	 (identifying	 six	 circumstances	 in	 which the assertion	 of	 collateral	 estoppel	 is	 permitted	 against	 a	 nonparty under	 the federal	 common	 law). We	 have	 never	 addressed	 the	 issue	 of	 non party preclusion	in	these	circumstances,	however,	and	we	do	not	tak e	this	occasion to	opine	on	it	now. Accordi ngly,	we	address	the	merits	of	Q uestion	3. [¶17 ] For	decades, Maine’s	election	laws ha ve explicitly provided that the	winner	of	a	primary	election	is	determined	by	a	plurality	of	the	votes

. S ee 21

- A	 M.R.S. §723 (1); P.L.	 1985,	 ch.	 161,	 §	 6	 (effective	 Sept.	 19,	 1985). 11

11 Public	 Law	 1985,	 ch.	 161,	 repealed	 the	 prior	 title	 21	M.R.S.A,	 generally	 governing	 election practices,	and	replaced	title	21	with	title	21

- A,	which	has	since	governed	election	laws.		P.L.	1985, c h. 161,	§§	5

- 6	(effective	Sept.	19,	1985).13 Section 723(1)	provides,	in	pertinent	part,	“ [i]n	a	primary	election,	the	person who	receives a plurality of	the	votes	cast	for	nomination	.	.	.	is	nominated	for that	office.” 21

- A	M.R.S.	§	723(1). When	the RCVA was	enacted	by	the citizens’
initiative in	2016,	it addressed	 the	application	of	ranke d

- choice	voting	 to	 the primary	 elections through	 the	 enactment	 of 21

- A	 M.R.S.	 § 1(27

- C) , which declared	 that	 an	 office	 elected	 by	 ranked

- choice voting	 “ includes	 any nominations	by primary	election	 to	such	offices.” L.D.	1557,	§	1. The RCVA , however, contained no reference	 to	 or	 amendment	 of section	 723 (1),	 thus creating	a	direct	conflict	in	the	applicable	statutory	provisions. [¶18 ] When the RCVA was addressed	 by	 the	 Legislature in	 2017, the reference in	section	723(1) t o	plurality	voting	for	primary	elections was left	in place until	December	1,	2021 .		P.L.	2017,	ch.	316,	 §	6.		At	 the	same	 time, the format	of 21

- A	M.R.S.	§	1(27

- C) was	amended so	that,	upon	a	lat er	effective	date, primary	elections	would	proceed as	follows : 27
- C.	 Elections	 determined	 by	 ranked
- choice	 voting.

“ Elections	determined	by ranked

- choice	voting” means: A. Primary	elections	for	the	offices	of	United	States	Senator, United	 States	 Representative	 to	 Congress,	 Governor,	 State Senator	and	State	Representative

. P.L.	2017,	ch.	316 ,	§	1

.14 [¶1 9 ] A s	a	result of	the	people’s veto, the	changes	to	section	723 (1) that deferred rank

- choice	 voting	 in primary	 elections for	 s everal	 years were suspended ,	 thus removing	any	 temporal	impediment to	 the original	plurality language	of	section	723(1). See Me.	Const.	art.	IV,	pt.	3,	§	17(2). Separately,	t he requirement	 of	 ranked

- choice	 voting	in	 the	primary	 elections	 established	by
21

- A	 M.R.S.	 § 1 (27

- C) became	 immediately	 effective and	 would	 apply	 to the June	201 8	primary	elections

. Because	determining the	winner	of	an	election through	plurality	voting	is	inconsistent	with	determin ing	the	winner	through	a ranked

- choice	 voting	 process, see	 Opinion	 of	 the Justices , 2017 ME	 100, ¶¶ 64

- 69 , 162 A.3d	188, 12 the	two	statu t es	are	in	conflict. [¶20 ] The	 legal issue	 presented	 by	 the	 conflict presents	 an	 age
- old question

— which of two	 conflicting provision s applies? See,	 e.g. Knight	 v. Aroostook River	 R.R.	 Co. ,	 67	 Me.	 291,	 293	 (1877)

. 13 When	 a	 more	 recent

12 We	acknowledge	that	an	Opinion	of	the	Justices	is	advisory	only,	and	it	does	not	provide	binding precedent.		Me.	Const.	art.	VI,	§	3; Opinion	of	the	Justices ,	2017	ME	100,	¶	9,	162	A.3d	188.		Through this	 opinion,	 we	 adopt	 the	 referenced	 reasoning	 in	 full	 without	 reciting	 the	 analysis	 verbatim. Opinion	 of	 the	Justices ,	 2017	ME	 100,	 ¶¶	 64

- 69,	 162	 A.3d	188	 (advising	 that	 “the	 Ranked

- Choice Voting	Act	is	in	dire ct	contradiction	to	the	plurality	requirements	of	the	Maine	Constitution”).

13 Quoting a	Massachusetts	case, Commonwealth	v.	Kelliher ,	94	Mass. (12	Allen) 480, 481	(1866) , with	approval , we	said	in Knight v.	Aroostook	River	R ailroad Co. , 67	Me.	291,	293	(1877), [W] henever	a	statute	is	passed	which	embraces	all	the	provisions	of	previous	statutes on	 the	 same	 subject,	 the	 new	 statute	 operates	 as	 a	 repeal	 of	 all	 antecedent enactments.	 This	 well	 settled	 rule	 of	 interpretation	 is	 founded	 on the	 reasonable inference	that	the	legislature	cannot	be	supposed	to	have	intended	that	there	should be	two	distinct	enactments	embracing	the	same	subject	matter	in	force	at	the	same15 amendment	 to	 a	Maine	 statute directly conflicts	with	 an older	 provision, we must,	 as	 always,	 determine	 the	 intent	 of	 the	 Legislature,	 and	 the	 question becomes	whether	the	older	provision	has	been repeal ed “ by	implication.” Blair
v.	State	Tax	Assessor ,	485 A.2d	957,	959	(Me.	1984) .		We apply	this	method	of
stat utory construction when	a	later	enactment	encompasses	the	entire	subject	matter	of an	 earlier	 act,	 or	 when	 a	 later	 statute	 is	 inconsistent	 with	 or repugnant	to	an	earlier	statute. When	a	later	statute	does	not	cover the	earlier	act	in	its	entirety,	but is	inconsistent	with	only	some	of its	provisions,	a	 repeal	by	implication	 occurs to	 the	extent	 of	 the conflict. Id. (citations	omitted). [¶21 ] In	 the	 matter	 before	 us , there	 is	 both	 a	 direct	 conflict in	 the statutorily	provided	met hod	of	voting	in	Maine primary	elections and	a	clarity of	purpose	 regarding	 the	most	 recent	enactment. 14 See Lewiston	 Firefighter s Assoc

. v. City	of Lewiston, 3 54	A.2d	154,	159

- 160	(Me.	1976); see	also	Opinion	of the	Justices ,	311	A.2d	103,	108	(Me.	1973).

time,	and	that	the	new	statute,	being	the	most	recent	expression	of	the	le gislative	will, must	be	deemed	a	substitute	for	previous	enactments,	and	the	only	one	which	is	to be	regarded	as	having	the	force	of	law.

14 Although	 we	 would	 not apply	 concepts	 of	 implicit	 repeal	 in	 doubtful	 cases, see	 Lewiston Firefighter s Assoc

. v. City	of Lewiston, 3 54	A.2d	154,	159	(Me.	1976), there	is	no	doubt about	the	direct conflict	in	this	case.16 [¶22 ] T he consistent	and explicit purpose	of	the	citizens’	initiative and the	 people’s	 veto has	 been	 to transition Maine	 elections	 to	 a	 system	 of ranked

- choice	 voting. The	wisdom	 of	 ranked

- choice	 voting is	 not	 before	 us. Our	 role	is	 to	 determine	 and	 effectuate	 the intent	 of	 the legislation unless	it conflicts	with	the Maine C onstitution	or the	United	States Constitution .		Neither
C onstitution	is	implicated by	 the	questions	presented	here ,	but	 the	statutory conflict	is	clear. Despite	the	existing	reference	to	p lura lity	voting	in	the	primary elections in section	723 (1) ,	both	the RCVA as	first	enacted by	the	people in	2016 and	 the	 amendments	 to	 ranked

- choice primary voting	 enacted by	 the Legislature in the	 Implementation	 Act	 in 2017 and immediately effectuated through	 the	 people’s	 veto expressly	 provide	 for	 prima ry	 elections	 to be governed by	ranked

- choice	voting.		L.D.	1557,	§ 1;	P.L.	2017,	ch.	316,	§	1. [¶23 ] It	is	evident	that the ranked

- choice primary provision of	the RCVA , 21

- A	M.R.S.	§	1(27

- C), enacted by	the	people	th rough	the	initiative	process and amended	 only	 in	 format	 by	 the	 Legislature in	 the	 Implementation	 Act , i s “repugnant” in	 substance to	 the plurality	 provision	 in 21

- A	 M.R.S.	 § 723 (1). Lewiston	Firefighters	Assoc. ,	354	A.2d	at	160. Thus,	as we	have	held,	“the	new statute,	being	the	most	recent	expression	of	the	legislative	will,	must	be	deemed17 a	 substitute	 for	 previous	 enactments.” Knight ,	 67	 Me. at	 293 ( quoted	 with approval	in Lewiston	Firefighter s Assoc. , 3 54	A.2d at 160). [¶24 ] Accordingly,	 w e conclude that the	 “plurality” provision	 of
21

- A M.R.S.	§ 723 (1)	has	been implicitly repealed	by the	most	recent	provision of	law	addressing	the ranked

- choice	voting method	to	b e	employed	in	the	June primary	elections , 21

- A	M.R.S.	§	1 (27

- C)

. 15 Pursuant	to	21

- A	M.R.S	§ 1 (27

- C),

r anked

- choice	 voting	 must	 be	 applied	 to	 the	 primary	 elections	 on	 June	 12,
2018.
C

. Question	1 [¶25 ] Through Q uestion	 1,	 the	 Senate	 seeks	 a declaration that	 the Secretary	of	State lacks	constitutional	authority	to	commit	and	expend	public monies	 for	 the	implementation	 of	 ranked

- choice	 voting	in	 the	 absence	 of an explicitly	 targeted appropriation	 by	 the	 Legislature. A ssuming without decidin g that	the	Senate	has	standing	to	assert	such	a	claim,	we	conclude	that Question	1	is	not	justiciable. [¶26 ] W e	 have	 long	 recognized	 a	 host	 of	 considerations	 according	 to which	we will decline	to	exercise	jurisdiction;	we	refer to	this	as	the “universal rule”	of	justiciability. Opinion	of	the	Justices ,	2017	ME	100,	¶ 15,	162	A.3d	188

15 T his	 determination	 is	 consistent	 with	 the	 decision	 of	 the	 Superior Court	 in Committee	 for Ranked

- Choice	Voting ,	AUGSC

- CV

- 2018

- 24,	at	11

- 13.18 (quotation	marks	omitted).		Justiciability	regards	“the	fitness	of	the	issues	for judicial	decision.” New	England	Tel.	&	Tel.	Co.	v.	Pub.	Utils.	Comm’n ,	448	A.2d 272,	302	( Me.	1982)	(quotation	marks	omitted). [¶27 ] In	the	context	of	the	matter	at	bar , the	requirement	of justiciability demands	 that	 our	 authority	 to	 decide	 a	matter	is	limited	 by	 that	most	 basic tenet	 of	 our	 government al structure

— the	 constitutionally

- mandated separation	of	powers. See Me.	Const.	art.	III,	§	2; Bouchard	v.	Dep’t	of	Pub.	Safety , 2015	 ME	 50,	 ¶	 10,	 115	 A.3d	 92.	 	 The	 Maine	 Constitution	 requires	 both	 that “[t]he	powers	of	this	government	shall	be	divided	into	3	distinct	[Branches],	the legislative, executive	and	judicial”	and	that	“[n]o	person	or	persons,	belonging to	one	of	these	[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, §§	1

- 2; see Opinion	of	the	Justices ,	2017	ME	100, ¶	13,	162	A.3d	188. [¶2 8 ] Like	 the	 federal	 courts,	 “our	 constitutional	 structure	 does	 not require	that	the	Judicial	Branch	shrink	from	a	confrontation	with	the	other	two coequal	 branches.” Raines v.	 Byrd ,	 521	 U.S. 811, 833 (1997) (Souter,	 J., concurring)	 (alterations	 omitted)	 (quotation	 marks	 omitted).	 	 Nevertheless, there	are	some	matters	in	which	we will exercise	judicial	restraint	by refusing19 to	adjudicate	matters where	the adjudication	“would involve	an	encroachment upon	 the	 executive	 or	legislative	powers.” Wright	v.	Dep’t	 of	Def

. &	Veterans
Servs. ,	623 A.2d	1283,	1285	(Me.	1993)	(quotation	marks	omitted); see Turner v.	Safley ,	482	U.S.	78,	85	(1987)	(“[S]eparation	of	powers	concerns	counsel a policy	 of	 judicial	 restraint.”) , superseded	 by	 statute ,	 Religious	 Freedom Restoration	Act,	Pub.	L. No.	103

- 141,	107	Stat.	1488. [¶ 29 ] Regarding Question	1, the	Senate	argues	that	the	general	allocation of	funding	to	the	Secretary	of State	cannot	be	utilized	by	the	Secretary	of	State absent an explicitly

- descriptive	allocation	of appropriated	funds to	particular actions	 related	 to	 voting and	 elections .	 	 The	 Senate	 has	 provided	 neither	 a constitutional	basis	for	this	argument	nor	a	statutory	foundation	for	its	claim to	restrict	the	authority	of	the	Secretary	of	State. [¶ 30 ] W ithout	 pointing	 to	 a	 live,	 current	 constitutional	 violation , t he Senate	asks the	Court	to	involve	itself	in	the Secretary	of	State’s expenditure	of already

- appropriated	funds .		The	s eparation	of	powers doctrine preclude s	us from	entertaining	this request by	the	Senate	for	the	Court to	assume	any	role	in supervising	 the legislative ly	 delegated tasks	 of the	 Secretary	 of	 State

. See generally, 21

- A	M.R.S.	§§ 21, 601

– 609 (2017) .		As	 the	United	States	Supreme Court	 has	 announced,	 courts	will	 not	involve	 themselves	in	 the	 “ amorphous20 general	supervision	o f	the	operations	of	government.” Raines ,	521	U.S.	at	829

. Question	1	is	not	justiciable

. D

. Question 2 [¶ 31 ] Regarding Question	 2,	 the Senate	 challenges	 the	 Secretary	 of State’s authority ,	 in	 the	 absence	 of	 additional explicit	 legislative action,	 to arrange	for	the security, possession , and	transportation of	ballots	in	a	ranked

choice voting election. As	 with	 Question	 1,	 w e	 are	 not	 persuaded	 by	 the suggestion that	 the	 l ogistics	 of	 implementing	 ranked

- choice	 voting	 create	 a constitutional	 crisis sufficient	 for	 us	 to	 ignore the	 separation	 of	 powers problems	inherent	in	these circumstances

. Question	2 regards the	epitome	of government al action	in	which	the	courts lack authority	to	meddle pursuant	to the separation	of	powers	doctrine.		Question	2	is	not	justiciable.
E. Que stions	4	through	7 [¶32 ] The	 remaining	q uestions	have	been	 resolved	by	 our	answers	 to Questions	1,	2,	and	3	and are	therefore	moot

. III

. CONCLUSION [¶33 ] We	have	accepted	the	Report	of	Questions	from	the	Superior	Court pursuant	 to	 M.R.	 App.	 P.	 24 (a)

. As	 to	 Q uestion	 3,	 we conclude	 that21 ranked

- choice	voting	is	the	law	of	Maine	with	regard	to	the	primary	elections on	June	12,	2018,	notwithstanding	any	contradiction	by	21

- A	M.R.S.	§	723(1). [¶34 ] We	 have also determined	 that	 the	 courts	 of	 Maine will	 not adjudicate either of	 the remaining substantive	 questions	 presented	 by	 the Report

— Q uestions	 1 and 2

. The se questions	 ask	 us	 to	 address	 the	internal funding	and	administrative	decisions	of	the	Office	of	the	Secretary	of	State	and seek	the	Court’s	i ntervention	into	the	prospective	logistical	arrangements	for securing,	possessing,	and	transporting	the	ballots	during	the	primary elections to	be	held	on	June	12,	2018

. We	conclude	that	t hese	q uestions ,	which	reflect Counts	1	 through	4	of	the	Senate’s	co mplaint, cannot	be	adjudic ated	becaus e they	are	quintessentially	non justiciable. [¶35 ] Finally, the need	to answer	Questions	4,	5,	6,	and	7,	which	address justiciability, is obviated	by	our	answers to	Q uestions	1,	2,	and	3 .		The	issues raised	 in	 those four	 questions are	 moot
. Thus,	 t he matters	 raised	 by	 the Senate’s	 complaint ,	 distilled	 to	 the	 seven	 questions	 presented here , are fully resolved	by our	answers .22 The	entry	is: Report	 accepted.	 	 Remanded	 to	 the	 Superior Court	 for	 entry	 of	 judgment	 on Count	 5 (Question	3)	declaring	that	ranked

- choice	voting shall	be	employed	in	the	June	12,	2018,	primary election,	and	dismissing	as	nonjusticiable	Counts 1,	2,	3,	and	4	(Questions	1	and	2). Mandate	to	issue	forthwith.

Timothy C. Woodcock,	Esq. (o rally),	Ryan	P.	Dumais,	Esq.,	and	Kady	S.	Huff, Esq.,	Eaton	Peabody,	Bangor,	for	the	Maine	State	Senate Phyllis	Gardiner,	Esq.	(orally),	and	Thomas	A.	Knowlton,	Esq.,	Office	of	the Attorney	General,	Augusta,	for	the	Secretary	of	State James	G.	Monteleone ,	Esq.	(orally),	and	Michael	R.	Bosse,	Esq.,	Bernstein	Shur, Portland,	for	the	Committee	for	Ranked

- Choice	Voting,	Lucas	St.	Clair,	Mark Eves,	Diane	Russell,	Betsy	Sweet,	and	Ben	Chipman Timothy	R.	Shannon,	Esq.,	Rachel	M.	Wertheimer,	Esq.,	Jonathan	Dunit z,	Esq., Marie	M.	Mueller,	Esq.,	and	Samuel	Baldwin,	Esq.,	Verrill	Dana,	LLP,	Portland, for	amicus The	League	of	Women	Voters	of	Maine

Kennebec	County	Superior	Court	docket	number	CV

- 2018

- 51 F OR C LERK R EFERENCE O NLY