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UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE
_____________________________________
BRETT BABER,
TERRY HAMM-MORRIS,
MARY HARTT,
and
BRUCE POLIQUIN,
Plaintiffs,
v.
MATTHEW DUNLAP, Secretary of the
State of Maine.

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Case No. _________________

DECLARATORY AND
INJUNCTIVE RELIEF
SOUGHT

Defendant.
_____________________________________

COMPLAINT
Plaintiffs Brett Baber, Terry Hamm-Morris, Mary Hartt, and Bruce Poliquin
(collectively “Plaintiffs”), by and through their attorneys, file this complaint against
Matthew Dunlap, the Secretary of the State of Maine (“Secretary”), seeking declaratory
and injunctive relief on an expedited basis.
INTRODUCTION
1.

The right to vote “‘is of the most fundamental significance under our

constitutional structure.’” Ayers-Schaffner v. DiStefano, 37 F.3d 726, 727 (1st Cir. 1994)
(quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)). Indeed, “‘[n]o right is more
precious in a free country than that of having a voice in the election of those who make

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the laws under which, as good citizens, we must live.’” Melanson v. Sec’y of State, 861
A.2d 641, 645 (Me. 2004) (quoting Burdick, 504 U.S. at 441). Because the right to vote
is “at the heart of our democratic process” and regarded as “preservative of all rights,”
Opinion of the Justices, 162 A.3d 188, 207, as revised (Me. 2017), “[a]llegations by
voters that their right to vote has been unlawfully denied or impaired must be considered
with the utmost care,” Roberts v. Wamser, 883 F.2d 617, 624 (8th Cir. 1989).
2.

Against this backdrop, Plaintiffs bring this lawsuit to protect their right to vote –

and to vote effectively – in federal elections. This right is being undermined by Maine’s
“Act to Establish Ranked-Choice Voting” (“RCV Act”), which has replaced the pluralitybased, single-election system used in this state for nearly 140 years with an exotic, ranked
choice voting system described as “costly,” “confusing,” and “depriv[ing] voters of
genuinely informed choice.”
3.

Based on current returns, the November 6, 2018 election for U.S. Representative

for Maine’s Second Congressional District will be the first general election where the
Defendant will apply the RCV Act’s procedures to determine the winner of the election.
While courts (including this one) have reviewed the RCV Act on prior occasions – with
the Maine Supreme Court ruling just last year that the law conflicted with the Maine
Constitution – this case involves heretofore unraised First Amendment, Fourteenth
Amendment, and Voting Rights Act-based challenges that have arisen out of the present
election and need immediate resolution.
4.

The RCV Act also violates Art. I, § 2 of the United States Constitution, which sets

a plurality vote as the qualification for election to the U.S. House of Representatives.

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Instead of respecting this important constitutional principle, the RCV Act directly
contravenes it by denying individuals who obtained the highest number of votes after the
first round of balloting – in this case, Bruce Poliquin – from being declared the winner of
the general election.
5.

Accordingly, to prevent the irreparable injury that would occur should the

Defendant determine the winner of this election based on ranked choice voting (also
known as “instant-runoff voting”), Plaintiffs seek a preliminary and permanent
injunction, expedited declaratory judgment, and other relief that will invalidate the
challenged law and vindicate Plaintiffs’ constitutional right to have federal election
returns counted in accordance with traditional – and constitutional – procedures.
JURISDICTION AND VENUE
6.

This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, 52 U.S.C.

§ 10307(a) (the Voting Rights Act), and the First and Fourteenth Amendments to the
Constitution of the United States of America. This Court has subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), and 2201
(declaratory judgments). Venue is proper under 28 U.S.C. § 1391 because the Defendant
resides in this district and the events giving rise to the claims occurred in this district.
PARTIES
7.

Plaintiff Brett Baber is a resident of and duly registered voter in Maine’s Second

Congressional District. Consistent with Maine’s use of ranked choice voting in federal
elections, the details of which are described more fully infra, in the November 6 general
election Mr. Baber voted for Republican Bruce Poliquin as his first choice to serve as

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Maine’s Second District Congressional Representative. Mr. Baber did not rank or
otherwise vote for any of the other remaining choices on the ballot for that office. Mr.
Baber is also Chair of the Penobscot County Republican Committee.
8.

Plaintiff Terry Hamm-Morris, a veteran of the U.S. Navy, is a resident of and duly

registered voter in Maine’s Second Congressional District. Consistent with Maine’s use
of ranked choice voting in federal elections, in the November 6 general election Ms.
Hamm-Morris voted for Republican Bruce Poliquin as her first choice to serve as
Maine’s Second District Congressional Representative. Ms. Hamm-Morris did not rank
or otherwise vote for any of the other remaining choices on the ballot for that office.
9.

Plaintiff Mary Hartt is a resident of and duly registered voter in Maine’s Second

Congressional District. Consistent with Maine’s use of ranked choice voting in federal
elections, in the November 6 general election Ms. Hartt voted for Republican Bruce
Poliquin as her first choice to serve as Maine’s Second District Congressional
Representative. Ms. Hartt did not rank or otherwise vote for any of the other remaining
choices on the ballot for that office.
10.

Plaintiff Bruce Poliquin is the incumbent Member of Congress from Maine’s

Second Congressional District. Mr. Poliquin is also a resident of and duly registered
voter in Maine’s Second Congressional District. Consistent with Maine’s use of ranked
choice voting in federal elections, in the November 6 general election Bruce Poliquin
voted for himself as his first choice to serve as Maine’s Second District Congressional
Representative. Mr. Poliquin did not rank or otherwise vote for any of the other
remaining choices on the ballot for that office. Mr. Poliquin is participating in this

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lawsuit in both his capacity as a voter and as a candidate whose election has been subject
to unfair process.
11.

Defendant Matthew Dunlap is the Secretary of State for the State of Maine

(“Secretary”) and is sued in his official capacity. The Secretary is required to “tabulate
the election returns and submit the tabulation to the Governor” no later than 20 days after
the election. 21-A M.R.S. § 722. State law also requires the Secretary to tabulate the
votes according to Maine’s special ranked choice voting procedures. See id. The
Secretary is required to keep his office in Augusta, Maine. See 5 M.R.S. § 81; Me.
Const. art. IX, § 16.
12.

Under the Secretary’s direction, the Division of Elections in the Secretary’s

Office “supervises and administers all elections of federal, state and county offices and
referenda, and in that capacity advises election officials from 500 municipalities, 600
candidates and the general public regarding election laws and procedures; prepares,
proofreads and distributes 1,800 separate ballot types and other elections materials;
tabulates official elections results; supervises recounts in contested races; and oversees
the application of state laws pertaining to candidate and citizen initiative petitions.”
Dep’t of the Sec’y of State, Elections & Voting, at https://www.maine.gov/sos/cec/elec/
(last visited Nov. 12, 2018). The requested relief sought against the Secretary is also
requested to extend to any officer, employee, or agent acting at the Secretary’s direction,
supervision, or control.

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FACTS
The Adoption of Ranked Choice Voting in Maine
13.

In November 2016, a statute entitled “An Act to Establish Ranked-Choice

Voting” was enacted via citizen initiative by a vote of 52.12% to 47.88%. The RCV Act
required the Secretary to implement ranked choice voting for elections of U.S. Senators,
U.S. Representatives, Governor, State Senators, and State Representatives in Maine, as
well as primaries for those offices, occurring on or after January 1, 2018. See L.D. 1557
(127th Legis. 2016).
14.

The term “ranked choice voting” is defined in the RCV 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.” Id. 1557, § 2.
15.

Ranked choice voting under the RCV Act works as follows. Voters are permitted

to “rank” candidates for an office in order of preference. That is, they can indicate on
their ballots that a particular candidate is their first choice, another candidate is their
second choice, yet another is their third choice, and so on. If one candidate receives an
outright majority of first choice votes in the first round of counting, he or she wins. If no
candidate receives a majority, the candidate with the fewest first choice votes is
eliminated and voters who chose that candidate as their first choice have their ballots
counted for their second choice. This process repeats and last-place candidates are
eliminated until one candidate receives a majority and wins.

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16.

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In practical terms, the RCV Act “[w]orks just like actual runoff elections without

the cost and delay.” Me. Citizen’s Guide to the Referendum Election, Tuesday, Nov. 8,
2016 at 52-53, at www.maine.gov/sos/cec/elec/upcoming/citizensguide2016.pdf (last
accessed Nov. 12, 2018).
17.

As enacted via citizen initiative, the RCV Act mandated that elections of U.S.

Senators, U.S. Representatives, Governor, State Senators, and State Representatives in
Maine, as well as primaries for those offices, be determined by majority vote.
18.

Prior to adoption of the RCV Act, elections of U.S. Senators, U.S.

Representatives, Governor, State Senators, and State Representatives in Maine, as well as
primaries for those offices, were determined by simple plurality. Under the simple
plurality system, voters are only permitted to select one candidate for an office and the
candidate that receives the most votes (whether or not they obtain an absolute majority)
wins.
19.

In February 2017, the Maine Senate asked the Maine Supreme Judicial Court

(“SJC”) for an advisory opinion as to the constitutionality of ranked choice voting in
general elections for state offices in light of the provisions in the Maine Constitution
mandating that elections for State Representative, State Senator, and Governor be
determined by “plurality.” Me. Const. art. IV, pt. 1, § 5; id. art IV, pt. 2, § 4; id. art. V,
pt. 1, § 3. The Justices answered the Senate’s question. Opinion of the Justices, 2017
ME 100, 162 A.3d 188.
20.

The SJC explained the distinction between the plurality system established by the

Maine Constitution and the majority system established by the RCV Act. Under the

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plurality system, “an election is won by the candidate that first obtains ‘a plurality of’ all
votes returned.” That is, “[i]f, after one round of counting, a candidate obtained a
plurality of the votes but not a majority, that candidate would be declared the winner.”
Id. at 211. Under the RCV Act, “that same candidate would not then be declared the
winner. Instead, the candidate, though already having obtained a plurality of the votes,
would be subject to additional rounds of counting in which second, third, and fourth
choices are accounted for and the lowest vote-garnering candidates are successively
eliminated. Once those additional rounds are completed, a different candidate may be
declared the winner . . . because that candidate obtained a majority of the votes.” In
short, the “Act prevents the recognition of the winning candidate when the first plurality
is identified.” Id.
21.

Because ranked choice voting fundamentally changed the plurality system, the

SJC opined that the RCV Act violated the Maine Constitution insofar as it applied to
general elections for state office. The SJC reasoned as follows: while the Maine
Constitution mandates that “a candidate [for State Representative, State Senator, or
Governor] who receives a plurality of the votes would be declared the winner in that
election,” the RCV “Act, in contrast, would not declare the plurality candidate the winner
of the election, but would require continued tabulation until a majority is achieved or all
votes are exhausted.” The SJC thus concluded that the RCV Act was “in direct conflict
with the [Maine] Constitution.” Id.
22.

In October 2017, after the Supreme Judicial Court issued its Opinion of the

Justices, the Maine Legislature adopted L.D. 1646, “An Act to Implement Ranked-choice
Voting in 2021” (hereafter, the “2021 Implementation Act”). The 2021 Implementation
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Act delayed implementation of ranked choice voting for all relevant elections until
December 1, 2021, and it repealed ranked choice voting for all relevant elections as of
that date unless, prior to December 1, 2021, Maine voters ratified an amendment to the
Maine Constitution authorizing the Legislature to determine the method by which the
Governor and members of the State Senate and House of Representatives are elected.
Pub. Law 2017, ch. 316. The 2021 Implementation Act was codified at 21-A M.R.S.
§§ 1(27-C), 1(35-A), 601, 695, 722-723, and 723-A.
23.

After the Legislature adopted the 2021 Implementation Act, proponents of ranked

choice voting gathered sufficient signatures to initiate a People’s Veto of portions of the
2021 Implementation Act. The Secretary certified the signatures for the People’s Veto on
March 5, 2018. On June 12, 2018, Maine voters sustained The People’s Veto, and ranked
choice voting was reinstated for elections for U.S. Senator and U.S. Representative, as
well as primary elections for those offices and the offices of Governor, State Senator, and
State Representative. This includes the November 6, 2018 election for U.S.
Representative from Maine’s Second Congressional District.
24.

At the same time voters were approving ranked choice voting, they also used it to

determine the winners of the June 12 primary. But the system had serious problems:
“many voters were confused by the new system,” “perplexed at the polls,” and left
“angry” by their experience. Matt Vasilogambros, Now That Maine Tried RankedChoice Voting, Will Other States?, Governing (June 26, 2018), at
http://www.governing.com/topics/politics/sl-ranked-choice-voting-states.html. In Bangor
alone, “about 200 were spoiled because of voter error from confusion over ranked-choice

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voting,” a number the City Clerk said was “far more than she sees in a typical election.”
Id.
Criticism of Ranked Choice Voting/Instant-Runoff Voting
25.

Ranked choice voting/instant-runoff voting has been met with bipartisan criticism

across the country. In Maine, former Democratic Secretary of State Bill Diamond
condemned the process as “costly” and predicted that it’s “going to be a huge mess.”
David Sharp, Ranked Choice as Easy as 1, 2, 3? Not So Fast, Critics Say, Associated
Press, Oct. 9, 2016. Governor Paul LePage, a Republican, has decried ranked choice
voting as a “one person, five votes” system that is “repugnant to the Constitution.” Mal
Leary, Opposed to Ranked-Choice Voting, LePage Says He Might Not Certify Primary
Election Results, Maine Public Radio (June 12, 2018), at
http://www.mainepublic.org/post/opposed-ranked-choice-voting-lepage-says-he-mightnot-certify-primary-election-results#stream/0.
26.

In California, Democratic Governor Jerry Brown Jr. vetoed a bill that would have

expanded ranked-choice voting beyond a limited number of municipalities. See David
Sharp, Ranked Choice as Easy as 1, 2, 3? Not So Fast, Critics Say; Bob Egelko, Brown
Vetoes Bill to Broaden Ranked-Choice Voting in California, San Francisco Chronicle,
Sept. 30, 2016. In his veto message, Governor Brown explained that “[i]n a time when
we want to encourage voter participation, we need to keep voting simple. Ranked choice
voting is overly complicated and confusing. . . . I believe it deprives voters of genuinely
informed choice.” David Sharp, Ranked Choice as Easy as 1, 2, 3? Not So Fast, Critics
Say. California Senator Dianne Feinstein has also taken aim at ranked choice elections,
saying “I think you [need to] outright win these things. With ranked choice, you could be

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No. 2 and win. I don’t think that makes sense in an office where any degree of strength is
required.” Sam Levine, Maine Is About to Try Out a New Way of Electing Politicians,
Huffington Post, June 7, 2018, at https://www.huffingtonpost.com/entry/maine-new-wayelecting-politicians_us_5b16fe45e4b0734a99386f47.
27.

Academics, commentators, and other scholars have likewise criticized ranked

choice voting and spoken out about its drawbacks. For example, one Columbia
University Professor observed that this type of voting can lead to “bizarre results” and
has “serious problems related to the tabulation and reporting of . . . results.” Stephen
Unger, Instant Runoff Voting: Looks Good--But Look Again (Mar. 26, 2007), at
http://www1.cs.columbia.edu/~unger/articles/irv.html; see also Kathy Dopp, Realities
Mar Instant Runoff Voting: 18 Flaws and 4 Benefits (updated Feb. 12, 2009), at
http://electionmathematics.org/ucvAnalysis/US/RCV-IRV/InstantRunoffVotingFlaws.pdf
(noting same). Another commentator has cautioned that ranked choice voting is a
“deceptive and potentially dangerous” system. James Langan, Instant Runoff Voting: A
Cure That Is Likely Wore Than the Disease, 46 Wm. & Mary L. Rev. 1569 (2005).
28.

And yet another has underscored the undemocratic nature of ranked choice

voting: “voters cannot foresee the effect of their second- and third-choice votes” and are,
in short, left to take “a costly shot in the dark.” Gordon Weil, Ranked-Choice Voting:
Costly, Complicated, Undemocratic, Portland Press Herald (Sept. 30, 2016).
29.

Ranked choice voting/instant run-off voting also reduces the incentives that major

parties have “to cater a bit to ideological minorities,” as a number of third-party voters
will list a major party candidate as their second choice and obtain their votes anyway,

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thereby decreasing the incentives for Republican and Democrats to modify their
platforms to entice independent voters in the first instance. Jason Sorens, The False
Promise of Instant Runoff Voting, CATO Unbound (Dec. 9, 2016), at https://www.catounbound.org/2016/12/09/jason-sorens/false-promise-instant-runoff-voting.
30.

Studies also have shown that as many as 27% of ballots in a particular race may

be discarded before the final, decisive round of voting – a phenomenon known as
exhaustion – because voters fail to rank all of the candidates, which means that ranked
choice voting is not necessarily increasing voter participation. Simon Waxman, RankedChoice Voting Is Not the Solution, Democracy: A Journal of Ideas (Nov. 3, 2016), at
https://democracyjournal.org/arguments/ranked-choice-voting-is-not-the-solution/. And
still another scholar has highlighted how ranked choice voting can lead to higher
overvotes – i.e., where voters make errors that invalidate their vote – than would
otherwise exist in a typical “vote for one,” plurality-style contest. Corey Cook, The
Trouble with Ranked-Choice Voting, San Francisco Bay Area Planning and Research
Ass’n (Jan. 6, 2012), at https://www.spur.org/news/2012-01-06/trouble-ranked-choicevoting.
31.

Ranked choice voting also has “suppressed voter turnout, especially among

those segments of the electorate that are already least likely to participate.” Testimony of
Vignesh Ganapathy, Policy Director, ACLU of Kansas, Kan. Special Comm. on
Elections (Oct. 27, 2017), at https://www.aclukansas.org/en/legislation/aclu-testimonyranked-choice-voting. In particular, scholarly analysis has revealed “a significant
relationship between [ranked choice voting] and decreased turnout among black and
white voters, younger voters and voters who lacked a high school education,” Mary
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Kenny, Ranked-Choice Voting Linked to Lower Voter Turnout, S.F. State News (Oct. 23,
2015), at https://news.sfsu.edu/news-story/ranked-choice-voting-linked-lower-voterturnout, with “poor people, the elderly and people who aren’t native English speakers
particularly struggl[ing] with [the system],” Lance Williams, Instant Runoff, Low-Income
Voters Struggle with Ranked-Choice Voting, Hawaii Free Press (Jan. 13, 2011), at
http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/3541/Instant-Runoff-Lowincome-voters-struggle-with-ranked-choice-voting.aspx. Ranked choice voting also can
lead to increased levels of overvotes in low income areas. See id.
The November 6, 2018 and Future Elections
32.

On November 6, 2018, Maine held a general election that included a number of

federal and states races on the ballot. As part of this election, voters in Maine’s Second
Congressional District – including Plaintiffs – voted to select the individual who would
represent them in the 116th Congress. According to the U.S. Census Bureau, 652,628
individuals live in Maine’s Second Congressional District, with 525,845 being of voting
age. See U.S. Census Bureau, My Congressional District, at
https://www.census.gov/mycd/?st=23&cd=02 (utilizing 2017 American Community
Survey Data).
33.

There were four candidates in the November 6 general election whose names

appeared on the ballot to represent Maine’s Second Congressional District. They were:
Republican Bruce Poliquin (the incumbent), Democrat Jared F. Golden, and
Independents Tiffany L. Bond and William R.S. Hoar. Dep’t of the Sec’y of State,
2018 – Final Candidate List, at https://www.maine.gov/sos/cec/elec/upcoming/201811FinalCandidateList.xlsx (last accessed Nov. 12, 2018).

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34.

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A complete version of the sample ballot, with instructions, is attached as

Exhibit A. In relevant part, the portion of the ballot that the voter was asked to complete
was as follows:

Dep’t of the Sec’y of State, State of Maine Sample Ballot General Election, November 6,
2018, at https://www.maine.gov/sos/cec/elec/upcoming/pdf/CD2.SampleBallot.pdf.

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35.

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The instructions provided to each voter on his or her ballot were as follows:

Instructions to Voters
To vote, fill in the oval like this ⬤
To rank your candidate choices, fill in the oval:
 In the 1st column for your 1st choice candidate.
 In the 2nd column for your 2nd choice candidate, and so on.
Continue until you have ranked as many or as few candidates as
you like.
Fill in no more than one oval for each candidate or column.
To rank a write-in candidate, write the person’s name in the writein space and fill in the oval for the ranking of your choice.

The instructions are vague and, for example, do not inform voters of the significance or
consequences of ranking a candidate as one’s first, second, third, or fourth choice.
Moreover, the instructions fail to explain that voters may be effectively disenfranchised
in later rounds of voting if they fail to rank all of the candidates.
36.

Tabulation of the results in other races on the same November 6 ballot (e.g., for

the Office of Governor) were governed by the plurality test rather than using the ranked
choice/instant-runoff voting rules that applied in the case of federal races. The Secretary
“called it a ‘distinct possibility’ that many people won’t know about the different voting
methods between the [federal and state] races,” and observers documented the “confusion
among voters” as to how the voting process would actually work. Michael Shepherd,
Mainers Are Using 2 Voting Methods This Year. It’s Causing Confusion, Bangor Daily
News (Oct. 26, 2018).

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37.

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While the Secretary of State’s Office has not published final results from the

initial round of voting, unofficially it appears that the results (to this point) are as follows:
Candidate

Votes

Percentage

Bruce Poliquin

130,916

46.3%

Jared Golden

128,915

45.6%

Tiffany Bond

16,088

5.7%

William Hoar

6,717

2.4%

Maine Election Results 2018, https://bangordailynews.com/maine-elections/state/ (last
accessed Nov. 12, 2018); see also Press Release, Secretary Dunlap Confirms:
Congressional District 2 Tabulation Will Go into Ranked-Choice Voting Rounds, Dep’t
of the Sec’y of State (Nov. 7, 2018), available at
https://www.maine.gov/sos/news/2018/rcvcongressdis2.html (providing vote totals
through November 7, 2018).
38.

Personnel with the Secretary of State’s Office have explained that, following a

final tally of all votes from the first round of balloting, if no candidate receives 50% of
the votes cast on the initial ballot, they will eliminate the candidates with the lowest vote
totals and reallocate the votes based on their voters’ second (and, in some cases, third)
preferences. See, e.g., Kevin Miller and Steve Collins, Nation’s Eyes on Maine As
Ranked Vote Tally Starts in 2nd District Race, Portland Press Herald, (Nov. 9, 2018.
Centralized ballot collection began last Thursday at the Elkins Building in Augusta. See
Press Release, Secretary Dunlap Confirms: Congressional District 2 Tabulation Will Go
into Ranked-Choice Voting Rounds. Tabulation of these ballots started on Friday,

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continued through the Saturday and Monday of the Veterans Day holiday weekend, and
will continue until the process is complete. See id.
39.

Absent relief from this Court, Defendants will continue to conduct future

elections in accordance with the same ranked choice procedures mandated by the RCV
Act.
CLAIMS FOR RELIEF
Count I (Violation of Article I, Section 2 of the United States Constitution)
40.

Plaintiffs incorporate each of the paragraphs above by reference as if fully set

forth herein.
41.

Article I, section 2, clause 1 of the United States Constitution provides that “[t]he

House of Representatives shall be composed of Members chosen every second Year by
the People of the several States.”
42.

This provision “has always been construed to mean that the candidate receiving

the highest number of votes at the general election is elected, although his vote be only a
plurality of all votes cast.” Phillips v. Rockefeller, 435 F.2d 976, 980 (2d Cir. 1970)
(emphasis added).
43.

By declining to recognize Bruce Poliquin as the winner after the first round of

balloting and certifying him as the Representative from Maine’s Second Congressional
District for the 116th Congress, the Secretary has and continues to violate Article I,
section 2, clause 1 of the United States Constitution.

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44.

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Plaintiff Bruce Poliquin is entitled to injunctive relief to prevent this injury and,

pursuant to 28 U.S.C. § 2201 and 2202, a declaration that he was “chosen . . . by the
People” at the November 6, 2018 election as the Representative from Maine’s Second
Congressional District for the 116th Congress.
Count II (Denial of an Effective Vote Under
the First Amendment, Due Process Clause, and 42 U.S.C. § 1983)
45.

Plaintiffs incorporate each of the paragraphs above by reference as if fully set

forth herein.
46.

The “foundation of our ‘democratic process’ is the right of all qualified voters to

cast their votes effectively,” Ayers-Schaffner v. DiStefano, 37 F.3d 726, 729 (1st Cir.
1994), with such right ranking “‘among our most precious freedoms,’” Libertarian Party
of Maine, Inc. v. Dunlap, No. 2:16-CV-00002-JAW, 2016 WL 3039715, at *4 (D. Me.
May 27, 2016) (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). Indeed, this Court
has repeatedly recognized the foundational nature of this principle. See, e.g., id.; Emrit v.
Dunlap, No. 1:17-CV-00402-GZS, 2018 WL 1321567, at *5 (D. Me. Mar. 14, 2018),
appeal dismissed, No. 18-1221, 2018 WL 4381529 (1st Cir. June 12, 2018); Stoddard v.
Quinn, 593 F. Supp. 300, 303 (D. Me. 1984); Anderson v. Quinn, 495 F. Supp. 730, 732
(D. Me. 1980). As a matter of federal constitutional law, the right to cast an effective
vote is a fundamental right protected by the First and Fourteenth Amendments to the
United States Constitution.
47.

Here, Defendant’s implementation of the RCV Act denies Plaintiffs the

opportunity to cast their votes effectively. At the time Plaintiffs cast their ballots in this
election, and at the time they will cast their ballots in future elections, they do not know

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the identities of the candidates who are on the ballot, nor the match-ups of candidates
who will be on the ballot, after the first round of voting.
48.

The lack of access to such basic information about which candidates will be on

the ballot and the match-up of candidates who will be on the ballot prevents Plaintiffs
from choosing among candidates and casting their votes effectively, causing them
irreparable injury under the First and Fourteenth Amendments to the U.S. Constitution.
Since no other adequate remedy at law is available, Plaintiffs are entitled to preliminary
and permanent injunctive relief to prevent this injury.
49.

The challenged law also establishes an actual controversy concerning the federal

law rights and legal relations of Plaintiffs with the Defendant, thus entitling Plaintiffs to a
declaratory judgment under 28 U.S.C. § 2201 and appropriate supplemental relief under
section 2202.
Count III (Violation of the Voting Rights Act)
50.

Plaintiffs incorporate each of the paragraphs above by reference as if fully set

forth herein.
51.

The Voting Rights Act prohibits any state official from “fail[ing] . . . to permit

any person to vote who is entitled to vote . . . or is otherwise qualified to vote”).
52 U.S.C. § 10307(a). “Vote” is defined as “all action necessary to make a vote effective
in any primary, special, or general election, including, but not limited to . . . casting a
ballot.” Id. § 10310(c)(1) (emphasis added).

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52.

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For example, the Voting Rights Act requires measures to assist voters in casting

knowledgeable votes, such as through the provision of language-appropriate ballots.
53.

Here, Defendant’s implementation of the RCV Act denies Plaintiffs the

opportunity to cast their votes effectively in violation of the federal Voting Rights Act.
At the time Plaintiffs cast their ballots in this election, and at the time they will cast their
ballots in future elections, they do not know the identities of the candidates who are on
the ballot, nor the match-ups of candidates who will be on the ballot, after the first round
of voting.
54.

While most states use a single-ballot, plurality system to elect candidates for

federal office, a minority of states – mostly in the South – have required candidates to
win a run-off election if they do not exceed 50% of the votes cast on the initial ballot.
See, e.g., Nat’l Conference of State Legislatures, Primary Runoffs, at
http://www.ncsl.org/research/elections-and-campaigns/primary-runoffs.aspx (last
accessed Nov. 12, 2018). Observers have noted that the “runoff system is a vestige of a
time when white Democrats controlled Southern politics[] and manipulated election rules
to make sure they stayed in power.” Reid Wilson, Runoff Elections a Relic of the
Democratic South, Wash. Post, June 4, 2014.
55.

The lack of access to such basic information about which candidates will be on

the ballot prevents Plaintiffs from casting their vote knowledgeably and effectively,
causing them irreparable injury under the Voting Rights Act. Since no other adequate
remedy at law is available, Plaintiffs are entitled to preliminary and permanent injunctive
relief to prevent this injury.

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56.

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The challenged law also establishes an actual controversy concerning the federal

law rights and legal relations of Plaintiffs with the Defendant, thus entitling Plaintiffs to a
declaratory judgment under 28 U.S.C. § 2201 and appropriate supplemental relief under
section 2202.
Count IV (Denial of Right to Vote for Candidate of Voter’s Own Choice Under the
First Amendment, Due Process Clause, and 42 U.S.C. § 1983)
57.

Plaintiffs incorporate each of the paragraphs above by reference as if fully set

forth herein.
58.

Implicit in the constitutional right to vote is a right to vote for a candidate of the

voter’s own choice.
59.

The right to vote for a candidate of the voter’s own choice includes the right to

vote strategically or tactically to advance a weaker candidate to a subsequent election or
round of voting so that the voter’s actual preferred candidate will have a better chance of
ultimately winning.
60.

Here, Defendant’s implementation of the RCV Act denies Plaintiffs from voting

for a weaker candidate where it appears an election will not be decided on the initial
round of ballot counting. Specifically, if a voter were to vote for what the voter perceives
as the weaker candidate as the voter’s first-ranked choice, the voter does not have a
chance to vote against that candidate in subsequent rounds of vote counting and to vote
for the voter’s actual preferred candidate. Conversely, if a voter were to vote for what the
voter perceives as the weaker candidate by ranking that candidate lower on the voter’s

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ballot, that would simply diminish the candidate from advancing in subsequent rounds of
vote counting.
61.

The inability for voters to vote strategically or tactically under the RCV Act

causes them irreparable injury under the First and Fourteenth Amendments to the U.S.
Constitution. Since no other adequate remedy at law is available, Plaintiffs are entitled to
preliminary and permanent injunctive relief to prevent this injury.
62.

The challenged law also establishes an actual controversy concerning the federal

law rights and legal relations of Plaintiffs with the Defendant, thus entitling Plaintiffs to a
declaratory judgment under 28 U.S.C. § 2201 and appropriate supplemental relief under
section 2202.
Count V (General Denial of Due Process and Violation of 42 U.S.C. § 1983)
63.

Plaintiffs incorporate each of the paragraphs above by reference as if fully set

forth herein.
64.

Defendant’s implementation of the RCV Act denies Plaintiffs’ their right to due

process of law guaranteed by the Fourteenth Amendment to the U.S. Constitution in that
implementation of the RCV Act results in fundamental unfairness and arbitrariness in the
vote-counting process.
65.

Among other infirmities, ranked choice voting/instant-runoff voting can

arbitrarily distort majority will in elections and can cause a voter’s vote for a particular
candidate to reduce that candidate’s electoral chance to win. This phenomenon, unique
to ranked choice voting/instant-runoff voting, constitutes fundamentally unfair treatment

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of votes. Expert Witness Statement of Jason Sorens at 7 (attached to accompanying
Motion for Preliminary Injunction).
66.

Defendant’s implementation of the RCV Act thus irreparably injures Plaintiffs by

denying them their right to due process under the laws under the Fourteenth Amendment.
Since no other adequate remedy at law is available, Plaintiffs are entitled to preliminary
and permanent injunctive relief to prevent this injury.
67.

The challenged law also establishes an actual controversy concerning the federal

law rights and legal relations of Plaintiffs with the Defendant, thus entitling Plaintiffs to a
declaratory judgment under 28 U.S.C. § 2201 and appropriate supplemental relief under
section 2202.
Count VI (Denial of Equal Protection and Violation of 42 U.S.C. § 1983)
68.

Plaintiffs incorporate each of the paragraphs above by reference as if fully set

forth herein.
69.

Defendant’s implementation of the RCV Act denies Plaintiffs’ right to equal

protection of the law guaranteed by the Fourteenth Amendment to the U.S. Constitution
in two fundamental ways. First, Plaintiffs’ votes are diluted by the multiple votes that
others are able to cast for different individuals running for the same office. Here, for
example, while Plaintiffs voted for one candidate – i.e., Bruce Poliquin – ranked choice
voting permits other voters to change their votes several time and cast ballots for three
different candidates in the same election by listing William Hoar as their first choice,
Tiffany Bond as their second, and Jared Golden as their third. Second, the RCA Act’s
decision to discard exhausted ballots – i.e., those that fail to rank all of the candidates –

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means that some voters will be deprived of the opportunity to participate in later rounds
of voting in violation of their constitutional right to do so.
70.

In many cases, voters’ ballots will be exhausted, and the voter effectively

disenfranchised, because the voter is deprived of actual knowledge of the identities of the
candidates who will be standing for election on a second or third match-up.
71.

Defendant’s implementation of the RCV Act thus irreparably injures Plaintiffs by

denying them their right to equal protection under the laws under the Fourteenth
Amendment. Since no other adequate remedy at law is available, Plaintiffs are entitled to
preliminary and permanent injunctive relief to prevent this injury.
72.

The challenged law also establishes an actual controversy concerning the federal

law rights and legal relations of Plaintiffs with the Defendant, thus entitling Plaintiffs to a
declaratory judgment under 28 U.S.C. § 2201 and appropriate supplemental relief under
section 2202.
PRAYER FOR RELIEF
Plaintiffs pray for the following relief:

A.

A declaration that the RCV Act violates the U.S Constitution, the Voting
Rights Act, and 42 U.S.C. § 1983;

B.

A preliminary and permanent injunction: (1) prohibiting the Defendant,
and all persons under his direction, supervision, or control, from taking
any steps to enforce or apply the RCV Act to determine the winner of the

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November 6 general election for U.S. Representative from Maine’s
Second Congressional District or in connection with any other future
election for such office; (2) requiring the Defendant, and all persons
operating under his direction, supervision, or control, to determine the
winner of the November 6 general election for U.S. Representative from
Maine’s Second Congressional District, and all future elections for such
office, based on the results of the first tabulation of ballots;
C.

An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and

D.

Any other relief, at law or in equity, to which Plaintiffs may be entitled.

Dated: November 13, 2018

Respectfully submitted,
/s/ Lee E. Goodman
Lee E. Goodman (pro hac vice pending)
Andrew G. Woodson (pro hac vice pending)
Eric Wang (pro hac vice pending)
WILEY REIN LLP
1776 K Street, NW
Washington, D.C. 20006
Phone: (202) 719-7000
Fax: (202) 719-7049
lgoodman@wileyrein.com
awoodson@wileyrein.com
ewang@wileyrein.com
/s/ Joshua A. Tardy_____________
Joshua A. Tardy, Esq.
Joshua A. Randlett, Esq.
RUDMAN WINCHELL
84 Harlow Street; P.O. Box 1401
Bangor, ME 04402-1401
Phone: (207) 997-4501
jtardy@rudmanwinchell.com
jrandlett@rudmanwinchell.com
Attorneys for Plaintiffs

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