Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 1 of 20

PageID #: 376

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRETT BABER, et al.,
Plaintiffs,
v.
MATTHEW DUNLAP,
Defendant.

)
)
)
)
)
)
)
)
)

No. 1:18-CV-00465-LEW

DEFENDANT-INTERVENOR GOLDEN’S MEMORANDUM OF LAW IN
OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65(b)(1), Plaintiffs Brett Baber, Terry Hamm-Morris, Mary
Hartt, and Bruce Poliquin (collectively “Poliquin”) seek a preliminary injunction (“Poliquin
Motion”) requiring the Secretary of State, Defendant Matthew Dunlap, to ignore the final results
of the ranked choice election for Maine’s Second Congressional District, and to certify Bruce
Poliquin as the winner of that election. Defendant-Intervenor Jared Golden, who a majority of the
voters in the Second Congressional District preferred over Poliquin, hereby opposes this
extraordinary attempt to overturn the results of a fair and free election.
As this Court concluded when it denied Poliquin’s motion for a temporary restraining order
(TRO Order, ECF No. 26), Poliquin is unlikely to prevail on any of his federal constitutional and
statutory challenges. The U.S. Constitution expressly grants states expansive authority to conduct
federal elections and to select the method to decide the winner, and Maine voters have selected
ranked choice voting (“RCV”) to determine the winners of federal elections. Now, after 296,077
Maine citizens have voted based on their understanding that the RCV system would be used to
determine the winner of the election, Poliquin would like to change the rules. Poliquin’s sour
grapes preliminary injunction is too little, too late, and is outweighed by the injury to the thousands

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 2 of 20

PageID #: 377

of Maine voters who selected Golden over Poliquin and who would be disenfranchised by
Poliquin’s attempt to use the courts to overturn the results of the election. Further, the chaos,
disruption, and violation of fundamental rights that would result from Poliquin’s attempt to rewrite the rules after the election is anathema to the public interest. Golden won the election fair
and square, and Poliquin’s attempt to overturn that result should be rejected.
BACKGROUND
In order to appreciate why Poliquin’s post-election challenge to the RCV system is both
too late and constitutionally baseless, it is helpful first to consider the extensive timeline of efforts
to adopt the RCV system and the repeated legal challenges to the RCV process prior to the election,
none of which Poliquin chose to participate in.
On November 8, 2016, 388,273 Maine voters (52.1%) passed a referendum to use RCV
for elections beginning in 2018. Secretary of State, Timeline of Ranked-Choice Voting, available
at https://www.maine.gov/sos/cec/elec/upcoming/pdf/RCVTimelinefinal62618.pdf; see also
Maine Senate v. Sec’y of State, 183 A.3d 749, 751–52 (Me. 2018). The Maine Senate subsequently
requested an opinion from the Maine Supreme Court on the constitutionality of RCV under the
Maine Constitution. See Op. of the Justices, 162 A.3d 188, 193 (Me. 2017). The Justices concluded
in a non-binding Opinion that in the general elections for State Representative, State Senator, and
Governor, RCV violated the Maine Constitution because the Constitution explicitly required that
the winner in those races obtain only a plurality of the electorate. See id. at 209-10. However, the
Justices did not opine that the RCV system was unconstitutional in federal congressional races
because the Maine Constitution does not say anything about the requirements for election of a
Congressman. Following Opinion of the Justices, the Legislature passed a bill to “implement” the

2

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 3 of 20

PageID #: 378

ranked choice voting referendum, which delayed the effective date of RCV and added a contingent
repeal. L.D. 1646 (128th Legis. 2017); see also Maine Senate, 183 A.3d at 752-753.
Maine voters again demanded that RCV take effect immediately, despite the Legislature’s
attempts at delay. On February 2, 2018, advocates submitted over 66,000 signatures of Maine
voters to submit to the voters a peoples’ veto of the Legislature’s “implementing” statute. See
Sec’y of State, Ranked-choice voting people’s veto effort found valid with 66,687 signatures, Mar.
5, 2018, available at https://www.maine.gov/sos/news/2018/rankchoicesigs.html; Maine Senate,
183 A.3d at 753. On June 12, 2018, 149,900 Maine voters (53.1%) passed the people’s veto,
thereby mandating use of RCV in federal elections and primaries, including the general election
in November 2018. Sec’y of State, Tabulations for elections held June 12, 2018, available at
https://www.maine.gov/sos/cec/elec/results/results18.html#ref.
While this legislative action was pending, numerous court cases were brought challenging
the use of RCV, none of which Poliquin participated in, and all of which affirmed the
constitutionality of RCV for congressional elections. First, on February 16, 2018, the Committee
on Ranked Choice and certain candidates filed suit seeking to compel the Secretary of State to
utilize RCV in the up-coming primary election. Comm. for Ranked Choice Voting v. Sec'y of State,
AUGSC–CV–2018–24 (Me. Super. Ct., Kennebec Cty., Apr. 3, 2018); see also Maine Senate, 183
A.3d at 753. These plaintiffs filed a motion for a TRO, and on April 3, Superior Court Justice
Murphy ordered “the Secretary of State’s Office to continue implementation of the system of
ranked-choice voting for the June 12, 2018 primary election.” Comm. for Ranked–Choice Voting,
AUGSC–CV–2018–24, at 13-14; see also Maine Senate, 183 A.3d at 754. No appeal was filed
from that order. Maine Senate, 183 A.3d at 754.

3

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 4 of 20

PageID #: 379

The Maine Senate then brought suit seeking to halt the use of RCV. This litigation was
originally brought on April 3, and Superior Court Justice Murphy certified seven questions to the
Law Court pursuant to M.R. App. P. 24(a) on April 11. Id. On April 17, the Law Court ruled
against the Maine Senate and directed that RCV be used for the June 2018 primary, including for
congressional races. Id at 759. Poliquin again did not join this litigation.
The Maine Republican Party then filed suit in federal court, challenging the use of RCV in
the up-coming primary election. Although all the grounds asserted in this lawsuit could have been
asserted there, none were. Poliquin again did not join this litigation. See Maine Republican Party,
324 F. Supp. 3d 202 (D. Me. 2018). On May 29, Judge Levy denied the Maine Republican Party’s
motion for a preliminary injunction, allowing RCV to be used for the upcoming congressional
primary election. See id at 214. The Maine Republican Party did not pursue an appeal of this
decision.
Maine voters used RCV in both the primary and general elections. First, on June 12, the
Secretary of State used RCV to tabulate the results of the Democratic primaries for Governor and
the Second Congressional District, as no candidate in either race received over 50% of the vote in
the first round. See Kevin Miller, With 54%, Janet Mills wins Democratic nomination in race for
Maine

governor,

Portland

Press

Herald,

June

20,

2018,

available

at

https://www.pressherald.com/2018/06/20/ranked-choice-voting-tabulation-to-start-at-6-p-m/.
Even though his principal opponent had been selected using RCV and RCV would be used to
determine the winner of the general election, see Steve Collins, Ranked-choice voting likely to
determine outcome of 2nd District U.S. House race, polls find, Lewiston Sun-Journal, Sept. 25,
2018, available at https://www.centralmaine.com/2018/09/25/ranked-choice-voting-likely-todetermine-outcome-of-2nd-district-u-s-house-race-polls-find/, Poliquin did not bring suit after the

4

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 5 of 20

PageID #: 380

primary or before the general election. On November 6, Maine conducted the election for Maine’s
Second Congressional District and presented voters with a ballot that asked them to rank their
preferences for Golden, Poliquin, Tiffany Bond, and William Hoar. Sec’y of State, Nov. 6, 2018,
General Election - Ranked-choice office, available at https://www.maine.gov/sos/cec/
elec/results/index.html. The next day, based on media reports, the Secretary of State confirmed
that no candidate received more than 50% of the vote based on municipalities’ reports of firstround results, and directed the tabulation of results using the RCV system. See Sec’y of State,
Secretary Dunlap confirms: Congressional District 2 tabulation will go into ranked-choice voting
rounds, Nov. 7, 2018, available at https://www.maine.gov/sos/news/2018/rcvcongressdis2.html;
Aff. of Dep. Sec’y of State Julie L. Flynn (“Flynn Affidavit”), ECF No. 24, ¶ 8. After this Court
denied Poliquin’s motion for a TRO, the Secretary of State ran the ranked choice tabulation of the
296,077 votes cast and declared Golden the winner with 142,440 votes over Poliquin with 138,931
votes. See Sec’y of State, Representative to Congress – District 2 – Results Certified to the
Governor

11/26/18,

Nov.

27,

2018,

available

at

https://www.maine.gov/sos/cec/elec/results/2018/updated-summary-report-CD2.xls.
ARGUMENT
I.

Legal Standard
“[Injunctive relief] is an extraordinary and drastic remedy that is never awarded as of

right.” TRO Order, ECF No. 26 at 5 (citations omitted); accord Maine Republican Party, 324 F.
Supp. 3d at 206. “To obtain a preliminary injunction, the moving party must establish: “(1) a
likelihood of success on the merits, (2) a likelihood of irreparable harm absent interim relief, (3) a
balance of equities in [its] favor, and (4) service of the public interest.” Maine Republican Party,

5

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 6 of 20

PageID #: 381

324 F. Supp. 3d at 206 (quoting Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794
F.3d 168, 171 (1st Cir. 2015)). Poliquin cannot satisfy any of these four requirements.
II.

Poliquin Cannot Establish a Likelihood of Success on the Merits.
Before turning to the specifics of Poliquin’s various challenges, it is important to note, as

both this Court and the Maine Supreme Court have previously, that this case is not about whether
RCV is a good idea. See Op. of the Justices, 162 A.3d at 198; TRO Order, ECF No. 26 at 15-16.
Maine voters have affirmed their desire to use RCV to pick their representatives. The only question
before this Court is whether the choice made by Maine voters violates federal law. Each of
Poliquin’s constitutional and statutory challenges falls short of the mark.
A.

Poliquin is Unlikely to Prevail on a Challenge that the U.S. Constitution
Expressly Prohibits the Use of Ranked Choice Voting.

Poliquin’s contention that the U.S. Constitution prohibits RCV finds no support in the
Constitution’s plain language. Article I, Section 2 of the Constitution provides that the “House of
Representatives shall be composed of Members chosen every second Year by the People of the
several States,” and that “[n]o Person shall be a Representative who shall not have attained to the
Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State in which he shall be chosen.“ There is nothing in
Article I, Section 2 about the manner in which such Members shall be “chosen,” and the Supreme
Court’s holding that States cannot impose additional qualifications on a congressional candidate
in light of the express provisions of the Qualifications Clause, see U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779 (1995), does nothing to alter that fact.
Rather than mandating the method of selection of congressional representatives, the
Constitution, through the Elections Clause, provides States expansive power to experiment in the
method of selection of their representatives, precisely what Maine has chosen to do through the
6

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 7 of 20

PageID #: 382

RCV system. The Elections Clause provides that “[t]he Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the
places of ch[oo]sing Senators.” U.S. Const. Art. I, § 4, cl. 1. “The Clause’s substantive scope is
broad,” as times, places, and manner are “‘comprehensive words,’ which ‘embrace authority to
provide a complete code for congressional elections[.]’” Arizona v. Inter-Tribal Council of
Arizona, Inc., 570 U.S 1, 8-9 (2013) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)) (citations
omitted) (quotation marks omitted). The Smiley Court specifically stated that this authority
included the “counting of votes” in congressional elections. See Smiley, 285 U.S. at 366. Indeed,
by granting states autonomy, the Founders explicitly encouraged the states to experiment with
different approaches. The Supreme Court “has ‘long recognized the role of the States as
laboratories for devising solutions to difficult legal problems.’” Arizona State Legislature v.
Arizona Independent Redistricting Com’n, 135 S. Ct. 2652, 2673 (2015) (quoting Oregon v. Ice,
555 U.S. 160, 171 (2009)) (citation omitted). Experimentation such as that undertaken by Maine
through the use of RCV is thus a goal and not a side-effect of our constitutional system. Poliquin
can identify no constitutional text to the contrary.
Given that the Constitution explicitly permits Maine to enact a system such as RCV, it is
unsurprising that Poliquin’s arguments lack support from any precedent that has even remotely
touched on the issue. Poliquin seeks to support his argument by pointing to a quote from Phillips
v. Rockefeller, 435 F.2d 976, 980 (2d Cir. 1970), stating that Article I, Section 2 “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.” See Poliquin Mot. at 7. But this
simply states a historical fact; the Second Circuit did not state that a plurality was required, only

7

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 8 of 20

PageID #: 383

that that “language [of Article I, Section 2] ha[s] permitted elections by a plurality.” 435 F.2d at
980 (emphasis added). By contrast, in Public Citizen v. Miller, 992 F.2d 1548 (11th Cir. 1993)
(per curiam), the Eleventh Circuit affirmed a district court order rejecting Poliquin’s precise
argument. The plaintiffs argued that Georgia’s run-off statute, which required candidates to obtain
a majority to be elected, violated the Qualifications Clause by adding a requirement “that a
candidate receive a majority of the votes cast.” 813 F. Supp. 821, 831 (N.D. Ga. 1993). After
noting that “the requirement that a candidate receive a majority of the vote is merely a restatement
of the truism that in a race between two people the person who receives the most votes wins,” id.
at 832, the district court held:
[T]he majority vote statute is more accurately interpreted as a method for
construing the meaning of the votes cast than as a way of describing the candidates
involved in the campaign. If the Court were to find that this method of construing
the meaning of votes cast in an election is an unconstitutional “qualification” for
the office, it would be hard pressed not to find a state law requiring that a candidate
receive a plurality of the votes cast similarly infirmed.
Id. at 833; see also Bond v. Fortson, 334 F. Supp. 1192, 1193 (N.D. Ga. 1971), aff’d, 404 U.S. 930
(1971) (“[T]here is no constitutional provision expressly providing for election of Congressmen
by plurality vote or in terms prohibiting the states from requiring election by a majority vote.”).
As Poliquin’s counsel acknowledged at oral argument, acceptance of his argument would
render unconstitutional any form of voting other than a plurality, which would wipe out election
systems around the country in favor of a one-size-fits-all approach that would be generated from
the ether and grafted onto the Constitutional text. See Hr’g Tr. (“Tr.”) at 86-88. This is an
extraordinary request, particularly where, as this Court observed, “it appears that both majority
and plurality standards have historical antecedents in American politics.” TRO Order, ECF No. 26
at 7. In fact, states have adopted and currently employ a wide variety of approaches to counting
ballots to determine the winner of elections, and Poliquin cannot point to any text or decision
8

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 9 of 20

PageID #: 384

finding these methods constitutionally suspect. See Jeffrey C. O’Neill, Everything That Can Be
Counted Does Not Necessarily Count: the Right to Vote and the Choice of a Voting System, 2006
Mich. St. L. Rev. 327, 329 (2006) (“In electing public officials in the United States, state and local
governments use a variety of different voting systems. Voting systems currently in use include
plurality voting, runoff voting, instant runoff voting, at-large voting, limited voting, cumulative
voting, and the single transferable vote.”) (footnote omitted).
Further, the fact that Maine voters have explicitly chosen to employ RCV, and reaffirmed
that choice, weighs heavily in favor of finding that the method comports with the requirement of
election “by the people” in every sense of the phrase. As this Court noted in its order denying
Poliquin’s request for a TRO, the Phillips court found significant the fact that the state had
explicitly provided for the method of election at issue in that case, and thus the method was in
accord with the requirement of election “by the people.” TRO Order, ECF No. 26 at 7 n.3 (citing
Phillips, 435 F.2d at 980). Much the same is true here—through multiple referenda, “the people”
of Maine have made clear their preferred method of electing members of Congress. Poliquin has
failed to demonstrate any basis to hold that method unconstitutional.
B.

Poliquin is Unlikely to Prevail on His Equal Protection Challenge to Ranked
Choice Voting.

Every Court to consider the issue has rejected Poliquin’s argument that RCV violates the
Equal Protection Clause of the U.S. Constitution. See Dudum v. Arntz, 640 F.3d 1098 (9th Cir.
2011); Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009);
McSweeney v. City of Cambridge, 665 N.E.2d 11 (Mass. 1996); Stephenson v. Ann Arbor Bd. of
City Canvassers, No. 75-10166-AW (Mich. Cir. Ct. 1975) (attached as Ex. A). The reason for
these uniform court decisions is simple: there is no arguable basis for an equal protection claim
here. Every voter in an RCV system has the same rights and is treated exactly the same. Poliquin’s
9

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 10 of 20

PageID #: 385

argument amounts to the contention that a runoff system is unconstitutional if some voters do not
choose to vote in the runoff election, which no court has ever held. Despite this overwhelming
case law, Poliquin contends that Maine’s RCV system violates equal protection by allowing some
votes to be counted more than once or weighted more significantly. But this argument
fundamentally misconstrues the nature of RCV. “[I]n actuality, all voters participating in a
restricted [RCV] election are afforded a single and equal opportunity to express their preferences
for three candidates; voters can use all three preferences, or fewer if they choose.” Dudum, 640
F.3d at 1107; see also Minnesota Voters Alliance, 766 N.W.2d at 693 (“Every voter has the same
opportunity to rank candidates when she casts her ballot, and in each round every voter’s vote
carries the same value.”); McSweeney, 665 N.E.2d at 14 (“[I]t would be misleading to say that
some ballots are counted two or more times. Although these ballots are examined two or more
times, no ballot can help elect more than one candidate.”). Poliquin’s argument for an equal
protection violation has no basis in fact or in law.
C.

Poliquin is Unlikely to Prevail on His Due Process Challenge to Ranked
Choice Voting.

Poliquin’s argument that RCV violates the Due Process Clause fares no better than his
other constitutional arguments and makes even less sense. See Poliquin Mot. at 17-18. Courts
“apply a ‘flexible standard’ when considering constitutional challenges to election regulations,”
Dudum, 640 F.3d at 1106 (quoting Burdick, 504 U.S. at 433) and, “[w]here non-severe, ‘[l]esser
burdens’ on voting are at stake, [courts] apply ‘less exacting review, and a State’s important
regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.’”
Id. (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)) (citation omitted).
Contrary to Poliquin’s assertion, no court has ever applied strict scrutiny to evaluate any of the
alleged burdens imposed by an RCV system, see Poliquin Mot. at 15-17, and indeed it is hard to
10

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 11 of 20

PageID #: 386

see what “burden” the system imposes at all. Every voter shows up to vote in the same manner as
they have previously, and they just fill out their ballot in a certain way. There is no obvious
“burden” at all, and there are numerous state interests served by the RCV system. See, e.g.
Minnesota Voters Alliance, 766 N.W.2d at 697 (Because the citizens adopted the RCV system by
referendum, it “serves the purpose of respecting the democratic process”); id. (By requiring only
one election, RCV system “reduces the inconvenience and costs to voters, candidates, and
taxpayers” compared to a run-off); Dudum, 640 F.3d at 1116 (RCV “provid[es] voters an
opportunity to express nuanced voting preferences and elect[] candidates with strong plurality
support,”); McSweeney, 665 N.E.2d at 15 (“[A] preferential scheme, far from seeking to infringe
on each citizen’s equal franchise, seeks more accurately to reflect voter sentiment[.]”).
Poliquin seeks to counter all this by attempting to elevate the academic concept of “nonmonoticity” to a constitutional mandate. Poliquin, however, does not and cannot point to any
principle of case law or logic for why this alleged phenomenon constitutes a due process violation.
The theory of “non-monoticity,” and Poliquin’s claim, both boil down to the contention that certain
voters would choose to vote strategically in a traditional run-off in order to maximize their
preferred candidate’s chances of winning, but that, because these voters cannot utilize the same
strategy in an RCV system, such a system violates their due process rights. Poliquin offers no
evidence that this occurred, no case where such voters were found to be part of a protected class,
and he cannot point to any evidence of invidious intent on the part of the state of Maine. As this
Court noted in its denial of Poliquin’s request for a TRO, “[t]he Fourteenth Amendment does not
regard neutral laws as invidious ones, even when their burdens purportedly fall disproportionately
on a protected class. A fortiori it does not do so when, as here, the classes complaining of disparate
impact are not even protected.” TRO Order, ECF No. 26 at 10–11.

11

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 12 of 20

PageID #: 387

Further, Poliquin’s argument boils down to a normative criticism of RCV, but such
criticisms do not make a system unconstitutional. The Due Process Clause does not require
perfection, and Poliquin cannot point to any voting system that has been invalidated on similar
grounds. Indeed, under Poliquin’s legal theory any set of voters whose particular goals in voting
were frustrated by any election system, including plurality voting, would be able to invalidate that
system of voting on constitutional grounds. This cannot be, and is not, the law.
D.

Poliquin is Unlikely to Prevail on a Voting Rights Act Challenge to Ranked
Choice Voting.

Poliquin next argues that RCV violates the Voting Rights Act (“VRA”), see Poliquin Mot.
at 8-13, but this Court rightly rejected the notion that Poliquin is likely to succeed on the merits of
this claim once already, see TRO Order, ECF No. 26 at 12–13, and should do so again in the
current posture. As the Court noted, the VRA is aimed at abridgment of the right to vote based on
race or color. See TRO Order, ECF No. 26 at 12–13 n.10 (citing 52 U.S.C. § 10301(a)). Poliquin
has made no showing that the use of RCV intentionally discriminates based on race, save for a
passing mention that RCV results in more improperly marked ballots than a plurality election, and
that these ballots disproportionately come from minority voters. See Poliquin’s Mot. at 4. Poliquin
offers not a scintilla of evidence that the use of RCV in Maine even arguably discriminates on the
basis of race or color.
Further, to the extent that Poliquin seeks to invoke the provision proscribing the failure or
refusal “to permit any person to vote who is entitled to vote, or willfully fail or refuse to tabulate,
count, and report such person’s vote,” 52 U.S.C. § 10307, he has likewise offered no evidence to
make such a showing. His argument is that Section 10307 is somehow violated because RCV
presents a barrier to a certain form of “strategic” voting, but, as Poliquin himself points out, the
cases analyzing the right to an “effective” vote focus on the right to voter assistance with tasks
12

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 13 of 20

PageID #: 388

such as reading or interpreting a ballot. See Poliquin’s Mot. at 9. Poliquin points to no case where
the right to an “effective” vote under the VRA has been interpreted to mean a right to a voting
system optimized to a voter’s preferred electoral strategy. Poliquin’s VRA claim fails.
***
Given this unanimity of unquestioned authority, Poliquin has shown no likelihood of
success on the merits. Without a likelihood of success on merits, he is not entitled to a preliminary
injunction. See Doe v. Perille, 2018 WL 5817024, *3 (D. Mass. Nov. 6, 2018) (“Although the
Court considers all factors of the injunctive relief analysis, ‘[t]he sine qua non of this four-part
inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is
likely to succeed in his quest, the remaining factors become matters of idle curiosity.’”) (quoting
New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)) (other citation
omitted); accord TRO Order, ECF No. 26 at 5–6.
III.

Poliquin Cannot Demonstrate Irreparable Harm.
Even if Poliquin could establish a likelihood of success on the merits—which he cannot—

that is not enough. “As a matter of equitable discretion, a preliminary injunction does not follow
as a matter of course from a plaintiff’s showing of a likelihood of success on the merits.” Benisek
v. Lamone, 138 S. Ct. 1942, 1943-44 (2018). “Rather, a court must also consider whether the
movant has shown ‘that he is likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an injunction is in the public interest.’” Id. at
1944 (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)).
Poliquin cannot point to any proof of irreparable harm. The declarations he submits simply
allege without any explanation that the affiants would suffer “irreparable injury.” See ECF Nos.
13-1, 15. Merely parroting the preliminary injunction standard is not nearly enough to demonstrate

13

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 14 of 20

PageID #: 389

irreparable harm. See, e.g., Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30-31 (1st Cir.
1998); Church of Scientology Intern. v. U.S. Dept. of Justice, 30 F.3d 224, 231 (1st Cir. 1994).
Further, Poliquin’s claims of irreparable harm are undercut, and the relief he seeks barred,
by his unreasonable delay. “[A] party requesting a preliminary injunction must generally show
reasonable diligence.” Benisek, 138 S. Ct. at 1944 (citation omitted). “That is as true in election
law cases as elsewhere.” Id. Poliquin’s delay in bringing suit is the quintessential case for the
doctrine of laches to prevent him from being entitled to relief. Laches “requires proof of (1) lack
of diligence by the party against whom the defense is asserted, and (2) prejudice to the party
asserting the defense.” Museum of Fine Arts, Bos. v. Seger–Thomschitz, 623 F.3d 1, 10 n.9 (1st
Cir. 2010) (quoting Costello v. United States, 365 U.S. 265, 282 (1961)). Both elements are easily
met here.
Poliquin’s alleged harm results from his own participation in this RCV election, in which
the rules were clear. He chose not to challenge those rules in advance. As noted above, Poliquin
chose to sit out at least three cases challenging the use of RCV in this very election filed prior to
the election. See Op. of the Justices, 162 A.3d at 188; Maine Senate, 183 A.3d at 749; Maine
Republican Party, 324 F. Supp. 3d at 202. Any claims Poliquin makes that he could not challenge
RCV prior to the election are undercut by his counsel’s argument to this Court at oral argument
that it was the “process” of RCV which caused irreparable injury. See Tr. 81-82. The RCV
“process” was the law of the land after this Court rejected the prior constitutional challenge in May
2018, after the voters again approved the use of RCV in June 2018, and, at latest, after the results
of the primary election in June 2018 established that there were going to be four candidates for the
Second Congressional District general election. At that point, Poliquin was obligated to bring his
challenge based on his purported concerns about the “process” of RCV.

14

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 15 of 20

PageID #: 390

[T]he law imposes the duty on parties having grievances based on discriminatory
practices to bring the grievances forward for pre-election adjudication. . . . [T]he
failure to require prompt pre-election action in such circumstances as a prerequisite
to post-election relief may permit, if not encourage, parties who could raise a claim
to lay by and gamble upon receiving a favorable decision of the electorate and then,
upon losing, seek to undo the ballot results in a court action.
Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973) (quotations omitted); see also Respect Maine
PAC v. McKee, 622 F.3d 13, 16 (1st Cir. 2010) (“In determining the weight to be accorded to the
appellants’ claims, we also note that this ‘emergency’ is largely one of their own making.”). As
Judge Woodcock has observed, “[t]here is no constitutional right to procrastinate.” Dobson v.
Dunlap, 576 F. Supp. 2d 181, 188 (D. Me. 2008) (brackets added) (denying preliminary injunction
in election case filed in August before November election based on laches); see also League of
Women Voters v. Diamond, 923 F. Supp. 266, 275 (D. Me. 1996).
The prejudice to Golden and the voters who supported him resulting from Poliquin’s delay
is also readily apparent. Without a whisper of protest or objection, Poliquin permitted 296,077
Maine citizens to vote using the RCV rules, which they rightly understood to be the law of the
land. Asking for a “retroactive change in the election laws,” as Poliquin does, “implicate[s]
fundamental fairness issues” for both candidates and the voters who support them. Roe v. State of
Ala. By & Through Evans, 43 F.3d 574, 581 (11th Cir. 1995); see also Brown v. O'Brien, 469 F.2d
563, 569 (D.C. Cir. 1972), vacated as moot, 409 U.S. 816 (1972) (“If the party had adopted [the
rule change] prior to the . . . primary election, the candidates might have campaigned in a different
manner . . . Voters might have cast their ballots for a different candidate; and the State of California
might have enacted an alternative delegate selection scheme . . .” (footnote omitted)). Poliquin’s
proposed remedy—a judicial declaration that he is the winner of the election—seeks to change the
rules after the game has already been played. His inexcusable delay is prejudicial to Jared Golden
and to every Maine voter who utilized RCV in the Second Congressional District election because
15

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 16 of 20

PageID #: 391

they believed it to be the law of the land. That delay, without more, forecloses his attempt to reverse
the outcome of the election after the fact.
IV.

Poliquin Cannot Establish that the Balance of Equities Supports a Preliminary
Injunction.
Even if Poliquin could establish some injury—which he cannot—the substantial injury to

Golden, the voters who utilized RCV, and the electoral process itself vastly outweigh Poliquin’s
purported injury, making the balance of equities weigh strongly against the preliminary injunction
Poliquin seeks. Changing the rules after the election would have the effect of disenfranchising the
voters who participated in the election relying upon those rules. See Roe 43 F.3d 574, 581 (11th
Cir. 1995); Brown, 469 F.2d at 570. Writing for the D.C. Circuit, Judge Bazelon explained, “[b]ut
there can be no dispute that the very integrity of the process rests on the assumption that clear rules
will be established and that, once established, they will be enforced fairly, consistently, and
without discrimination so long as they remain in force.” Brown, 469 F.2d at 570; accord
Stephenson, slip op. at 4 (“Each voted with this same understanding that his second and third
choice preferences could be counted if his or her first choice was the candidate with the least
number of votes.”). The First Circuit has held that retroactive changes of voting procedure are
precisely the sort of case where due process concerns for voters come into play. See Griffin v.
Burns, 570 F.2d 1065, 1078-79 (1st Cir. 1978).
The due process concerns implicated by Poliquin’s proposed remedy are myriad and touch
Golden, his voters, all voters who utilized the RCV system, and Tiffany Bond, another candidate
for the Second Congressional District. Indeed, Poliquin’s proposed remedy would violate the due
process rights of not only voters who selected Jared Golden first, but also those who selected him
second or third and had their votes counted for Jared Golden based on the RCV process. It would,
somewhat ironically, also violate the due process rights of those voters who selected Bruce
16

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 17 of 20

PageID #: 392

Poliquin second or third in reliance on RCV, who would similarly be disenfranchised by the ruling
which Poliquin requests from this Court. (Golden attaches to this filing as Ex. B an additional
affidavit from one of those voters). The due process concerns presented by a ruling for Poliquin
were already perfectly articulated by this Court in denying Poliquin’s TRO:
Plaintiffs’ position is not without irony. For instance, if the Court were to sustain
Plaintiffs’ claim, and if the Court were to determine, as Plaintiffs request, that the
appropriate remedy is to declare Representative Poliquin the winner, there are many
who would consider the cure to be worse than the alleged disease, as least insofar
as the professed concern is with the right of voters to cast effective ballots in a fair
election. … [F]or this Court to change the rules of the election, after the votes have
been cast, could well offend due process.
TRO Order, ECF No. 26 at 8–9 (citing Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 73
(2000)). Further, as the Court also noted, Tiffany Bond stated that she would not even have run as
an independent candidate without ranked choice voting because she did not want to be a “spoiler.”
See TRO Order, ECF No. 26 at 9; Tr. 63-64. Poliquin’s proposed ruling would similarly injure
her.
By contrast, neither Poliquin nor his supporters who submitted affidavits are at any risk of
having their vote negated. Each admits that they voted for Poliquin and Poliquin only, who is one
of the two front runners, and thus their votes were tabulated in each round. See ECF No. 13-1, 15.
The only people who are at risk of being disenfranchised—and suffering truly irreparable harm—
are the Maine voters who Poliquin seeks to suppress with this lawsuit.
V.

The Public Interest Requires Rejection of Poliquin’s Motion
Similarly, and relatedly, Poliquin cannot establish that the public interest supports a

preliminary injunction because he seeks to disenfranchise thousands of voters and to change the
state’s election laws after the fact. If the rules can be changed after all the votes have been
submitted and changed in such a way to entirely negate thousands of voters’ ballots entirely, then

17

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 18 of 20

PageID #: 393

public trust in both Maine elections and the rule of law is likely be severely wounded. It is precisely
the rights of all Maine voters—including the 14,297 voters who only voted for Golden or Poliquin
as their second choice—to have their votes counted in accordance with the RCV system approved
twice by the voters, and upheld as constitutional four times by the courts, that requires the motion
for a preliminary injunction be denied. There could hardly be a more important public interest.
The public interest, moreover, also supports maintaining the orderly operation of Maine’s
election laws and avoiding the “chaotic and disruptive effect upon the electoral process” of a
preliminary injunction. Benisek, 138 S. Ct. at 1944-45 (citation omitted); Respect Maine PAC, 622
F.3d at 16; Alexander v. First Wind Energy LLC, 2011 WL 5325297, *2 (D. Me. Nov. 2, 2011)
(“[T]he Court notes that the public interest is best served by the Court abstaining from any action
that might impact on the upcoming election.”); cf. Bowles v. Indiana Sec’y of State, 837 F.3d 813
(7th Cir. 2016) (even when election statute is declared unconstitutional, court properly may refuse
to invalidate election based on challenge filed after election).
CONCLUSION
Defendant-Intervenor Jared Golden respectfully requests that Plaintiff’s motion for a
preliminary injunction be denied.
Dated: November 28, 2018

/s/ Peter J. Brann
Peter J. Brann
pbrann@brannlaw.com
Michael E. Carey
mcarey@brannlaw.com
Eamonn R.C. Hart*
ehart@brannlaw.com
BRANN & ISAACSON
P.O. Box 3070, 184 Main Street
Lewiston, ME 04243-3070
(207) 786-3566

18

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 19 of 20

PageID #: 394

/s/ James T. Kilbreth
James T. Kilbreth
jkilbreth@dwmlaw.com
David M. Kallin
dkallin@dwmlaw.com
Drummond Woodsum
84 Marginal Way, Suite 600
Portland, ME 04101-2480
(207) 772-1941
Marc E. Elias
Elisabeth C. Frost
John M. Geise
PERKINS COIE LLP
700 Thirteenth St., N.W., Suite 600
Washington, D.C. 20005-3960
(202) 654-6200
MElias@perkinscoie.com
EFrost@perkinscoie.com
JGeise@perkinscoie.com
Counsel for Defendant-Intervenor
Jared Golden
*Admitted in Maine, admission to
District of Maine pending

19

 Case 1:18-cv-00465-LEW Document 43 Filed 11/28/18 Page 20 of 20

PageID #: 395

CERTIFICATE OF SERVICE
I certify that on November 28, 2018, I filed the foregoing document with the Clerk of the
Court using the CM/ECF system, which will send notice to counsel of record.

/s/ James T. Kilbreth
James T. Kilbreth
jkilbreth@dwmlaw.com
Drummond Woodsum
84 Marginal Way, Suite 600
Portland, ME 04101-2480
(207) 772-1941

20