Peter Brann argues that Maine has led the nation in adopting a new voting system—ranked-choice voting (RCV)—that better ensures that the most popular candidate in any election wins. On Nov. 3, voters in Massachusetts and Alaska will have the opportunity to adopt ranked-choice voting statewide.
Brann is a visiting lecturer in Law at Harvard Law School, where he co-teaches a class on the Role of State Attorneys General. Brann was counsel to now-Maine Congressman Jared Golden in the constitutional challenge to the first use of ranked-choice voting in federal elections in the country in 2018. He also wrote a chapter on ranked-choice voting for a book published by the American Bar Association in 2019, “America Votes!” Brann previously served as an assistant attorney general and state solicitor for the state of Maine.
Harvard Law Today recently asked Brann via email to explain ranked-choice voting, what he believes are its advantages, and what opponents say about it.
Harvard Law Today: What is ranked-choice voting?
Peter Brann: Ranked-choice voting (RCV), also called instant runoff voting, allows voters to rank their preferences in order—one, two, three, etc. Voters can also do what they always have done, for example, just vote for their preferred candidate. In races in which there are more than two candidates, if no candidate gets over 50% of the first-choice ballots, the lowest-ranked candidate is dropped, and the second choices of his or her voters are counted and added to the higher-ranked candidates. This process continues until a candidate gets over 50% and is declared the winner.
HLT: What jurisdictions already do it and how has it worked for them?
Brann: Maine is the most prominent, using it for all federal offices and for state offices in the primary election. In other states, such as California, Massachusetts (Cambridge), Michigan, Minnesota, North Carolina, and Vermont, RCV is used or has been used for municipal or judicial elections. RCV is a referendum question this year in statewide elections in Massachusetts and Alaska.
HLT: Would ranked-choice voting incentivize candidates to appeal to a broader swath of voters from the outset of their campaigns?
Brann: There is not a lot of data yet to test that hypothesis, but so far in Maine (2018 and the primary elections so far in 2020), the candidates with the broadest coalitions have won their races. Under the plurality system, a candidate with a very committed base of supporters could win even if a majority of the voters dislike that candidate. Likewise, a candidate who a majority of the voters do not support, facing two opponents with similar strengths who split the vote— for example, a more liberal candidate facing two conservatives, or vice versa—could win in a plurality system. This suggests that candidates who appeal to a broader swath of voters should do better under RCV than under the plurality or run-off systems.
HLT: Why do proponents favor it? What do they see as the advantages?
Brann: Proponents like it because a candidate with a strong core of supporters who is disliked by a majority of the voters should not be able to win under RCV but can win under the plurality system. Proponents also like it because it avoids the cost and voter participation drop-off of the second most popular voting system, namely, a separate run-off election. The winner under RCV should instead be the person who a majority of the voters prefer. It eliminates the role of “spoilers”—you can vote for your preferred candidate first, and then rank one of the “lesser of two evils” second, and know that you aren’t “throwing away your vote” on a candidate who cannot win.
HLT: How about opponents? What are the objections?
Brann: Although no federal constitutional arguments have prevailed in Maine or in any of the other litigation around the country, opponents have argued primarily that it violates equal protection (one person, one vote) and due process (too confusing). Opponents generally attack RCV on the grounds that it is too confusing and too costly. It requires voters to understand how the votes will be cast and counted, and then to vote accordingly. It also requires computer software to be able to efficiently count the votes. In Alaska, opponents are also arguing that it will undermine the two-party system by making it easier for third party and independent candidates to run and win.
HLT: Are results available on election night?
Brann: If one of the candidates gets more than 50% of the first-choice votes, then you know the winner on election night. If not, the ballots then have to be collected and counted, usually using a computer to eliminate the lower-ranked candidates and allocate the second, third, and other choices until you get a candidate with over 50% of the vote. In Maine, for statewide elections, that process took one to two weeks in 2018.
HLT: Do you think RCV could make a difference this year?
Brann: Based on current polling, I think it’s quite likely that RCV will be used to determine the winner of the hotly contested U. S. Senate race in Maine between Republican Susan Collins and Democrat Sarah Gideon, which could determine control of the Senate. Also, current polling shows that RCV will be used to determine if [President] Trump or [former Vice President] Biden wins one electoral vote in Maine’s second congressional district (Maine and Nebraska award electoral votes by congressional district). If the presidential race is as close this time as four years ago, one electoral vote could be a big deal.
HLT: You were involved in a court case about ranked-choice voting in Maine in 2017. What happened?
Brann: In 2018, RCV was used for the first time in a federal election to determine the winner, and it immediately made a difference. The incumbent GOP congressman in Maine’s Second Congressional District, Bruce Poliquin, was the narrow plurality leader over the Democratic challenger, Jared Golden, after counting the first-choice votes. When the votes were counted using RCV, after eliminating the two independent candidates, Golden narrowly won with over 50% of the vote.
Poliquin and his supporters challenged the constitutionality of RCV under the Voting Rights Act, the Elections and Qualifications Clauses of Article I of the U.S. Constitution, as well as the Equal Protection, Due Process, and the Free Speech clauses. I (along with others) was counsel to Golden. Poliquin submitted expert testimony and the court held a testimonial hearing on his challenge. The judge then rejected the expert testimony as unreliable, and firmly rejected all of Poliquin’s legal challenges. Poliquin appealed, but his appeal was then dismissed, and Golden was seated as a congressman.
In the Poliquin-Golden election, RCV worked as the proponents hoped, and as the opponents feared—the candidate who had the support of a majority of the voters won, and the plurality leader opposed by that majority lost. Maine’s state motto is Dirigo, which means, “I lead.” Whether others will follow remains to be seen.