Battleground State Report: Judge Says Maine’s ‘Rank Voting’ System Constitutional, But Originalists Disagree

On Friday’s Battleground State Report with Steve Gill and Michael Patrick Leahy – a one hour radio show from Star News Digital Media in the early stages of a national weekend syndication rollout – the two hosts discussed the concept in Maine’s new “rank voting” system, who’s behind it, why it’s being implemented and how, and what it stands to gain for the Democrats. Gill and Leahy go into mind bending depth on the complexity of this concept and how it stands to challenge the interpretation of the Constitution.

Gill: I know this whole Maine thing is a bit confusing but so we’re trying to walk through it because this may be what the Democrats try to impose in other states to give themselves an edge.  They’re trying to automatically put felons back in the ability to vote because overwhelmingly about sixty to seventy percent of felons will vote for the Democrats. They’re trying to bring in more illegal aliens to vote in this country because that helps the Democrats. And this rank voting system, which rank means stink, as well as ranking the votes it applies in both standards is another way that Democrats may be able to set up a system where they can legally steal votes. This same way this kind of the after the election day harvesting is taking place that they are setting up.  Know that they are setting up these procedures in states where they control the legislature, where they control the Governor’s office, to put themselves in better chances to win in 2020.

Leahy: Exactly right.  So if your head hasn’t exploded yet… (laughs) so we are back in Maine trying to explain the rank voting system and the way it works now, on election day November 6th, there were 4 candidates.  The Republican got two thousand six hundred and thirty two more votes, first choice votes, than the Democrat and yet because he was under fifty percent he wasn’t declared the winner, they implemented for the first time in American history, the rank voting system process.  And so the secretary of state, a Democrat, goes through this process where he looks at all of the votes of the third and fourth place finishers.  Now those people, by the way, those people are not allowed to cast their votes for the third or fourth place finishers in the second round.  Their votes have to go to either the first or second place. And so what they do is they go and they look now at their second choice, their third choice and their fourth choice.  But, there are about twenty three thousand voters who cast votes for the third and fourth place finishers. Here’s the deal.  If they did not pick a second choice, third choice or fourth choice, guess what?  According to the law passed by a 2016 initiative those votes were thrown out, not counted.  Can you believe that?

Gill: So again they’re depriving people of their intended votes based upon them not casting their back up votes.

Leahy: Exactly right. So then the Democrat Secretary of state using…wait for it…a proprietary algorithm from an outside vendor, selected by the Secretary of State, a Democrat.

Gill: Is it his brother in law?

Leahy: You know, who knows. By the way, they won’t allow anybody to go in and exam that algorithm. Ok? So, they, what they do then is they take in this case implementing the law, what they do is they take the paper ballots, they scan them digitally and then they go through this, they try to create apparently a giant Excel sheet and the voters who voted for the third place finisher and the fourth place finisher the sixteen or fourteen thousand or so of them that picked a second, third, or fourth choice vote, then they allocate those to the first or second place finisher in the November 6th election. I know this will shock you but ten thousand of those votes, from voters who voted for the third place and fourth place finishers who did pick a second, third, or fourth choice, ten thousand of those votes were allocated to the Democrat, four thousand were allocated to the Republican, and surprise surprise, guess who won the election.

Gill: The Democrats win because that’s how they set it up

Leahy: Bing! bing! bing!

Gill: If it’s this confusing to have to explain it, that seems like it’s pretty much anti-Democratic in terms of voting.

Leahy: Oh yeah.

Gill: I mean little D, not big D Democratic.

Leahy: Yeah, yeah…

Gill: It’s very pro big D Democratic.

Leahy: Absolutely.

Gill: But if you’re having to explain to voters this confusing process then it’s not one man one vote. And it is not a clear transparent process.

Leahy went on to explain how this was all set up and that it wasn’t Maine’s legislature, but it was an initiative set up and bank rolled in 2016 by a left wing billionaire from Houston, Texas who as Gill says, saw this as a way to steal votes legally in Maine.  Leahy reminded Gill and the listeners that Maine has four electoral college votes but allocates them differently than the forty eight other states.  He explained that the forty eight other states have a winner-take-all system and that in Maine, two electoral college votes go to the winner over all but each congressional district gets one electoral vote.  Leahy explained that in 2016 the state went for Hillary Clinton, but the second (where this vote is taking place) went to Donald Trump. Gill replied by stating that this was done by referendum in Maine and that Democrats want to try to implement rank voting in other states.

Leahy:  Let’s look at this.  Why did this billionaire, a guy who was involved in Enron and bailed on Enron before it went down and was never implicated in any legal impropriety.  But he’s a billionaire from Houston, Texas.  Why did he think it might work to have an initiative to introduce this, I would called it a bizarre rank voting system?

Gill: Because you had a relatively small number of voters you’re trying to influence, which is cheaper to move Maine than it would be to say, move Texas into this system.

Leahy: But why did he think that perhaps a legal challenge to this since the Constitution pretty clearly says only the state legislature can determine this.  I just wonder why he thought it might have a chance of working.  I’ll tell you why.  Because the previous year the Supreme Court in a 5 to 4 decision ruled against the Arizona State legislature in a suit abroad against the Arizona Independent Redistricting Commission about who would set the boundaries for the congressional districts there.  You know, that choosing a time and place of an election, manner of an election!  And without citing any particular precedent Judge Ruth Bader Ginsburg wrote in her basically, said the following, she conceded that “direct lawmaking by the people was virtually unknown when the Constitution was drafted in 1787” but making up law from the Supreme Court seat she holds: “Our precedent teaches that redistricting is a legislative function to be formed in accordance with the states’ prescription for lawmaking which may include the referendum in the governors veto, the exercise of the initiative we acknowledged was not at issue in our prior decisions.” In other words, the Constitution doesn’t say you can do it initially.

Gill: And their previous decisions didn’t say, didn’t deal with the issue.

Leahy: Exactly. But all the liberals on the court said, “Oh yeah it does.”  So Chief Justice Roberts, you know, and we’ve criticized him for his decision in NFIB sibilance that basically called Obamacare a tax but didn’t recognize you couldn’t create a tax, tax IB credit out of the house of representatives. But listen to what he said, it’s really really, really, good dissent.  He said, “Just over a century ago, Arizona became the second state in the union to ratify the 17th Amendment.  The 17th amendment transferred power to choose U.S. Senators from the legislature of each state to the people thereof.”  Ok, that’s what the 17th amendment was. Here’s what he added: “What chumps!  They didn’t realize that all they had to do was interpret the Constitutional term the legislature to mean the people, the majority court today performs just such a magic trick with the elections clause.”

Gill: Well, there are other constitutional provisions that if you apply that same approach that when we talk about the people we mean Congress. That might kind of twist things a bit.  As Justice Roberts wrote in his dissent, “What chumps,” if the terms people and the legislature are absolutely interchangeable based upon the majority ruling written by Ruth Bader Ginsberg then there are some other provisions of the Constitution that might deserve some reinterpretation like the Second Amendment.  Now the Second Amendment provides that “A well regulated militia being necessary to the security of free state the right of the people to keep and bare arms shall not be infringed.” Now that’s been interpreted to me that the individual people have a right to bare arms and protect themselves. But if you’re going to apply the Ruth Bader Ginsberg argument and people and legislature are interchangeable, then actually the Second Amendment only gives members of Congress the right to bare arms. There can only be four hundred and thirty five armed people in America if you believe Ruth Bader Ginsberg has the slightest clue what she’s talking about.  Which is the best indication that she doesn’t.

Addressing the general problem, Leahy questioned how one interprets the Constitution.  Do you interpret it at the time it was written or should it be living and moving?  Gill compared it to that of Alice in Wonderland: “A word means what I say it means, not what it actually means.” Leahy talked about how Bruce Poliquin of Maine believed this to be a violation of the elections clause and of the 14th Amendment, because eight thousand people didn’t get their votes counted. Leahy went on to describe how Poliquin filed a lawsuit in the federal district court of Maine where Judge Lance Walker (appointed by Trump) rejected the argument and then filed a supreme court ruling.

Leahy: If you read his opinion it’s very clear this guy despises Poliquin and his argument.  Not only does he reject it on election clause grounds citing the very bad 2015 decision that the living Constitutionalist  on the Supreme Court won five to four, he also rejects it on 14th amendment grounds…

Gill: Which wasn’t determined in that prior Supreme Court.

Leahy: It was not.  And that’s the one person one vote. But he doesn’t really address the fact that eight thousand people just didn’t get their votes counted.

Gill: Well and that’s where, as this moves ahead, I do have some confidence that at the Court of Appeals level they can hang their hat on the one man one vote and find their way around that Supreme Court decision on the elections clause.  They can make it a one man one vote decision that then gets it to the Supreme Court and again the new 5-4 conservative majority in the Court could overturn the rank voting keeping in place the previous Supreme Court, saying we don’t have to get to that question, we can get to the right answer based solely on one man one vote.

Leahy: And the state legislature…

Gill: I  know we’re in the weeds

Leahy: We are in the weeds…

Gill: That’s why you have a lawyer on the show (laughs)

Leahy: That’s right, that’s right, I think it’s a good point that you make, that, that if the state legislature said let’s do rank voting, ok, that’s in compliance with the election clause, but let’s go back to this, what was that term you used for the precedent…

Gill: Stare dicicis.

Leahy: Stare dicicis so…

Gill: We can charge more if you throw out Latin phrases as a lawyer.

Leahy: (Laughs) But that precedent says if this case had come up say in 2014 before this ground breaking Supreme Court decision that essentially reinterpreted the election clause of the Constitution.  If this case had come up in 2014 there would be no particular precedent on it to cite and therefore the district court judge would have said, no you can’t do that.

Gill and Leahy believe that New Hampshire, New Mexico, Nevada, and Colorado will be the next states to implement rank voting because at the end of the day… Democrats are way ahead on election law-fare.


You can listen to the full show here (the discussion of the Maine election begins at the 10:30min mark):

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Tune in every Friday morning from  to the Battleground State Report with Steve Gill and Michael Patrick Leahy.








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