Baber v. Dunlap
Decision Date | 15 November 2018 |
Docket Number | Civil No. 1:18-CV-465-LEW |
Citation | 349 F.Supp.3d 68 |
Parties | Brett BABER, et al., Plaintiffs v. Matthew DUNLAP, Defendant |
Court | U.S. District Court — District of Maine |
Joshua A. Tardy, Irwin Tardy & Morris, Newport, ME, Joshua A. Randlett, Rudman & Winchell, Bangor, ME, Andrew G. Woodson, Eric Wang, Pro Hac Vice, Lee E. Goodman, Pro Hac Vice, Wiley Rein LLP, Washington, DC, for Plaintiffs.
Phyllis Gardiner, Office of the Attorney General Six State House Station, Augusta, ME, for Defendant.
ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
On November 6, 2018, the State of Maine conducted an election and presented voters with a ballot that asked them to rank their choices for who should be the people's representative for Maine's Second Congressional District. The congressional election was subject to Maine's Ranked-Choice Voting Act, 21 M.R.S. § 723-A. Defendant Secretary of State Matthew Dunlap is invested with the duty to "tabulate the election returns and submit the tabulation to the Governor" no later than 20 days following the election. 21-A M.R.S. § 722.
On November 13, after Defendant Dunlap announced that no contestant had received enough votes to achieve an outright majority victory in Second Congressional District election, and that the ballot counting process would continue as outlined in section 723-A, Plaintiffs, Representative Bruce Poliquin, et al. ,1 filed this civil action. In their complaint, Plaintiffs maintain that Maine's experiment in ranked-choice voting violates Article I, section 2 of the United States Constitution, and deprives Plaintiffs of rights secured to them under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, as applied to the State of Maine through incorporation in the Fourteenth Amendment, and the Voting Rights Act. (Complaint, passim. ) They request the Court declare that their rights have been violated, and they further request injunctive relief that, in effect, requires Defendant to certify Representative Poliquin to be the winner of the election. (Id. at 24–25, prayer for relief. )
On November 14, 2018, the Court conducted a hearing on Plaintiffs' request for a temporary restraining order (TRO). The Court heard argument from Plaintiffs, Defendant, and Intervenors Tiffany Bond, et al.2 Plaintiffs argue they are entitled to an order enjoining Defendant from finalizing the ballot count under Maine's ranked-choice scheme, such that no final tabulation of votes will occur until this Court is able to rule on Plaintiffs' motion for preliminary injunction or the merits of Plaintiffs' action.
For reasons that follow, Plaintiffs' request for TRO is denied. The case will proceed in the normal course.
This is not the first time a challenge has been raised concerning the constitutionality of Maine's Ranked-Choice Voting Act ("RCV Act") when used for the selection of Maine's congressional representatives. Due to the emergency nature of the pending motion, the following background statement is borrowed from this Court's prior order in the matter of Maine Republican Party v. Dunlap , No. 1:18-cv-179 (Levy, J., presiding).
Maine Republican Party v. Dunlap , 324 F.Supp.3d 202, 204–06 (D. Me. 2018) (footnote omitted).
While Plaintiff Bruce Poliquin stands in a position unlike that of his co-Plaintiffs, each of the Plaintiffs is similar in that he or she indicated on the ballot that Bruce Poliquin is his or her first round choice in the RCV contest. Each Plaintiff also opted not to rank any other candidate. (Complaint ¶¶ 7–10.)
Upon the calculation of the first round votes, the results (unofficial) appear to be as follows:
Bruce Poliquin 130,916 votes (46.3%) Jared Golden 128,915 votes (45.6%) Tiffany Bond 16,088 votes (5.7%) William Hoar 6,717 votes (2.4%)
Given these results, application of the RCV system could result in a victory by either Representative Poliquin or Mr. Golden. That victory, if certified, could be based on either a majority or a plurality of the total votes casts. Neither Plaintiffs nor Defendant has suggested that the outcome of the RCV election is known at this time.
"[Injunctive relief]is an extraordinary and drastic remedy that is never awarded as of right." Peoples Fed. Sav. Bank v. People's United Bank , 672 F.3d 1, 8-9 (1st Cir. 2012). To determine whether to issue a temporary restraining order, the Court applies the same four-factor analysis used to evaluate a motion for preliminary injunction. Monga v. Nat'l Endowment for Arts , 323 F.Supp.3d 75, 82 (D. Me. 2018). Those factors are:
(1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant]; (3) the balance of the relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.
Esso Standard Oil Co. v. Monroig-Zayas , 445 F.3d 13, 17-18 (1st Cir. 2006) (quoting Bl(a)ck Tea Soc'y v. City of Boston , 378 F.3d 8, 11 (1st Cir. 2004) ). As the party seeking injunctive relief, Plaintiffs bear the burden of establishing that the factors weigh in their favor. Id. at 18 ; Monga , 323 F.Supp.3d at 82.
It is generally understood that "[t]he sine qua non of this four-part inquiry is likelihood of success on the merits," meaning that the Court should not address the remaining factors if the movant makes a weak showing as to the likelihood of success on the underlying claim(s). Monga , 323 F.Supp.3d at 82 .
Plaintiffs' primary argument is that Maine RCV system violates an unstated, but in their view implicit, constitutional requirement that all ballots be counted in a single round and that the candidate with the plurality of votes is the winner.
Article I, Section 2, Clause 1 of the Constitution provides, in pertinent part, as follows: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ...."
Article I, Section 4, Clause 1, provides: "The 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.
Citing precedent of the Second Circuit Court of Appeals, Plaintiffs maintain that Article I, section 2"has always been construed to mean that the candidate receiving the highest...
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