Hagopian v. Dunlap, 1:20-cv-00257-LEW

• Decision Date: 14 August 2020
• Docket Number: 1:20-cv-00257-LEW
• Citation: 480 F.Supp.3d 288
• Parties: Robert HAGOPIAN, Duane R. Lander, Sterling B. Robinson, and James T. Trudel, Plaintiffs, v. Matthew DUNLAP, in his official capacity as Secretary of State, Aaron Frey, in his official capacity as Attorney General, and Janet Mills, in her official capacity as Governor of the State of Maine, Defendants.
• Court: U.S. District Court — District of Maine

480 F.Supp.3d 288

Robert HAGOPIAN, Duane R. Lander, Sterling B. Robinson, and James T. Trudel, Plaintiffs,

v.Matthew DUNLAP, in his official capacity as Secretary of State, Aaron Frey, in his official capacity as Attorney General, and Janet Mills, in her official capacity as Governor of the State of Maine, Defendants.

1:20-cv-00257-LEW

United States District Court, D. Maine.

Signed August 14, 2020

Fred W. Bopp, III, Bopp & Guecia, Yarmouth, ME, for Plaintiffs.

ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Lance E. Walker, UNITED STATES DISTRICT JUDGE

In this action, the Plaintiffs, four registered Maine voters who intend to vote for Susan Collins in the 2020 election, request that a United States District Court judge issue an order invalidating Maine's ranked-choice voting system on constitutional grounds. The matter is before me on Plaintiffs' Motion for Preliminary Injunction (ECF No. 3).

BACKGROUND

The State of Maine uses a system of ranked-choice voting ("RCV") for federal elections. RCV operates on a simple set of rules. The ballot identifies all of the candidates for the federal office in question and asks the voter to rank them by order of preference. If no candidate achieves a majority of the votes cast in the initial count, the candidate with the fewest votes is eliminated and the ballots that named that candidate as the first choice are reviewed to see if they expressed a preference for the remaining candidates. Ballots that contain a preference among remaining candidates are counted for those candidates. Ballots that do not contain such a preference are "exhausted," meaning they are no longer counted toward determining who will win. 21-A M.R.S. § 723-A.¹ Defendants submitted a sample RCV ballot, the July 2020 Second District Republican Primary Ballot (ECF No. 26), to demonstrate what the ballot will look like for Plaintiffs in November:

Voters can express their preferences in different ways under Maine's RCV system. They can rank each and every candidate, or they can rank fewer than all candidates. Data from the 2018 Second Congressional District tells us that most voters did not rank every candidate. Regardless, if a voter picks a "continuing" candidate for first place, i.e., a candidate who is not eliminated in the first round, his or her first place vote for that candidate continues to the second round of vote tabulation. If not, such a voter can still have a say in the outcome provided he or she ranked one of the continuing candidates higher than, or to the exclusion of, the other continuing candidate(s).

Rather simple, really. Voters can behave as they would in a traditional plurality election by selecting a first-preference candidate and no other, and rest assured that their vote will be counted so long as their candidate continues in the rounds of tabulation; or voters can take the trouble of ranking some or all candidates, if the voters are concerned that their first choice candidate is not likely to win and they have a preference among the remaining candidates. Plaintiffs, in fact, took three different approaches to RCV voting in the 2018 election, and each approach ensured that their ballots were counted toward Bruce Poliquin in the final round of tabulation.

Robert Hagopian describes himself as a retired educator and businessman in his 70s with a college degree. In the 2018 Second Congressional District election, he ranked every candidate, leading with Bruce Poliquin. He did not wish to express support for the other candidates, but says he did so out of fear that, if Bruce Poliquin was eliminated, his ballot would be "discarded." He intends to vote in the 2020 Senate race and to once again rank every candidate, he says, in case his first choice, Senator Susan Collins, is eliminated in the course of successive rounds of ranked choice tabulation. However, Mr. Hagopian finds it offensive that he should have to rank Sara Gideon at all, even though he intends to rank her last among all candidates. Hagopian Declaration (ECF No. 1-2) & Testimony.

Duane Lander tells us he is a United States Army veteran, retired engineer, and former state house representative, age 79 as of the filing of the complaint, with multiple college-level degrees. He states that ranked choice voting confuses him and that he ranked Bruce Poliquin as his choice in every column on the ballot in 2018. He states (incorrectly) that it was his understanding that if he only selected Mr. Poliquin in the first-round column, his vote would not have counted in later rounds. In his Declaration, he asserts that he still thinks that is how it works, even after talking to unnamed experts on the subject, although his testimony was equivocal on this point. He intends to cast his vote for Susan Collins in the very same manner as he did for Mr. Poliquin (choosing her in every column). Lander Declaration (ECF No. 1-3) & Testimony.

Sterling Robinson identifies as "an eighth-generation Mainer," in his 70s, with some college education and a lifetime of practical experience. In the 2018 election, he (and a great number of others) cast his ballot by filling in the first-choice circle for Bruce Poliquin and leaving all other circles empty. He states that he understands now, but did not understand then, that his approach "risked" having his ballot exhausted. This year, he intends to vote for Susan Collins in column one, and he says he will rank every candidate. In his Declaration, he states he does not understand "how to rank the candidates to both ensure that [his] preferred candidate is in the best position to win while ensuring that [his] ballot will not be exhausted." He says he is "concerned that in attempting to ensure [his] ballot is counted, [he] could unknowingly undermine [his] voting interests." Robinson Declaration (ECF No. 1-4). Mr. Robinson's testimony was consistent with this position.

James Trudel describes himself as a retired Lieutenant Colonel of the Maine Air National Guard and former electrical engineer with a college degree, also in his 70s. Mr. Trudel is registered as an independent voter, but he does not wish to express any support for candidates with whom he does not agree. In the 2020 race, he intends to vote for Senator Collins as his first choice, but will rank all of the other candidates as well, including Sara Gideon (in the last column, he advises). He considers it a violation of his political convictions to rank the other candidates. Trudel Declaration (ECF No. 1-5) & Testimony.

Although there is no evidence to suggest that the ballots cast by the four Plaintiffs were not counted in every round of the 2018 RCV election, the Plaintiffs contend that they can prove that "nearly two thirds of Maine voters [were] denied full participation in the 2018 Congressional Election and thus [were] placed at risk of disenfranchisement"; "that the average rate of full voter participation and the actual rate of disenfranchisement are much worse under the RCV Act than under other types of voting systems"; and that "empirical demographic data demonstrat[es] that the RCV Act disproportionally burdens the right to vote of older and less-educated Mainers." Complaint ¶ 248.

They allege: in the First Claim for Relief, an undue burden on their First and Fourteenth Amendment rights to vote effectively; in the Second Claim, a violation of their First and Fourteenth Amendment rights not to be compelled to vote for someone they do not support; in the Third Claim, a violation of procedural due process under the Fourteenth Amendment; in the Fourth Claim, a violation of equal protection guaranteed them by the Fourteenth Amendment; and in the Fifth Claim, abridgment of their Twenty-Sixth Amendment rights to vote based on age. Id. ¶¶ 249-314.

In support of their Motion for Preliminary Injunction, Plaintiffs have enlisted an expert witness, Nolan McCarty, Ph.D., Professor of Politics and Public Affairs at Princeton University. In his Expert Report, Professor McCarty presents voter data from Maine's 2018 RCV election and two primary races, and expresses certain opinions about what he thinks the data reveal. Because the Expert Report is designed to present Plaintiffs' legal position as favorably as possible through selective statistical sampling methods, I am free to regard the Report critically and need not accept its representations, or Professor McCarty's hearing testimony, as undisputed statements of fact. For reasons I will relate, although Professor McCarty's presentation is helpful, I do not consider his expert findings persuasive.

Professor McCarty's lead analytical point is definitional. He says, normatively and not empirically as he claims, that voters who cast their ballots the way Mr. Robinson did in 2018 (voting for one candidate in round one and leaving the remaining rounds blank), fail to "fully participate" in an RCV election and behave in a manner "hard to rationalize." Expert Report at 10 (ECF No. 1-1). However, every voter who selected either Bruce Poliquin or Jared Golden as their only choice in column one, without expressing alternative preferences for subsequent rounds, in fact, fully participated in the 2018 election. By regarding these voters as irrational participants in the election, frankly, Professor McCarty disregards the reality of Maine's 2018, information-age election, in which voters could – quite rationally – expect that the final two contestants would be Mr. Poliquin and Mr. Golden. Indeed, most voters (i.e., voters of all ages and educational backgrounds) cast their ballots with this presumption in mind and did not rank every candidate.

By building his report on the faulty premise that ranking only one candidate or fewer than n -1 candidates is an irrational "failure" to "fully participate," Professor McCarty has substantially eroded the likelihood that I would ultimately consider his expert opinions dispositive of the merits. Although I recognize that there are theoretical scenarios in which having three or more...