MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	52	
Docket:	   Ken-18-130	
Argued:	   April	12,	2018	
Decided:	  April	17,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                      MAINE	SENATE	
                                            	
                                           v.	
                                            	
                                 SECRETARY	OF	STATE	et	al.	
	
	
PER	CURIAM	

	       [¶1]	 	 The	 Superior	 Court	 (Kennebec	 County,	 Murphy,	 J.)	 has	 reported	

seven	questions	to	us	pursuant	to	M.R.	App.	P.	24(a),	addressing	the	Secretary	

of	State’s	planned	implementation	of	ranked-choice	voting	in	Maine’s	primary	

elections	 scheduled	 for	 June	 12,	 2018.1	 	 The	 first	 three	 questions	 are	

substantive,	and	the	remaining	questions	address	the	justiciability	of	those	first	

three	questions.		This	opinion	focuses	only	on	the	June	2018	primary	election;	

it	does	not	address	any	other	potential	application	of	ranked-choice	voting	in	

Maine.	




    1		The	Committee	for	Ranked-Choice	Voting,	along	with	prospective	congressional,	legislative,	and	

gubernatorial	candidates	Lucas	St.	Clair,	Mark	Eves,	Diane	Russell,	Betsy	Sweet,	and	Ben	Chipman,	
intervened	in	the	matter	in	the	Superior	Court.		See	M.R.	Civ.	P.	24.	
2	

        [¶2]	 	 We	 accept	 the	 Report,	 answer	 Question	 3	 on	 its	 merits,	 conclude	

that	the	other	questions	raise	nonjusticiable	issues,	and	remand	the	matter	to	

the	Superior	Court	for	entry	of	a	final	judgment.		In	summary:		

     (1)    We	assume,	without	deciding,	that	the	Maine	Senate,	a	single	body	of	
            the	 bicameral	 Maine	 Legislature,	 has	 standing	 to	 seek	 a	 declaration	
            regarding	 the	 legal	 status	 of	 ranked-choice	 voting	 in	 the	 June	 2018	
            primary	elections	and	to	challenge	in	court	the	operational	planning	
            of	the	Secretary	of	State,	who	is	a	constitutional	officer;	
            	
     (2)    We	 answer	 Reported	 Question	 3	 and	 determine	 that	 ranked-choice	
            voting	is	the	current	statutory	law	of	Maine	for	the	primary	elections	
            to	be	held	on	June	12,	2018;	
            	
     (3)    We	determine	that		Reported	Questions	1	and	2,	which	ask	the	Court	
            to	act	in	contravention	to	the	constitutional	provision	respecting	the	
            separation	 of	 powers	 of	 the	 three	 independent	 Branches	 of	
            government,	are	not	justiciable;	and	
        	
     (4)    We	determine	that	the	remaining	questions	are	moot.		
	
	

	                           	
                                                                                                                    3	

                                              I.		BACKGROUND	

         [¶3]		The	history	of	ranked-choice	voting	in	Maine	to	date	could	provide	

the	substance	of	an	entire	civics	course	on	the	creation	of	statutory	law	in	the	

State	of	Maine.		We	provide	the	highlights	here.	

         [¶4]		In	2016,	the	people	of	Maine	enacted	citizen-initiated	legislation	to	

implement	ranked-choice	voting	for	general	 and	primary	elections	occurring	

on	 or	 after	 January	 1,	 2018,	 for	 the	 offices	 of	 United	 States	 Senator	 and	

Representative,	State	Senator	and	Representative,	and	 Governor.2		L.D.	1557,	

§§	1-6	 (referred	 to	 the	 voters,	 127th	 Legis.	 2016)	 (effective	 Jan.	 7,	 2017)	

(codified	at	21-A	M.R.S.	§§	1(27-C),	1(35-A),	601(2)(J),	722(1),	723-A	(2017));	

see	Me.	Const.	art.	IV,	pt.	3,	§	18.		The	Ranked-Choice	Voting	Act3	created	by	the	

citizens’	initiative	did	not,	however,	amend	21-A	M.R.S.	§	723(1)	(2017),4	which	


   2		The	Ranked-Choice	Voting	Act,	which	we	refer	to	as	the	RCVA,	defined	an	“[o]ffice	elected	by	

ranked-choice	 voting”	 as	 any	 office	 for	 “United	 States	 Senator,	 United	 States	 Representative	 to	
Congress,	Governor,	State	Senator	and	State	Representative,	and	.	.	.	any	nomination[]	by	primary	
election	 to	 such	 offices.”	 	 L.D.	1557,	 §	 1	 (effective	 Jan.	 7.	 2017)	 (codified	 at	 21-A	M.R.S.	 §	 1(27-C)	
(2017)).			
   	
   3		The	Ranked-Choice	Voting	Act	was	officially	titled,	“An	Act	To	Establish	Ranked-choice	Voting.”		

L.D.	1557.	
	
   4		At	the	time	the	RCVA	was	enacted	by	citizen	vote,	21-A	M.R.S.	§	723	(2015)	was	in	effect.		On	

June	22,	2017,	the	Legislature	amended	section	723.		P.L.	2017,	ch.	248,	§§	1-9	(effective	Nov.	1,	2017)	
(codified	 at	 21-A	 M.R.S.	 §§	 144,	 145,	 311(1),	 723(1)(A),	 (2),	 753-B(5)	 (2017));	 30-A	M.R.S.	
§§	757(2)(A),	2528(4)(C)	(2017)).		These	amendments,	enacted	prior	to	the	major	revision	made	by	
“An	Act	To	Implement	Ranked-choice	Voting	in	2021,”	P.L.	2017,	ch.	316,	§§	1-14	(effective	Feb.	5,	
2018),	 made	 no	 substantive	 changes	 to	 the	 voting	 method,	 but	 modified	 section	 723	 and	 several	
other	provisions	as	to	voter	enrollment	requirements.		P.L.	2017,	ch.	248,	§§	1-9.		These	intervening	
amendments	do	not	affect	the	current	dispute.		We	therefore	cite	to	the	2017	version	of	section	723.	
4	

states	that	“[i]n	a	primary	election,	the	person	who	receives	a	plurality	of	the	

votes	cast	for	nomination	to	any	office,	as	long	as	there	is	at	least	one	vote	cast	

for	that	office,	is	nominated	for	that	office.”		Thus,	section	723(1)	continued	to	

provide	 that	 the	 winner	 of	 a	 primary	 election	 would	 be	 determined	 by	 a	

plurality	of	the	votes,	even	while	section	1(27-C)	named	primary	elections	as	

among	those	elections	to	be	conducted	using	ranked-choice	voting.	

        [¶5]		On	 May	23,	2017,	at	the	request	of	the	Maine	Senate	 pursuant	to	

Me.	Const.	art.	VI,	§	3,	we,	as	individual	Justices	of	the	Maine	Supreme	Judicial	

Court,	issued	a	unanimous	Advisory	Opinion	stating	that	specific	aspects	of	the	

RCVA	conflict	with	three	portions	of	the	Maine	Constitution—Me.	Const.	art.	IV,	

pt.	1,	§	5;	Me.	Const.	art.	IV,	pt.	2,	§	4;	and	Me.	Const.	art.	V,	pt.	1,	§	3.		Opinion	of	

the	Justices,	2017	ME	100,	¶¶	1,	7,	9,	57,	64-68,	72,	162	A.3d	188.		Those	sections	

address	 the	 election	 of	 the	 Governor	 and	 members	 of	 the	 Maine	 Legislature,	

both	 Senators	 and	 Representatives.5	 	 Me.	 Const.	 art.	 IV,	 pt.	 1,	 §	 5;	 Me.	 Const.	

art.	IV,	pt.	2,	§	4;	Me.	Const.	art.	V,	pt.	1,	§	3.		


   5	 	 In	 the	 Senate’s	 request	 for	 an	 Advisory	 Opinion	 regarding	 the	 constitutionality	 of	 the	

ranked-choice	voting	statute,	we	were	not	asked	to	address	primary	elections,	which	are	governed	
entirely	by	statute	and	find	no	source	in	the	Maine	Constitution	itself.		See	Opinion	of	the	Justices,	
2017	ME	100,	¶	3,	162	A.3d	188;	see	also	21-A	M.R.S.	§§	331-40	(2017);	In	re	Primary	Election	Ballot	
Disputes	2004,	2004	ME	99,	¶	3,	857	A.2d	494.	
	
       Although	the	Advisory	Opinion	did	not	generate	binding	precedent,	we	unanimously	opined	
that	the	method	of	ranked-choice	voting	is	inconsistent	with	election	by	a	“plurality”	as	that	word	is	
used	in	the	Maine	Constitution.		Opinion	of	the	Justices,	2017	ME	100,	¶¶	9,	64-69,	162	A.3d	188.	
                                                                                         5	

	      [¶6]	 	 In	 the	 months	 that	 followed,	 a	 number	 of	 legislative	 efforts	 were	

commenced	 regarding	 ranked-choice	 voting.	 	 See	 L.D.	 1256	 (128th	 Legis.	

2017);	 L.D.	 1624	 (128th	 Legis.	 2017);	 L.D.	 1625	 (128th	 Legis.	 2017).		

Ultimately,	 the	 Legislature	 enacted	 “An	 Act	 To	 Implement	 Ranked-choice	

Voting	 in	 2021,”	 which	 we	 refer	 to	 as	 the	 Implementation	 Act.	 	 P.L.	 2017,	

ch.	316,	 §§	 1-14	 (effective	 Feb.	 5,	 2018);	 see	 Comm.	 Amend.	 B	 to	 L.D.	 1646,	

No.	H-568	 (128th	 Legis.	 2017).	 	 The	 Implementation	 Act,	 P.L.	 2017,	 ch.	 316,	

§§	1-14,	had	two	essential	components:		

    • It	delayed	all	aspects	of	the	implementation	of	ranked-choice	voting	until	
      December	1,	2021,	and	
	
    • It	provided	for	an	automatic	repeal	of	all	ranked-choice	voting	provisions	
      on	December	1,	2021,	if,	by	that	date,	the	Maine	Constitution	had	not	been	
      amended	to	allow	ranked-choice	voting	for	the	offices	of	Maine	Senator,	
      Maine	Representative,	and	Governor.		
      	
	     [¶7]		 Three	days	before	the	effective	date	of	the	Implementation	Act,	a	

people’s	 veto	 of	 portions	 of	 the	 Implementation	 Act	 was	 initiated	 by	 the	

submission	of	signatures	later	certified	by	the	Secretary	of	State.		See	Me.	Const.	

art.	IV,	pt.	3,	§§	17,	20;	21-A	M.R.S.	§§	901-906	(2017).		Pursuant	to	Me.	Const.	

art.	IV,	pt.	3,	§	17(3),	the	Secretary	of	State	announced	that	the	statewide	vote	

on	whether	to	veto	the	challenged	portions	of	the	Implementation	Act	would	
6	

take	 place	 on	 June	 12,	 2018,	 the	 same	 day	 as	 the	 primary	 elections	 for	 the	

United	States	House	and	Senate,	Governor,	and	State	House	and	Senate.	

         [¶8]	 	 As	 a	 result	 of	 the	 initiation	 of	 the	 people’s	 veto,	 certified	 by	 the	

Secretary	of	State,	the	effect	of	those	challenged	portions	of	the	Implementation	

Act	was	“suspended”	as	of	February	2,	2018,	pending	the	vote	on	June	12,	2018.		

Me.	Const.	art.	IV,	pt.	3,	§	17(2).		Critical	to	the	matter	before	us,	the	delay	of	the	

implementation	of	ranked-choice	voting	until	2021	was	suspended.		As	a	result,	

the	 RCVA,	 along	 with	 certain	 portions	 of	 the	 Implementation	 Act,	 became	

immediately	effective,	thus	effectuating	ranked-choice	voting	for	the	June	2018	

primary	elections.		See	Me.	Const.	art.	IV,	pt.	3,	§	17(2).	

         [¶9]		With	the	challenged	portions	of	the	Implementation	Act	suspended,	

the	provisions	of	law	that	are	pertinent	to	the	primary	elections	are:	

     • The	preexisting	and	unamended	portions	of	the	elections	statutes,		

     • The	 provisions	 put	 in	 place	 by	 the	 citizens’	 enactment	 of	 the	 RCVA	 in	
       2016,	and		
	
     • Those	portions	of	the	Implementation	Act	that	are	not	suspended	by	the	
       people’s	veto.6	


     6		The	Implementation	Act	repealed	the	definition	of	“[o]ffices	elected	by	ranked-choice	voting”	

and	 replaced	 it	 with	 a	 new	 version	 of	 21-A	 M.R.S.	 §	 1(27-C)	 defining	 “[e]lections	 determined	 by	
ranked-choice	voting”	as	follows:	
   	
             27-C.	Elections	determined	by	ranked-choice	voting.	“Elections	determined	
        by	ranked-choice	voting”	means:	
           	
                                                                                                          7	

        [¶10]		On	February	16,	2018,	the	Committee	for	Ranked-Choice	Voting	

and	 congressional	 and	 gubernatorial	 candidates	 Lucas	 St.	 Clair,	 Jim	 Boyle,7	

Mark	 Dion,	 Mark	 Eves,	 Sean	 Faircloth,	 Diane	 Russell,	 Betsy	 Sweet,	 and	 Ben	

Chipman	(collectively,	the	Committee)	filed	a	complaint	in	the	Superior	Court	

against	the	Secretary	of	State	seeking	a	declaratory	judgment	that	the	Secretary	

of	State	is	required	to	implement	ranked-choice	voting	in	the	primary	elections.		

Comm.	for	Ranked-Choice	Voting	v.	Sec’y	of	State,	AUGSC-CV-2018-24,	at	9	n.4	

(Me.	Super.	Ct.,	Kennebec	Cty.,	Apr.	3,	2018).		We	understand	that	the	Secretary	

of	 State	 initially	 announced	 that	 his	 office	 would	 implement	 ranked-choice	

voting	 for	 the	 primary	 elections,	 with	 the	 initial	 result	 that	 the	 suit	 was	 not	

aggressively	pursued.			

        [¶11]		On	March	29,	2018,	the	Secretary	of	State	indicated	that	there	was	

a	 conflict	 between	 21-A	 M.R.S	 §	 1(27-C)—directing	 the	 use	 of	 ranked-choice	



             A.	 Primary	 elections	 for	 the	 offices	 of	 United	 States	 Senator,	 United	 States	
             Representative	to	Congress,	Governor,	State	Senator	and	State	Representative;	
             [and]	
                 	
             B.	 General	 and	 special	 elections	 for	 the	 offices	 of	 United	 States	 Senator	 and	
             United	States	Representative	to	Congress.	
   	
P.L.	2017,	ch.	316,	§	1.		Because	it	is	not	challenged	by	the	people’s	veto,	the	version	of	section	1(27-C)	
currently	in	place	is	that	adopted	by	the	Implementation	Act.		Both	versions	of	section	1(27-C)	(that	
enacted	by	the	RCVA	and	that	enacted	by	the	Implementation	Act)	provide	for	ranked-choice	voting	
in	the	primary	elections,	however.			
   	
   7		Jim	Boyle	and	Sean	Faircloth	have	since	withdrawn	from	the	gubernatorial	race.	
8	

voting	 in	 primary	 elections—and	 21-A	 M.R.S	 §	 723—providing	 for	 plurality	

winners	in	primary	elections.		Immediately	after	the	Secretary	of	State	raised	

this	issue,	the	Committee	pressed	its	suit,	requesting	a	temporary	restraining	

order	 “requiring	 the	 Secretary	 of	 State	 to	 continue	 the	 implementation	 of	

ranked-choice	 voting	 for	 the	 June	 12,	 2018	 primary	 election.”8	 	 Comm.	 for	

Ranked-Choice	 Voting,	 AUGSC-CV-2018-24,	 at	 9.	 	 The	 Senate	 did	 not	 move	 to	

intervene	in	the	litigation	commenced	by	the	Committee.	

          [¶12]	 	 The	 court	 (Murphy,	 J.),	 recognizing	 the	 urgency	 of	 the	 matter,	

conducted	 a	 hearing	 on	 the	 afternoon	 of	 March	 29,	 2018,	 and	 entered	 a	

thorough	order	dated	April	3,	2018,	to	which	the	parties	agreed,	addressing	and	

resolving	the	statutory	conflict	and	requiring	the	Secretary	of	State	to	“continue	

implementation	 of	 the	 system	 of	 ranked-choice	 voting	 for	 the	 June	 12,	 2018	

primary	 election	 in	 accordance	 with	 21-A	 M.R.S.	 §	 1(27-C)	 and	 21-A	 M.R.S.	

§	723-A.”9		Comm.	for	Ranked-Choice	Voting,	AUGSC-CV-2018-24,	at	13-14.		No	


     8		 Meanwhile,	 the	 Secretary	 of	 State	 posted	 draft	 rules	 detailing	 the	 procedures	 for	 the	
administration	 of	 elections	 using	 ranked-choice	 voting.	 	 Department	 of	 the	 Secretary	 of	 State,	
Proposed	 Rules	 Governing	 the	 Administration	 of	 Elections	 Determined	 by	 Ranked-Choice	 Voting	
(Mar.	 28,	 2018),	 http://www.maine.gov/sos/cec/elec/upcoming/pdf/250rcv.pdf;	 see	 P.L.	2017,	
ch.	316,	§	10	(effective	Feb.	5,	2018)	(to	be	codified	at	21-A	M.R.S.	§	723-A(5-A)).	
	
   9		In	particular,	the	court	concluded	that	the	Committee	had	met	its	burden	to	establish	a	likelihood	

of	success	on	the	merits	of	its	claim	that	the	intent	of	the	citizens	in	enacting	the	ranked-choice	voting	
statute	 was	 to	 apply	 ranked-choice	 voting	 to	 the	 primary	 elections,	 notwithstanding	 other	
preexisting	 statutory	 language	 to	 the	 contrary.	 	 Comm.	 for	 Ranked-Choice	 Voting	 v.	 Sec’y	 of	 State,	
AUGSC-CV-2018-24,	at	11-13	(Me.	Super.	Ct.,	Kennebec	Cty.,	Apr.	3,	2018);	see	Ingraham	v.	Univ.	of	
Me.	at	Orono,	441	A.2d	691,	693	(Me.	1982)	(setting	out	the	criteria	for	obtaining	injunctive	relief).	
                                                                                        9	

appeal	from	that	order	has	been	taken,	and	the	parties	to	that	proceeding	have	

indicated	that	no	appeal	will	be	pursued.	

      [¶13]	 	 On	 the	 same	 day	 that	 the	 Superior	 Court	 declared	 that	

ranked-choice	voting	would	be	applicable	to	the	primary	elections,	the	Maine	

Senate	 filed	 a	 five-count	 complaint	 against	 the	 Secretary	 of	 State	 seeking	

declaratory	and	injunctive	relief	to	halt	the	implementation	of	ranked-choice	

voting	in	the	primary	elections.		The	parties	agreed	to	a	stipulated	record,	and,	

by	order	dated	April	11,	2018,	the	Superior	Court	reported	to	us,	pursuant	to	

M.R.	App.	P.	24(a),	the	following	questions.	

      1.	 	 Has	 the	 Senate	 proven,	 on	 the	 Stipulated	 Record	 appended	
            hereto,	 that	 the	 Secretary	 of	 State’s	 commitment	 or	
            expenditure	 of	 funds	 for	 the	 purpose	 of	 implementing	
            ranked-choice	 voting	 in	 the	 June	 12,	 2018	 primary	 election	
            constitutes	 a	 violation	 of	 the	 Legislature’s	 appropriation	
            authority	 or	 the	 Separation	 of	 Powers	 clause	 in	 the	 Maine	
            Constitution,	 Article	 III,	 §	 2,	 where	 the	 appropriation	 for	 the	
            Secretary	of	State	in	the	biennial	budget	law	(P.L.	2017,	c.	284)	
            does	not	contain	language	explicitly	referencing	ranked-choice	
            voting	 and	 the	 enactment	 of	 P.L.	 2017,	 c.	 316	 was	 partially	
            suspended	by	a	People’s	Veto	Petition?		
      	
      2.	 	 Has	 the	 Senate	 proven,	 on	 the	 Stipulated	 Record	 appended	
            hereto,	 that	 the	 current	 statutory	 framework,	 including	
            without	 limitation	 21-A	 M.R.S.	 §	 723-A,	 does	 not	 provide	
            sufficient	authority	for	the	Secretary	of	State	to	arrange	for	the	
            retrieval	and	transport	of	ballots	cast	by	voters	at	the	June	12,	
            2018	primary	election	from	municipalities	to	a	central	location	
            in	 order	 to	 determine	 the	 winners	 of	 the	 election	 by	
            ranked-choice	voting?	
10	

        	
        3.	 	 Has	 the	 Senate	 proven,	 on	 the	 Stipulated	 Record	 appended	
              hereto,	 that	 the	 current	 statutory	 framework,	 including	
              without	 limitation	 21-A	 M.R.S	 §§	 1(27-C),	 1(35-A),	 339,	 695,	
              722(1),	 723(1),	 some	 of	 which	 are	 suspended	 by	 the	 filing	 of	
              the	 People’s	 Veto	 Petition	 pursuant	 to	 the	 Constitution	 of	
              Maine,	art.	IV,	pt.	3,	§	17,	prohibits	determining	the	winners	of	
              the	June	12,	2018	primary	election	by	ranked-choice	voting?	
        	
        4.			Has	the	Senate	shown	that	it	has	standing	to	bring	any	and	all	of	
             the	legal	claims	set	forth	in	its	Complaint?	
        	
        5.		Has	the	Senate	shown	that	any	or	all	of	the	legal	claims	set	forth	
             in	 the	 Senate’s	 Complaint	 are	 justiciable	 under	 the	 political	
             question	doctrine?	
        	
        6.		Has	the	Senate	shown	that	any	or	all	of	the	legal	claims	set	forth	
             in	its	complaint	are	ripe	for	adjudication?	
        	
        7.		Has	the	Senate	identified	a	cause	of	action	for	any	of	the	legal	
             claims	set	forth	in	its	Complaint?	
	
                                              II.		DISCUSSION	
	
A.	     Reported	Questions		

        [¶14]		We	begin	by	addressing	the	vehicle	by	which	this	matter	reaches	

us—a	Report	pursuant	to	M.R.	App.	P.	24(a).10		Because	there	has	been	no	trial	


    10		Maine	Rule	of	Appellate	Procedure	24(a)	provides,	

    	
              (a)	 Report	 by	 Agreement	 of	 Important	 or	 Doubtful	 Questions.	 	 When	 the	
        trial	 court	 is	 of	 the	 opinion	 that	 a	 question	 of	 law	 presented	 to	 it	 is	 of	 sufficient	
        importance	or	doubt	to	justify	a	report	to	the	Law	Court	for	determination,	it	may	so	
        report	when:	
           	
              (1)	all	parties	appearing	agree	to	the	report;		
                 	
                                                                                                  11	

court	 adjudication	 of	 facts	 or	 other	 matters	 ordinarily	 resolved	 by	 the	 trial	

court,	we	do	not	automatically	accept	such	a	report.		Conservatorship	of	Emma,	

2017	 ME	 1,	 ¶	7,	 153	 A.3d	 102.	 	 “When	 the	 trial	 court	 reports	 questions	 for	

review,	 we	 independently	 determine	 whether	 acceptance	 of	 the	 report	 is	

consistent	with	our	basic	function	as	an	appellate	court	or	would	improperly	

place	us	in	the	role	of	an	advisory	board”	due	to	the	lack	of	a	final	trial	court	

judgment	to	review.		Id.	(quotation	marks	omitted).		Although	we	emphasize	

that	the	acceptance	of	a	reported	question	is	the	exception,	not	the	rule,	see	id.,	

in	 these	 unusual	 circumstances,	 we	 do	 accept	 the	 Report	 pursuant	 to	

Rule	24(a).			

B.	   Question	3	

      [¶15]	 	 We	 address	 Question	 3	 first.	 	 The	 Senate	 asks	 whether	 the	

contradiction	between	the	application	of	ranked-choice	voting	to	the	primary	

elections	 delineated	 in	 21-A	 M.R.S.	 §	 1(27-C)	 and	 the	 plurality	 provision	 for	




           (2)	there	is	agreement	as	to	all	facts	material	to	the	appeal;	and	
              	
           (3)	the	decision	thereon	would,	in	at	least	one	alternative,	finally	dispose	of	the	
           action.	
12	

primary	elections	described	in	21-A	M.R.S.	§	723(1)	prevents	the	Secretary	of	

State	from	implementing	ranked-choice	voting	in	the	June	12,	2018,	primary.	

	        [¶16]	 	 The	 Senate’s	 argument	 on	 Question	 3	 addresses	 the	 very	 issue	

decided	 by	 the	 Superior	 Court	 in	 Committee	 for	 Ranked-Choice	 Voting	 v.	

Secretary	 of	 State,	 AUGSC-CV-2018-24	 (Me.	 Super.	 Ct.,	 Kennebec	 Cty.,	 Apr.	 3,	

2018).		Had	the	parties	in	this	case	been	able	to	fully	address	the	issue	of	the	

Senate’s	 decision	 not	 to	 seek	 intervention	 in	 Committee	 for	 Ranked-Choice	

Voting,	 it	 is	 possible	 that	 we	 would	 have	 determined	 that	 the	 Senate	 was	

precluded	from	advancing	the	same	argument	now.		See,	e.g.,	Taylor	v.	Sturgell,	

553	 U.S.	 880,	 893-95	 (2008)	 (identifying	 six	 circumstances	 in	 which	 the	

assertion	 of	 collateral	 estoppel	 is	 permitted	 against	 a	 nonparty	 under	 the	

federal	 common	 law).	 	 We	 have	 never	 addressed	 the	 issue	 of	 nonparty	

preclusion	in	these	circumstances,	however,	and	we	do	not	take	this	occasion	

to	opine	on	it	now.		Accordingly,	we	address	the	merits	of	Question	3.			

         [¶17]	 	 For	 decades,	 Maine’s	 election	 laws	 have	 explicitly	 provided	 that	

the	winner	of	a	primary	election	is	determined	by	a	plurality	of	the	votes.		See	

21-A	 M.R.S.	 §723(1);	 P.L.	 1985,	 ch.	 161,	 §	 6	 (effective	 Sept.	 19,	 1985).11		



    11	 	 Public	 Law	 1985,	 ch.	 161,	 repealed	 the	 prior	 title	 21	 M.R.S.A,	 generally	 governing	 election	

practices,	and	replaced	title	21	with	title	21-A,	which	has	since	governed	election	laws.		P.L.	1985,	
ch.	161,	§§	5-6	(effective	Sept.	19,	1985).	
                                                                                  13	

Section	723(1)	provides,	in	pertinent	part,	“[i]n	a	primary	election,	the	person	

who	receives	a	plurality	of	the	votes	cast	for	nomination	.	.	.	is	nominated	for	

that	office.”	21-A	M.R.S.	§	723(1).		When	the	RCVA	was	enacted	by	the	citizens’	

initiative	in	2016,	it	addressed	the	application	of	ranked-choice	voting	to	the	

primary	 elections	 through	 the	 enactment	 of	 21-A	 M.R.S.	 §	 1(27-C),	 which	

declared	 that	 an	 office	 elected	 by	 ranked-choice	 voting	 “includes	 any	

nominations	by	primary	 election	to	such	offices.”		L.D.	1557,	§	1.		 The	RCVA,	

however,	 contained	 no	 reference	 to	 or	 amendment	 of	 section	 723(1),	 thus	

creating	a	direct	conflict	in	the	applicable	statutory	provisions.			

      [¶18]	 	 When	 the	 RCVA	 was	 addressed	 by	 the	 Legislature	 in	 2017,	 the	

reference	in	section	723(1)	to	plurality	voting	for	primary	elections	was	left	in	

place	until	December	1,	2021.		P.L.	2017,	ch.	316,	 §	6.		 At	the	same	time,	the	

format	of	21-A	M.R.S.	§	1(27-C)	was	amended	so	that,	upon	a	later	effective	date,	

primary	elections	would	proceed	as	follows:		

            27-C.	 Elections	 determined	 by	 ranked-choice	 voting.	
      “Elections	determined	by	ranked-choice	voting”	means:	
      	
            A.		Primary	elections	for	the	offices	of	United	States	Senator,	
            United	 States	 Representative	 to	 Congress,	 Governor,	 State	
            Senator	and	State	Representative.					
	
P.L.	2017,	ch.	316,	§	1.		
         	
14	

        [¶19]		As	a	result	of	the	people’s	veto,	the	changes	to	section	723(1)	that		

deferred	 rank-choice	 voting	 in	 primary	 elections	 for	 several	 years	 were	

suspended,	thus	removing	any	temporal	impediment	to	the	original	plurality	

language	of	section	723(1).		See	Me.	Const.	art.	IV,	pt.	3,	§	17(2).		Separately,	the	

requirement	 of	 ranked-choice	 voting	 in	 the	 primary	 elections	 established	 by	

21-A	 M.R.S.	 §	1(27-C)	 became	 immediately	 effective	 and	 would	 apply	 to	 the	

June	2018	primary	elections.		Because	determining	the	winner	of	an	election	

through	plurality	voting	is	inconsistent	with	determining	the	winner	through	a	

ranked-choice	 voting	 process,	 see	 Opinion	 of	 the	 Justices,	 2017	 ME	 100,	

¶¶	64-69,	162	A.3d	188,12	the	two	statutes	are	in	conflict.		

        [¶20]	 	 The	 legal	 issue	 presented	 by	 the	 conflict	 presents	 an	 age-old	

question—which	 of	 two	 conflicting	 provisions	 applies?	 	 See,	 e.g.	 Knight	 v.	

Aroostook	 River	 R.R.	 Co.,	 67	 Me.	 291,	 293	 (1877).13	 	 When	 a	 more	 recent	


   12		We	acknowledge	that	an	Opinion	of	the	Justices	is	advisory	only,	and	it	does	not	provide	binding	

precedent.		Me.	Const.	art.	VI,	§	3;	Opinion	of	the	Justices,	2017	ME	100,	¶	9,	162	A.3d	188.		Through	
this	 opinion,	 we	 adopt	 the	 referenced	 reasoning	 in	 full	 without	 reciting	 the	 analysis	 verbatim.		
Opinion	 of	 the	 Justices,	 2017	 ME	 100,	 ¶¶	 64-69,	 162	 A.3d	 188	 (advising	 that	 “the	 Ranked-Choice	
Voting	Act	is	in	direct	contradiction	to	the	plurality	requirements	of	the	Maine	Constitution”).	
   		
   13
       Quoting	a	Massachusetts	case,	Commonwealth	v.	Kelliher,	94	Mass.	(12	Allen)	480,	481	(1866),	
with	approval,	we	said	in	Knight	v.	Aroostook	River	Railroad	Co.,	67	Me.	291,	293	(1877),		
	
        [W]henever	a	statute	is	passed	which	embraces	all	the	provisions	of	previous	statutes	
        on	 the	 same	 subject,	 the	 new	 statute	 operates	 as	 a	 repeal	 of	 all	 antecedent	
        enactments.	 This	 well	 settled	 rule	 of	 interpretation	 is	 founded	 on	 the	 reasonable	
        inference	that	the	legislature	cannot	be	supposed	to	have	intended	that	there	should	
        be	two	distinct	enactments	embracing	the	same	subject	matter	in	force	at	the	same	
                                                                                                          15	

amendment	 to	 a	 Maine	 statute	 directly	 conflicts	 with	 an	 older	 provision,	 we	

must,	 as	 always,	 determine	 the	 intent	 of	 the	 Legislature,	 and	 the	 question	

becomes	whether	the	older	provision	has	been	repealed	“by	implication.”		Blair	

v.	State	Tax	Assessor,	485	A.2d	957,	959	(Me.	1984).		We	apply	this	method	of	

statutory	construction		

        when	a	later	enactment	encompasses	the	entire	subject	matter	of	
        an	 earlier	 act,	 or	 when	 a	 later	 statute	 is	 inconsistent	 with	 or	
        repugnant	to	an	earlier	statute.		When	a	later	statute	does	not	cover	
        the	earlier	act	in	its	entirety,	but	is	inconsistent	with	only	some	of	
        its	 provisions,	 a	 repeal	 by	 implication	 occurs	 to	 the	 extent	 of	the	
        conflict.		
	
Id.	(citations	omitted).	

        [¶21]	 	 In	 the	 matter	 before	 us,	 there	 is	 both	 a	 direct	 conflict	 in	 the	

statutorily	provided	method	of	voting	in	Maine	primary	elections	and	a	clarity	

of	 purpose	 regarding	 the	 most	 recent	 enactment.14	 	 See	 Lewiston	 Firefighters	

Assoc.	v.	City	of	Lewiston,	354	A.2d	154,	159-160	(Me.	1976);	see	also	Opinion	of	

the	Justices,	311	A.2d	103,	108	(Me.	1973).	




          time,	and	that	the	new	statute,	being	the	most	recent	expression	of	the	legislative	will,	
          must	be	deemed	a	substitute	for	previous	enactments,	and	the	only	one	which	is	to	
          be	regarded	as	having	the	force	of	law.	
          	
   14	 	 Although	 we	 would	 not	 apply	 concepts	 of	 implicit	 repeal	 in	 doubtful	 cases,	 see	 Lewiston	

Firefighters	Assoc.	v.	City	of	Lewiston,	354	A.2d	154,	159	(Me.	1976),	there	is	no	doubt	about	the	direct	
conflict	in	this	case.		
16	

       [¶22]		The	consistent	and	explicit	purpose	of	the	citizens’	initiative	and	

the	 people’s	 veto	 has	 been	 to	 transition	 Maine	 elections	 to	 a	 system	 of	

ranked-choice	 voting.	 	 The	 wisdom	 of	 ranked-choice	 voting	 is	 not	 before	 us.		

Our	 role	 is	 to	 determine	 and	 effectuate	 the	 intent	 of	 the	 legislation	 unless	 it	

conflicts	with	the	Maine	Constitution	or	the	United	States	Constitution.		Neither	

Constitution	is	implicated	by	the	questions	presented	 here,	but	the	statutory	

conflict	is	clear.		Despite	the	existing	reference	to	plurality	voting	in	the	primary	

elections	in	section	723(1),	both	the	RCVA	as	first	enacted	by	the	people	in	2016	

and	 the	 amendments	 to	 ranked-choice	 primary	 voting	 enacted	 by	 the	

Legislature	 in	 the	 Implementation	 Act	 in	 2017	 and	 immediately	 effectuated	

through	 the	 people’s	 veto	 expressly	 provide	 for	 primary	 elections	 to	 be	

governed	by	ranked-choice	voting.		L.D.	1557,	§	1;	P.L.	2017,	ch.	316,	§	1.	

       [¶23]		It	is	evident	that	the	ranked-choice	primary	provision	of	the	RCVA,	

21-A	M.R.S.	§	1(27-C),	enacted	by	the	people	through	the	initiative	process	and	

amended	 only	 in	 format	 by	 the	 Legislature	 in	 the	 Implementation	 Act,	 is	

“repugnant”	 in	 substance	 to	 the	 plurality	 provision	 in	 21-A	 M.R.S.	 §	 723(1).		

Lewiston	Firefighters	Assoc.,	354	A.2d	at	160.		Thus,	as	we	have	held,	“the	new	

statute,	being	the	most	recent	expression	of	the	legislative	will,	must	be	deemed	
                                                                                                          17	

a	 substitute	 for	 previous	 enactments.”	 Knight,	 67	 Me.	 at	 293	 (quoted	 with	

approval	in	Lewiston	Firefighters	Assoc.,	354	A.2d	at	160).	

       [¶24]	 	 Accordingly,	 we	 conclude	 that	 the	 “plurality”	 provision	 of	

21-A	M.R.S.	§	723(1)	has	been	implicitly	repealed	by	the	most	recent	provision	

of	law	addressing	the	ranked-choice	voting	method	to	be	employed	in	the	June	

primary	elections,	21-A	M.R.S.	§	1(27-C).15		Pursuant	to	21-A	M.R.S	§	1(27-C),	

ranked-choice	 voting	 must	 be	 applied	 to	 the	 primary	 elections	 on	 June	 12,	

2018.				

C.	    Question	1	

       [¶25]	 	 Through	 Question	 1,	 the	 Senate	 seeks	 a	 declaration	 that	 the	

Secretary	of	State	lacks	constitutional	authority	to	commit	and	expend	public	

monies	 for	 the	 implementation	 of	 ranked-choice	 voting	 in	 the	 absence	 of	 an	

explicitly	 targeted	 appropriation	 by	 the	 Legislature.	 	 Assuming	 without	

deciding	that	the	Senate	has	standing	to	assert	such	a	claim,	we	conclude	that	

Question	1	is	not	justiciable.			

       [¶26]	 	 We	 have	 long	 recognized	 a	 host	 of	 considerations	 according	 to	

which	we	will	decline	to	exercise	jurisdiction;	we	refer	to	this	as	the	“universal	

rule”	of	justiciability.		Opinion	of	the	Justices,	2017	ME	100,	¶	15,	162	A.3d	188	


                                                                                  	 Court	 in	 Committee	 for	
  15	 	 This	 determination	 is	 consistent	 with	 the	 decision	 of	 the	 Superior

Ranked-Choice	Voting,	AUGSC-CV-2018-24,	at	11-13.	
18	

(quotation	marks	omitted).		Justiciability	regards	“the	fitness	of	the	issues	for	

judicial	decision.”		New	England	Tel.	&	Tel.	Co.	v.	Pub.	Utils.	Comm’n,	448	A.2d	

272,	302	(Me.	1982)	(quotation	marks	omitted).	

      [¶27]		In	the	context	of	the	matter	at	bar,	the	requirement	of	justiciability	

demands	 that	 our	 authority	 to	 decide	 a	 matter	 is	 limited	 by	 that	 most	 basic	

tenet	 of	 our	 governmental	 structure—the	 constitutionally-mandated	

separation	of	powers.		See	Me.	Const.	art.	III,	§	2;	Bouchard	v.	Dep’t	of	Pub.	Safety,	

2015	 ME	 50,	 ¶	 10,	 115	 A.3d	 92.	 	 The	 Maine	 Constitution	 requires	 both	 that	

“[t]he	powers	of	this	government	shall	be	divided	into	3	distinct	[Branches],	the	

legislative,	executive	and	judicial”	and	that	“[n]o	person	or	persons,	belonging	

to	one	of	these	[Branches],	shall	exercise	any	of	the	powers	properly	belonging	

to	 either	 of	 the	 others,	 except	 in	 the	 cases	 herein	 expressly	 directed	 or	

permitted.”		Me.	Const.	art.	III,	§§	1-2;	see	Opinion	of	the	Justices,	2017	ME	100,	

¶	13,	162	A.3d	188.				

      [¶28]	 	 Like	 the	 federal	 courts,	 “our	 constitutional	 structure	 does	 not	

require	that	the	Judicial	Branch	shrink	from	a	confrontation	with	the	other	two	

coequal	 branches.”	 	 Raines	 v.	 Byrd,	 521	 U.S.	 811,	 833	 (1997)	 (Souter,	 J.,	

concurring)	 (alterations	 omitted)	 (quotation	 marks	 omitted).	 	 Nevertheless,	

there	are	some	matters	in	which	we	will	exercise	judicial	restraint	by	refusing	
                                                                                        19	

to	adjudicate	matters	where	the	adjudication	“would	involve	an	encroachment	

upon	 the	 executive	 or	 legislative	 powers.”	 	 Wright	 v.	 Dep’t	 of	 Def.	 &	 Veterans	

Servs.,	623	A.2d	1283,	1285	(Me.	1993)	(quotation	marks	omitted);	see	Turner	

v.	Safley,	482	U.S.	78,	85	(1987)	(“[S]eparation	of	powers	concerns	counsel	 a	

policy	 of	 judicial	 restraint.”),	 superseded	 by	 statute,	 Religious	 Freedom	

Restoration	Act,	Pub.	L.	No.	103-141,	107	Stat.	1488.			

       [¶29]		Regarding	Question	1,	the	Senate	argues	that	the	general	allocation	

of	funding	to	the	Secretary	of	State	cannot	be	utilized	by	the	Secretary	of	State	

absent	an	explicitly-descriptive	allocation	of	appropriated	funds	to	particular	

actions	 related	 to	 voting	 and	 elections.	 	 The	 Senate	 has	 provided	 neither	 a	

constitutional	basis	for	this	argument	nor	a	statutory	foundation	for	its	claim	

to	restrict	the	authority	of	the	Secretary	of	State.			

       [¶30]	 	 Without	 pointing	 to	 a	 live,	 current	 constitutional	 violation,	 the	

Senate	asks	the	Court	to	involve	itself	in	the	Secretary	of	State’s	expenditure	of	

already-appropriated	funds.		The	separation	of	powers	doctrine	precludes	us	

from	entertaining	this	request	by	the	Senate	for	the	Court	to	assume	any	role	in	

supervising	 the	 legislatively	 delegated	 tasks	 of	 the	 Secretary	 of	 State.	 	 See	

generally,	21-A	M.R.S.	§§	21,	601–609	(2017).		 As	the	United	States	Supreme	

Court	 has	 announced,	 courts	 will	 not	 involve	 themselves	 in	 the	 “amorphous	
20	

general	supervision	of	the	operations	of	government.”		Raines,	521	U.S.	at	829.		

Question	1	is	not	justiciable.			

D.	    Question	2	

       [¶31]	 	 Regarding	 Question	 2,	 the	 Senate	 challenges	 the	 Secretary	 of	

State’s	 authority,	 in	 the	 absence	 of	 additional	 explicit	 legislative	 action,	 to	

arrange	for	the	security,	possession,	and	transportation	of	ballots	in	a	ranked-

choice	 voting	 election.	 	 As	 with	 Question	 1,	 we	 are	 not	 persuaded	 by	 the	

suggestion	 that	 the	 logistics	 of	 implementing	 ranked-choice	 voting	 create	 a	

constitutional	 crisis	 sufficient	 for	 us	 to	 ignore	 the	 separation	 of	 powers	

problems	inherent	in	these	circumstances.		Question	2	regards	the	epitome	of	

governmental	action	in	which	the	courts	lack	authority	to	meddle	pursuant	to	

the	separation	of	powers	doctrine.		Question	2	is	not	justiciable.			

E.		   Questions	4	through	7	

       [¶32]	 	 The	 remaining	 questions	 have	 been	 resolved	 by	 our	 answers	 to	

Questions	1,	2,	and	3	and	are	therefore	moot.			

                                    III.		CONCLUSION	

	      [¶33]		We	have	accepted	the	Report	of	Questions	from	the	Superior	Court	

pursuant	 to	 M.R.	 App.	 P.	 24(a).	 	 As	 to	 Question	 3,	 we	 conclude	 that	
                                                                                     21	

ranked-choice	voting	is	the	law	of	Maine	with	regard	to	the	primary	elections	

on	June	12,	2018,	notwithstanding	any	contradiction	by	21-A	M.R.S.	§	723(1).				

	     [¶34]	 	 We	 have	 also	 determined	 that	 the	 courts	 of	 Maine	 will	 not	

adjudicate	 either	 of	 the	 remaining	 substantive	 questions	 presented	 by	 the	

Report—Questions	 1	 and	 2.	 	 These	 questions	 ask	 us	 to	 address	 the	 internal	

funding	and	administrative	decisions	of	the	Office	of	the	Secretary	of	State	and	

seek	the	Court’s	intervention	into	the	prospective	logistical	arrangements	for	

securing,	possessing,	and	transporting	the	ballots	during	the	primary	elections	

to	be	held	on	June	12,	2018.		We	conclude	that	these	questions,	which	reflect	

Counts	1	through	4	of	the	Senate’s	complaint,	cannot	be	adjudicated	because	

they	are	quintessentially	nonjusticiable.	

	     [¶35]		Finally,	the	need	to	answer	Questions	4,	5,	6,	and	7,	which	address	

justiciability,	is	obviated	by	our	answers	to	Questions	1,	2,	and	3.		The	issues	

raised	 in	 those	 four	 questions	 are	 moot.	 	 Thus,	 the	 matters	 raised	 by	 the	

Senate’s	 complaint,	 distilled	 to	 the	 seven	 questions	 presented	 here,	 are	 fully	

resolved	by	our	answers.	

	                          	
22	

         The	entry	is:	

                            Report	 accepted.	 	 Remanded	 to	 the	 Superior	
                            Court	 for	 entry	 of	 judgment	 on	 Count	 5	
                            (Question	3)	declaring	that	ranked-choice	voting	
                            shall	be	employed	in	the	June	12,	2018,	primary	
                            election,	and	dismissing	as	nonjusticiable	Counts	
                            1,	2,	3,	and	4	(Questions	1	and	2).	
                            	
                            Mandate	to	issue	forthwith.	
	
	      	    	      	     	       	
	
Timothy	C.	Woodcock,	Esq.	(orally),	Ryan	P.	Dumais,	Esq.,	and	Kady	S.	Huff,	
Esq.,	Eaton	Peabody,	Bangor,	for	the	Maine	State	Senate	
	
Phyllis	Gardiner,	Esq.	(orally),	and	Thomas	A.	Knowlton,	Esq.,	Office	of	the	
Attorney	General,	Augusta,	for	the	Secretary	of	State	
	
James	G.	Monteleone,	Esq.	(orally),	and	Michael	R.	Bosse,	Esq.,	Bernstein	Shur,	
Portland,	for	the	Committee	for	Ranked-Choice	Voting,	Lucas	St.	Clair,	Mark	
Eves,	Diane	Russell,	Betsy	Sweet,	and	Ben	Chipman	
	
Timothy	R.	Shannon,	Esq.,	Rachel	M.	Wertheimer,	Esq.,	Jonathan	Dunitz,	Esq.,	
Marie	M.	Mueller,	Esq.,	and	Samuel	Baldwin,	Esq.,	Verrill	Dana,	LLP,	Portland,	
for	amicus	The	League	of	Women	Voters	of	Maine		
	
	
Kennebec	County	Superior	Court	docket	number	CV-2018-51	
FOR	CLERK	REFERENCE	ONLY	
	
