Last month, in our Open Letter to Maine’s Legislature, we urged lawmakers to stop advancing LD 1666, the bill that would force ranked-choice voting (RCV) on elections for Governor, State Senator, and State Representative.
We reminded lawmakers of the Maine Constitution’s clear plurality requirement, the Maine Supreme Judicial Court’s unanimous 2017 advisory opinion declaring RCV incompatible with that requirement, and Governor Janet Mills’ own words as Attorney General that RCV is a “fundamentally different voting methodology” that violates the Constitution’s plain text and history.
Nothing has changed since then except the Legislature’s stubborn determination to ignore the law. As a result of this stubbornness, the Legislature moved forward with requesting a “solemn occasion” advisory opinion from the Maine Supreme Judicial Court. On February 11, 2026, the Court formally accepted the Legislature’s request for an advisory opinion on LD 1666 and publicly invited interested parties to file legal briefs addressing whether the bill is constitutional.
As briefs begin to arrive in response to the Court’s invitation, one submission stands out, the detailed 34-page brief filed by Attorney General Aaron Frey. In answering the question of whether ranked-choice voting for Representative, Senator, and Governor is consistent with provisions of the Maine Constitution setting forth the mechanics of how those elections are to be conducted and determined, AG Frey wrote very clearly “The correct answer to the Legislature’s question is ‘no.’”
This means despite being a staunch Democrat, even AG Frey reached the only conclusion that is possible to reach if you are being honest about the law: RCV for these races is unconstitutional.
NOTHING HAS CHANGED SINCE THE 2017 RULING
AG Frey writes in this brief that nothing material has changed since the Justices’ 2017 ruling, and he is correct.
The cosmetic word changes in LD 1666 such as swapping “defeated” for “eliminated,” and relabeling plurality voting as “single-choice voting,” do not alter how RCV actually works. It still requires sequential rounds of tabulation, elimination of candidates, and reallocation of votes. A first-round plurality winner (like Bruce Poliquin in 2018) can still lose after transfers. That remains flatly incompatible with the Maine Constitution’s command that the candidate with a plurality of votes returned by municipal officials is the winner.
To once again quote our Attorney General, “The Justices’ reasoning was sound in 2017, and it remains sound today.”
OUT-OF-STATE RULINGS AND CLEVER MATH TRICKS DON’T RESCUE THE BILL
The Attorney General’s brief also directly dismantles the two main arguments supporters of LD 1666 have been leaning on.
First, it addresses the Legislature’s heavy reliance on the 2022 Alaska Supreme Court decision in Kohlhaas v. State, which upheld ranked-choice voting under Alaska’s constitution. AG Frey calls that ruling “unpersuasive” and irrelevant here, noting that Alaska’s constitution contains none of the detailed local-counting requirements or explicit “plurality of all votes returned” language that Maine’s Constitution has.
Second, the brief rejects the common “exhausted ballot” defense. Frey argues that even if you crunch the numbers so that the final-round winner sometimes falls below 50% of all ballots cast, ranked-choice voting still refuses to declare the first-round plurality winner and instead forces extra rounds of elimination and vote reallocation that the Maine Constitution simply does not allow.
As Frey makes clear, these are not new developments; they are the same arguments the Justices already considered and rejected in 2017. Cosmetic statutory tweaks and out-of-state case citations cannot override Maine’s plain constitutional text.
AN IMPORTANT HYPOTHETICAL
In his brief, AG Frey even takes time to dismantle LD 1666’s main legal strategy with a powerful hypothetical. He asks the reader to imagine if the Legislature tried to bring back the old majority-vote runoff system that Maine rejected in the 19th century. Everyone would agree that the system violates the Constitution’s plurality requirement.
Yet Frey points out that lawmakers could not magically make it constitutional simply by redefining a “vote” to include ballots from both rounds and then labeling the final-round winner as having received a “plurality.” Accepting that kind of trick would allow politicians to override the Constitution through ordinary legislation.
The exact same flaw exists in LD 1666. No amount of cosmetic rewording or clever relabeling can turn ranked-choice voting into the simple, straightforward plurality system the Maine Constitution demands.
THIS IS A CONSTITUTIONAL ISSUE, NOT A PARTISAN ONE
This is not a partisan issue. It is a constitutional one.
A Democratic Attorney General serving under a Democratic Governor has now told the Supreme Judicial Court, in clear, written arguments, that LD 1666 violates the Maine Constitution for the exact same reasons the Justices identified in their unanimous 2017 opinion, and that Maine Policy Institute has highlighted since the bill was first introduced. Even more telling, in addition to arguing to the Court that LD 1666 violates the Maine Constitution, AG Frey’s brief is also effectively warning the Legislature that, from the executive branch’s perspective, proceeding with this bill would be unconstitutional.
The 2017 opinion was unanimous, issued by a court with justices appointed by both Republican and Democratic governors. That bipartisan clarity has not changed. As we detailed in our report A False Majority: The Failed Experiment of Ranked-Choice Voting, RCV is already confusing for voters, distorts election outcomes, and undermines confidence in the results. Forcing it onto Maine’s most important state races without a constitutional amendment would only compound that damage, injecting unnecessary legal chaos and uncertainty right before the critical 2026 elections for Governor and every seat in the Legislature.
CONCLUSION
Attorney General Aaron Frey’s comprehensive submission to the Supreme Judicial Court reaffirms what everybody should have already known: LD 1666 simply cannot be reconciled with the Maine Constitution’s explicit instructions for deciding elections. His review reinforces the irreconcilable difference between the bill’s multi-step elimination process and the straightforward requirement that the candidate with the most votes wins outright.
This stance from the state’s chief legal officer under a Democratic governor sends a powerful signal that reaches across party lines. It shows the core problem Democrat lawmakers must face is not political will but the basic separation of powers which dictates that lawmakers cannot rewrite constitutional rules through everyday legislation.
As Maine gears up for the 2026 races, continuing to pursue expanded RCV risks injecting avoidable disputes and eroding voter confidence. The Legislature should immediately abandon LD 1666 and respect the Constitution’s explicit requirements.
