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An Act To Establish Open Primaries for Certain Federal and State Offices
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 21-A MRSA §1, sub-§27-C, as repealed and replaced by PL 2017, c. 316, §1, is amended to read:
 
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;.
 
B.  General and special elections for the offices of United States Senator and United States Representative to Congress; and
Sec. 2.  21-A MRSA §1, sub-§§27-D and 27-E  are enacted to read:
 
27-D.  Elections subject to an open primary.     "Elections subject to an open primary" means the elections for the offices of United States Senator, United States Representative to Congress, Governor, State Senator and State Representative.
 
27-E.  Open primary election.     "Open primary election" means, in elections subject to an open primary, the regular election for the election of 2 candidates, regardless of enrollment status, who will appear on the ballot for the general election.
Sec. 3. 21-A MRSA §1, sub-§32, as amended by PL 1987, c. 423, §1, is further amended to read:
 
32. Primary election.   "Primary election" means the regular election for the election of nominees of a party for the general election or, for an election subject to an open primary, the open primary election.
Sec. 4. 21-A MRSA §1, sub-§35-A, as enacted by IB 2015, c. 3, §2, is amended to read:
 
35-A. Ranked-choice voting.   "Ranked-choice voting" means the method of casting and tabulating votes in an open primary election in which voters rank candidates in order of preference, tabulation proceeds in sequential rounds in which last-place candidates are defeated and the candidate2 candidates with the most votes in the final round is electedare nominated to appear on the ballot for the general election.
Sec. 5. 21-A MRSA §144, sub-§2, as amended by PL 2005, c. 453, §27, is further amended to read:
 
2. Party designation removed.   On receipt of the application, the registrar shall remove the party designation of the applicant from the central voter registration system. The registrar shall indicate in the central voter registration system that the applicant is ineligible to vote at a caucus or primary election, other than an open primary election, for 15 days by designating the party enrollment field with the letter "X." Fifteen days after receiving the application, the registrar shall enroll the applicant in the party requested and enter the new party designation in the party enrollment field.
 
This subsection does not apply in the case of a voter who changes enrollment under subsection 4.
Sec. 6. 21-A MRSA §144, sub-§3, as repealed and replaced by PL 2013, c. 457, §2, is amended to read:
 
3. Restrictions during change of enrollment.   Except as provided in subsection 4, a voter may not vote at a caucus, convention or primary election, other than an open primary election, for 15 days after filing an application to change enrollment. A voter may sign a primary nomination petition during the 15-day period after filing an application to change enrollment, and the voter's signature must be counted as valid, as long as the 15-day period has elapsed by the time the petition is certified pursuant to section 335, subsection 7 and the voter otherwise is qualified to sign a petition for that office. Notwithstanding subsection 4, a voter must file an application to change enrollment prior to January 1st to be eligible to file a petition as a candidate in that election year.
Sec. 7. 21-A MRSA §334, as amended by PL 2009, c. 253, §16, is further amended to read:
§ 334.Qualification of candidate for primary nomination
A candidate for nomination by primary election, other than an open primary election, must file a primary petition and consent under sections 335 and 336. The candidate must be enrolled, on or before March 15th, in the party named in the petition and must be eligible to file a petition as a candidate for nomination by primary election under section 144, subsection 3. The registrar in the candidate's municipality of residence must certify to that fact on a form designed by the Secretary of State.
Sec. 8. 21-A MRSA §§338 and 339, as enacted by PL 1985, c. 161, §6, are amended to read:
§ 338.Write-in candidates
AExcept as provided in section 442 for an open primary election, a person whose name will not appear on the printed primary ballot because hethe person did not file a petition and consent under sections 335 and 336, but who fulfills the other qualifications under section 334, may be nominated at the primary election as a write-in candidate in accordance with section 723, subsection 1.
§ 339.Time and nature of election
The primary election shallmust be held on the 2nd Tuesday of June of each general election year and, other than an open primary election, is considered to be a separate election for each party whichthat takes part in it. This includes the duties of public officials in announcing the election, providing forms and ballots, keeping records and any other matter necessary to effect the purpose of a primary election. A primary election shallmust be conducted the same as the general election, as nearly as practicable, for each party.
Sec. 9.  21-A MRSA §351, sub-§4  is enacted to read:
 
4.  Elections subject to an open primary.     A person may file a nomination petition pursuant to this subchapter as a candidate for the open primary election in an election subject to an open primary. A person may not file a nomination petition pursuant to this subchapter as a candidate for the general election in an election subject to an open primary.
Sec. 10. 21-A MRSA §353, as amended by PL 2009, c. 253, §19, is further amended to read:
§ 353.Qualification of candidate for nomination by petition
A person who seeks nomination by petition in an election other than an election subject to an open primary qualifies by filing a nomination petition and consent as provided in sections 354 and 355. If enrolled, the person must also withdraw enrollment in a party on or before March 1st to be eligible to file a petition as a candidate in that election year, as provided in section 145. The registrar in the candidate's municipality of residence must certify to that fact on a form designed by the Secretary of State.
Sec. 11. 21-A MRSA §354, sub-§7, ¶B, as amended by PL 2013, c. 131, §12, is further amended to read:
 
B. PetitionsExcept for petitions for nomination in an open primary, petitions must be delivered to the registrar, or clerk at the request or upon the absence of the registrar, for certification by 5 p.m. on May 25th in the election year in which the petitions are to be used, except that petitions for a slate of candidates for the office of presidential elector must be delivered for certification by 5 p.m. on July 25th in the election year in which the petitions are to be used.
Sec. 12. 21-A MRSA §354, sub-§8-A, as amended by PL 2013, c. 131, §13, is further amended to read:
 
8-A. Filed with the Secretary of State.   A nomination petition must be filed in the office of the Secretary of State by 5 p.m. on June 1st in the election year in which it is to be used, except that a nomination petition for a candidate for an election subject to an open primary must be filed in the Office of the Secretary of State by 5 p.m. on March 15th of the election year in which it is to be used and petitions for a slate of candidates for the office of presidential elector must be filed in the office of the Secretary of State by 5 p.m. on August 1st in the election year in which the petitions are to be used.
Sec. 13. 21-A MRSA §355, sub-§1, as amended by PL 2011, c. 534, §12, is further amended to read:
 
1. Consent.   The consent must contain a statement signed by the candidate that the candidate will accept the nomination of the general election except that the consent signed by a candidate for an election subject to an open primary must contain a statement signed by the candidate that the candidate will accept the nomination of the open primary election. The Secretary of State shall provide a form on which the consent of the candidate is made that must include a list of the statutory and constitutional requirements of the office sought by the candidate. The statement may be printed as a part of the nomination petition.
Sec. 14. 21-A MRSA §363, first ¶, as amended by PL 1993, c. 447, §3, is further amended to read:
The meeting of a political committee as required by sections 371, 373, 374-A, 381, 382 and 393 is governed by the following provisions.
Sec. 15. 21-A MRSA §365, first ¶, as amended by PL 2003, c. 510, Pt. A, §13, is further amended to read:
The political committee that has jurisdiction over the choice of a candidate for nomination or a nominee to fill a vacancy under sections 371, 373, 374-A, 381 and 382 is as follows.
Sec. 16. 21-A MRSA §371, as amended by PL 2015, c. 447, §11, is further amended to read:
§ 371.Candidates for nomination; vacancy
IfFor a primary other than an open primary election, if a candidate for nomination dies, withdraws at least 70 days before the primary or becomes disqualified after having filed the candidate's primary petition, so that a party has fewer candidates than there are offices to be filled, the vacancy may be filled by a political committee pursuant to section 363. The Secretary of State shall declare the vacancy pursuant to section 362-A. Less than 70 days before the primary election, a candidate may withdraw from the primary by providing a written notice to the Secretary of State that the candidate is withdrawing and will not serve if elected. The candidate's name will not be removed from the ballot, but upon receipt of the notice of late withdrawal, the Secretary of State shall instruct the local election officials in the candidate's electoral district to distribute notices with absentee ballots requested after that date and to post a notice at each voting place in the district informing voters that the candidate has withdrawn and that a vote for that candidate will not be counted. Notice of the late withdrawal must also be posted on the Secretary of State's publicly accessible website.A candidate who withdraws from an open primary election at least 70 days before the primary or becomes disqualified after having filed the candidate's petition may not be replaced.
Less than 70 days before the primary election, a candidate may withdraw from a primary by providing a written notice to the Secretary of State that the candidate is withdrawing and will not serve if elected. The candidate's name will not be removed from the ballot, but upon receipt of the notice of late withdrawal, the Secretary of State shall instruct the local election officials in the candidate's electoral district to distribute notices with absentee ballots requested after that date and to post a notice at each voting place in the district informing voters that the candidate has withdrawn and that a vote for that candidate will not be counted. Notice of the late withdrawal must also be posted on the Secretary of State's publicly accessible website.
Sec. 17. 21-A MRSA §372, as enacted by PL 1985, c. 161, §6, is repealed.
Sec. 18. 21-A MRSA §373, as amended by PL 2001, c. 310, §23, is repealed.
Sec. 19. 21-A MRSA §374-A, as amended by PL 2015, c. 447, §§12 and 13, is further amended to read:
§ 374-A.Withdrawal of candidates
 
1. Withdrawal and replacement of nominees for certain state offices.   The Secretary of State shall declare the vacancy as provided in section 362-A and a political committee may make a replacement nomination following a candidate's withdrawal only if a person nominated for an office, other than United States Senator, United States Representative to Congress or, Governor, State Senator or State Representative, at a primary election or by a political committee:
 
A. Withdraws on or before 5 p.m. of the 2nd Monday in July preceding the general election in accordance with section 367;
 
B. Withdraws because of a catastrophic illness, condition or injury that has permanently and continuously incapacitated the candidate and would prevent performance of the duties of the office sought, as long as the candidate or a member of the candidate's immediate family files with the Secretary of State a certificate accompanying the withdrawal request that describes the illness, condition or injury and is signed by a licensed physician; or
 
C. Dies prior to the general election.
 
2. Deadline for replacement of nominee.   A political committee may make a replacement nomination:
 
A. No later than 5 p.m. of the 4th Monday in July preceding the general election for a candidate who has withdrawn in accordance with subsection 1, paragraph A; or
 
B. As soon as practicable for a candidate who withdraws or is withdrawn in accordance with subsection 1, paragraph B or C.
 
3. Deadline for withdrawal.   A candidate for an office on the general election ballot must withdraw at least 70 days before the general election in order for the candidate's name to be removed from the ballot. Less than 70 days before the general election, a candidate may withdraw from the election by providing a written notice to the Secretary of State that the candidate is withdrawing and will not serve if elected. The candidate's name will not be removed from the ballot, but upon receipt of the notice of late withdrawal, the Secretary of State shall instruct the local election officials in the candidate's electoral district to distribute notices with absentee ballots requested after that date and to post a notice at each voting place in the district informing voters that the candidate has withdrawn and that a vote for that candidate will not be counted. Notice of the late withdrawal must also be posted on the Secretary of State's publicly accessible website.
 
4.  Replacement of candidates nominated in an open primary election.     If a candidate nominated for the office of United States Senator, United States Representative to Congress, Governor, State Senator or State Representative withdraws at least 70 days before the general election, the Secretary of State shall remove the name of the withdrawn candidate from the ballot and list as a replacement candidate the name of the candidate that received the 3rd most votes cast in the open primary election as determined by section 723-A, if any.
Sec. 20. 21-A MRSA §376, as amended by PL 2015, c. 447, §15, is further amended to read:
§ 376.Production of new ballots
 
1. Federal, gubernatorial or state legislative offices.   If a candidate or nominee for a federal or gubernatorial officethe office of United States Senator, United States Representative to Congress, Governor, State Senator or State Representative withdraws less than 70 days before any election, the Secretary of State is not required to produce new ballots.
 
2. Certain state offices.   The Secretary of State is required to produce new ballots only if a candidate for an office, other than United States Senator, United States Representative to Congress or, Governor, State Senator or State Representative, withdraws in accordance with section 374-A, subsection 1, paragraph A, B or C, a replacement candidate is nominated and a notification is filed with the Secretary of State by the appropriate committee of the political party making the nomination no later than 60 days before the election.
 
3. List of candidates.   Immediately after the last day for withdrawal, the Secretary of State shall list all names to be placed on the ballot for the general election.
Sec. 21.  21-A MRSA c. 5, sub-c. 8  is enacted to read:
SUBCHAPTER 8
OPEN PRIMARY ELECTIONS
§ 441. Qualification of candidate for open primary election; common ballot
Notwithstanding any other provision of this Title to the contrary, the names of all qualified candidates for an election subject to an open primary must appear on the same ballot for the open primary election. A candidate is qualified to appear on the open primary ballot if the candidate:
 
1.  Candidate enrolled in a party.     Filed a primary petition and consent that meets the requirements of sections 335 and 336, subject to challenge and appeal under section 337; or
 
2.  Unenrolled candidates.     Filed a nomination petition and consent that meets the requirements of sections 354 and 355, subject to challenge and appeal under section 356, and was certified by the Secretary of State pursuant to section 357.
§ 442. Declared write-in candidates
Notwithstanding any other provision of this Title to the contrary, a person who does not qualify to be listed on the open primary ballot pursuant to section 441 but who qualifies as a declared write-in candidate pursuant to section 722-A may be nominated as a write-in candidate at an open primary election.
§ 443. Voters at an open primary election
Notwithstanding any other provision of this Title to the contrary, all voters qualified to vote in the general election for United States Senator, United States Representative to Congress, Governor, State Senator and State Representative may vote in the open primary election for that office regardless of the voters’ enrollment status.
Sec. 22. 21-A MRSA §601, sub-§2, ¶D, as amended by PL 2009, c. 253, §24, is further amended to read:
 
D. At the end of the list of candidates for each office, there must be left as many blank spaces as there are vacancies to be filled, except for a ballot for an election subject to an open primary. TheseOn the ballot for an open primary election, 2 blank spaces must be left at the end of the list of candidates for the office. No blank spaces may be placed at the end of the list of nominees for the office on the general election ballot for an election subject to an open primary. The blank spaces left on the ballot under this paragraph may be used by a voter to write in the name of a person for whom the voter desires to vote, as provided in section 691, subsection 2 for a primary election or section 692, subsection 2 for a general election.
Sec. 23. 21-A MRSA §601, sub-§2, ¶J, as amended by PL 2017, c. 316, §3, is further amended to read:
 
J. For open primary elections determined by ranked-choice voting, the ballot must be simple and easy to understand and allow a voter to rank candidates for an office in order of preference. A voter may include no more than one2 write-in candidatecandidates among that voter's ranked choices for each office.
Sec. 24. 21-A MRSA §601, sub-§4, as amended by PL 2001, c. 310, §29, is further amended to read:
 
4. Distinctively colored.   When possible, election ballots must be printed on white paper. Each political party participating in a primary election other than an open primary election must have a separate ballot. The paper for each party's primary ballot must be printed or distinguished with a different color marking as determined by the Secretary of State. For municipalities that include more than one single member district of the State Senate or the House of Representatives, or parts of more than one single member district, the Secretary of State may prepare ballots with one or more distinctive color markings for each single member district or part of a single member district within the municipality.
Sec. 25. 21-A MRSA §673, sub-§1, ¶A, as corrected by RR 2011, c. 2, §21, is amended to read:
 
A. A voter or an election official may challenge another voter only upon personal knowledge or a reasonably supported belief that the challenged voter is unqualified. Only the following reasons for challenges may be accepted by the warden. The challenged person:
 
(2) Is not enrolled in the proper party, if voting in a primary election other than an open primary election;
 
(3) Is not qualified to be a registered voter because the challenged person:
 
(a) Does not meet the age requirements as specified in section 111, subsection 2 and section 111-A;
 
(b) Is not a citizen of the United States; or
 
(c) Is not a resident of the municipality or appropriate electoral district within the municipality;
 
(4) Registered to vote during the closed period or on election day and did not provide satisfactory proof of identity and residency to the registrar pursuant to section 121, subsection 1-A, except that only an election official may challenge for this reason;
 
(5) Did not properly apply for an absentee ballot;
 
(6) Did not properly complete the affidavit on the absentee return envelope;
 
(7) Did not cast the ballot or complete the affidavit before the appropriate witness;
 
(8) Communicated with someone as prohibited by section 754-A, subsection 1, paragraph B or subsection 3, paragraph B or D;
 
(9) Did not have the ballot returned to the clerk by the time prescribed;
 
(10) Voted using the name of another;
 
(11) Committed any other specified violation of this Title; or
 
(12) Voted using the wrong ballot for the appropriate electoral district or political party, if applicable.
Sec. 26. 21-A MRSA §723, sub-§1, as amended by PL 2017, c. 248, §5, is further amended to read:
 
1. Primary election.   In a primary election other than an open 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, except for write-in candidates under paragraph A.
 
A. A write-in candidate who complies with section 722-A and who fulfills the other qualifications under section 334 may be nominated at the primary election if that person receives a number of valid write-in votes equal to at least twice the minimum number of signatures required under section 335, subsection 5 on a primary petition for a candidate for that office.
 
B. The Secretary of State shall immediately certify by mail the nomination of each person nominated by the primary election.
Sec. 27.  21-A MRSA §723, sub-§§1-A and 1-B  are enacted to read:
 
1-A.  Open primary election.     In an open primary election, the 2 persons who receive the most votes cast as determined by section 723-A must be declared the winners of the open primary election and are nominated to be placed on the general election ballot for that office. The Secretary of State shall immediately certify by mail the nomination of each person to be placed on the general election ballot pursuant to this subsection.
 
1-B.  General election following an open primary.     In a general election for an election subject to an open primary, the nominee who receives a plurality of the votes cast for the office, as long as there is at least one vote cast for that office, is elected to that office. A write-in candidate may not be elected in a general election for an election subject to an open primary.
Sec. 28. 21-A MRSA §723-A, as amended by PL 2017, c. 316, §§8 to 10, is further amended to read:
§ 723-A.Determination of winners in an open primary election determined by ranked-choice voting
 
1. Definitions.   As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A. "Batch elimination" means the simultaneous defeat of multiple candidates for whom it is mathematically impossible to be elected.
 
B. "Continuing ballot" means a ballot that is not an exhausted ballot.
 
C. "Continuing candidate" means a candidate who has not been defeated.
 
D. "Exhausted ballot" means a ballot that does not rank any continuing candidate, contains an overvote at the highest continuing ranking or contains 2 or more sequential skipped rankings before its highest continuing ranking.
 
E. "Highest continuing ranking" means the highest ranking on a voter's ballot for a continuing candidate.
 
F. "Last-place candidate" means the candidate with the fewest votes in a round of the ranked-choice voting tabulation.
 
G. "Mathematically impossible to be elected," with respect to a candidate, means either:
 
(1) The candidate cannot be elected because the candidate's vote total in a round of the ranked-choice voting tabulation plus all votes that could possibly be transferred to the candidate in future rounds from candidates with fewer votes or an equal number of votes would not be enough to surpass the candidate2 candidates with the next-higher vote totaltotals in the round; or
 
(2) The candidate has a lower vote total than a candidate described in subparagraph (1).
 
H. "Overvote" means a circumstance in which a voter has ranked more than one candidate at the same ranking.
 
I. "Ranking" means the number assigned on a ballot by a voter to a candidate to express the voter's preference for that candidate. Ranking number one is the highest ranking, ranking number 2 is the next-highest ranking and so on.
 
J. "Round" means an instance of the sequence of voting tabulation steps established in subsection 2.
 
K. "Skipped ranking" means a circumstance in which a voter has left a ranking blank and ranks a candidate at a subsequent ranking.
 
2. Procedures.   Except as provided in subsections 3 and 4, the following procedures are used to determine the winnerwinners of an open primary election determined by ranked-choice voting. Tabulation must proceed in rounds. In each round, the number of votes for each continuing candidate must be counted. Each continuing ballot counts as one vote for its highest-ranked continuing candidate for that round. Exhausted ballots are not counted for any continuing candidate. The round then ends with one of the following 2 potential outcomes.
 
A. If there are 23 or fewer continuing candidates, the candidate2 candidates with the most votes isare declared the winnerwinners of the open primary election.
 
B. If there are more than 23 continuing candidates, the last-place candidate is defeated and a new round begins.
 
3. Ties.   A tie under this section between the 2nd and 3rd candidates for the most votes in the final round or a tie between last-place candidates in any round must be decided by lot, and the candidate chosen by lot is defeated. The result of the tie resolution must be recorded and reused in the event of a recount. Election officials may resolve prospective ties between candidates before the election.
 
4. Modification of ranked-choice voting ballot and tabulation.   Modification of a ranked-choice voting ballot and tabulation is permitted in accordance with the following.
 
A. The number of allowable rankings may be limited to no fewer than 6.
 
B. Two or more candidates may be defeated simultaneously by batch elimination in any round of tabulation.
 
5. Effect on rights of political parties.   For all statutory and constitutional provisions in the State pertaining to the rights of political parties, the number of votes cast for a party's candidate for an office determined by ranked-choice voting is the number of votes credited to that candidate after the initial counting in the first round described in subsection 2.
 
5-A. Rules.   The Secretary of State shall adopt rules for the proper and efficient administration of elections determined by ranked-choice voting. At a minimum, rules required under this subsection must include procedures, as determined appropriate by the Secretary of State, for requesting and conducting recounts of the results as determined in the rounds of tabulation described in subsection 2. Rules adopted pursuant to this subsection are routine technical rules as defined by Title 5, chapter 375, subchapter 2-A.
 
6. Application.   This section applies to elections held on or after January 1, 2018.
Sec. 29. 21-A MRSA §732, sub-§1, as enacted by PL 1985, c. 161, §6, is amended to read:
 
1. Primary election.   In a primary election other than an open primary election, the Secretary of State shall notify each person involved in the tie to be present at histhe Secretary of State's office at a certain time. At that time, the Secretary of State shall select the nominee publicly by lot.
Sec. 30. 21-A MRSA §812, sub-§5, as enacted by PL 1985, c. 161, §6, is amended to read:
 
5. Voting restricted at primary.   It must prevent a voter from voting for the nomination of candidates of more than one party at a primary election other than an open primary election.
Sec. 31. 21-A MRSA §825, sub-§1, as enacted by PL 1985, c. 161, §6, is amended to read:
 
1. Primary election.   In a primary election other than an open primary election, the warden or, in histhe warden's absence, a designated election clerk must activate each voting machine so that a voter can vote only for the candidates of the political party in which hethe voter is enrolled.
Sec. 32. 21-A MRSA §843, sub-§4, as enacted by PL 1985, c. 161, §6, is amended to read:
 
4. Voting restricted at primary.   It must prevent a voter from voting for the nomination of candidates of more than one party at a primary election other than an open primary election.
 
SUMMARY
This bill provides for open primary elections for the elections for United States Senator, United States Representative to Congress, Governor, State Senator and State Representative. All of the candidates for those offices, including candidates enrolled in a party and unenrolled candidates, must appear on the same open primary ballot. All qualified voters, regardless of enrollment status, are eligible to vote in open primary elections.
The votes in an open primary election must be tabulated using ranked-choice voting, except that the 2 candidates who receive the most votes are declared the winners of the open primary and their names must appear on the ballot for the general election. If one of the 2 candidates who received the most votes at the open primary withdraws from the race at least 70 days before the general election, that candidate must be replaced with the candidate who received the 3rd most votes in the open primary election, if any. Voters may not vote for a write-in candidate in a general election that was preceded by an open primary election. As a result, ranked-choice voting will no longer be used in general elections for United States Senator and United States Representative to Congress. Instead, the candidate who receives a plurality of votes at the general election will be elected to those offices.