As the boom of Independence Day fireworks recedes and this year’s political campaigns rev up, Mainers will turn to practicing two of the core freedoms we celebrated on the Fourth of July: the freedom to engage in political debate and, ultimately, the freedom to vote for the candidates of our choice. However, while we consider voting central to our political process and lives as Americans, we nevertheless maintain a strange relationship with our voting laws.
On the one hand, we view voting as a right fundamental to our citizenship. Each of us no doubt feels that voting is both an important tool for creating good public policy and also an end unto itself — an important act by which we express our political and moral views.
On the other hand, few Americans understand that the Constitution does not explicitly grant Americans a right to vote and, therefore, that it gives state policymakers wide latitude to create laws that determine how Americans access the ballot.
In that way, voting is different from many of the basic freedoms that Americans enjoy.
The protections of the First Amendment mean that the Maine Legislature cannot pass a law that tells people when or where they may write books. But, under the federal Constitution, our Legislature can determine how we vote, when we vote, where we vote and even who among us gets to vote (as long as the Legislature doesn’t discriminate based on race, gender and other similar characteristics).
Despite this power, and despite how deeply we feel about the “right” to vote, we do not seem to spend a lot of time talking or thinking about our election laws. No one is going to choose between President Barack Obama and former Gov. Mitt Romney because of those candidates’ views on, say, the number of polling locations a town should have. However, such inattention is dangerous.
Mainers should have a robust debate about our election laws and, ultimately, demand that they conform to a set of enduring principles. If we don’t, legislators may be tempted to pass election laws that benefit their own re-election at the expense of broader notions of fairness and access.
That may sound like a charge of corruption, but, the fact is, democracy works because legislators have an incentive to pursue the policies that will get them re-elected. This works well most of the time because the policies that will get them re-elected tend to be the policies that people want.
But election laws are not like education or tax rates. Voting and campaign finance laws form our political infrastructure and, as such, they should not be subject to the short-term goals of the party in power. To their credit, Maine voters have been more vigilant than most in articulating, and enforcing, the deeper values they believe Maine’s election laws
Most recently, when the Maine Legislature abolished our long tradition of same-day registration, Mainers vetoed the measure by referendum. Those legislators who voted to ban same-day registration argued that it was a gateway to fraud. But Maine voters ultimately rejected that argument 60 percent to 40 percent, expressing their collective view that the convenience and fairness of same-day registration were more valuable than the competing goal of further reducing the risk of fraud.
Maine voters also have been consistent in expressing their desire for a campaign finance system that keeps special interests out of politics. In 1996, Mainers voted 56 percent to 44 percent in favor of a trailblazing system of public campaign financing. The system has worked so well that, in 2010, more than 80 percent of Maine office seekers used Clean Election funds.
Unfortunately, after a court struck down a provision of our Clean Election law in 2011, the Legislature failed to take steps to keep the program whole and, in fact, made changes that weakened it. The result is that, if the Legislature’s changes stand, the Clean Election program will be underfunded in the future, such that fewer candidates will use Clean Election funds and more candidates will rely on special interest money.
However, the Legislature’s decision seems no more popular than was its repeal of same-day registration. In polling conducted this past May, 88 percent of Maine voters said the Clean Election Act is important and 65 percent said it is very important. Similarly, a huge majority, 75 percent, said every gubernatorial candidate should use Clean Election funds in every circumstance or at least have the option to use it.
While polls can differ, these are resounding numbers that reflect Mainers’ deeply held view that ideas, not money, should determine the outcome of elections. When November comes around, Mainers should go to the ballot box and enforce this simple but important principle by supporting candidates who believe in it.
Nolan L. Reichl is a lawyer living in Cape Elizabeth. A graduate of Stanford Law School, Reichl was an aide to Pennsylvania Gov. Edward G. Rendell before embarking on his legal career.