September 25, 2018
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Why Maine voters won’t have last word on referendums they passed

BDN File | BDN
BDN File | BDN
Maine voters passed four citizen-initiated referendums on Nov. 8, 2016, ranging from a minimum wage increase to a ranked-choice voting system. However, history shows that the state's legislative, executive and judicial branches could drastically affect the way new laws triggered by the referendums will function.
By Christopher Cousins, BDN Staff
Updated:

AUGUSTA, Maine — Four referendums passed by Maine voters last month will go into effect in January, but the political intrigue associated with them has just begun.

Once election results are final, the bills become law as they existed when they passed at the ballot box, but after that, lawmakers or executive branch agencies can propose any changes they wish.

Two of the referendums passed last month — the minimum wage increase and ranked-choice voting — will become law on Jan. 7, 2017, following proclamations of the election results by Gov. Paul LePage on Thursday. Two others — marijuana legalization and the 3 percent surtax for education — were delayed by recount requests but likely will follow suit.

Perceived flaws in some of the legislation will generate proposals in the 128th Legislature that could amend the bills. While swearing in the new Legislature on Wednesday, LePage urged them to slow the incremental increase of the minimum wage and delay implementation of the education surtax, warning that both initiatives will harm Maine’s economy.

LePage will keep pushing for changes, likely challenging parts of the measures on constitutional grounds or, in the case of marijuana legalization, citing federal laws that still prohibit marijuana use. Proponents of the changes, who collected more than 60,000 signatures to place them on the ballots, will argue that any changes will defy the will of the voters.

A new Legislature split almost evenly along party lines will be left to determine the degree to which the way the referendums are implemented will be changed. In at least one case, ranked-choice voting, the courts might play a role as well.

History

In the more than century-long history of citizen initiatives in Maine, the Legislature has not shied away from making changes to citizen-initiated bills, amending some of them more than a dozen times or eventually repealing them.

Since 1990, a total of 22 citizen initiatives have passed at the ballot box and of those, 14 were amended by the Legislature, according to records kept by the Maine Legislative Law Library.

There are multiple examples of the Legislature or in some cases the courts changing citizen initiatives. They range from congressional term limit legislation enacted in 1994, which was later deemed unconstitutional, to Maine’s medical marijuana laws put in place by the citizens in 1999 and 2009, which have been amended in the Legislature numerous times.

In 1982, for example, a citizen initiative eliminated annual indexing of the income tax to the consumer price index, but Democratic Gov. Joe Brennan and the Legislature later reversed that legislation.

Perhaps the most well-known recent example of a citizen initiative that has been changed or ignored by lawmakers is the 2004 referendum that calls on state government to fund at least 55 percent of the cost of public education. The state has never met that level of funding and since 2004, the Legislature has made several adjustments to the essential programs and services school funding model, which was meant to provide a framework for how much public schools should cost — and by extension how much the state should pay.

Politics

The incoming leaders of both chambers of the Legislature — Democratic House Speaker Sara Gideon of Freeport and Republican Senate President Mike Thibodeau of Winterport — acknowledged that changes are warranted but said the Legislature walks a tightrope when it comes to changing citizen-made laws. How far afield lawmakers go could be as hotly debated as the policy changes themselves. Differences of opinion are already emerging.

“If you look at the ballot initiatives, I would suggest that there is a tremendous amount of work to be done there,” Thibodeau said Wednesday. “The reality is that some of these bills passed by the smallest of margins, which in my opinion gives us a little more leeway to make adjustments. Things that passed by wider margins, you start to feel less comfortable with making any adjustments.”

On the last day of this year’s legislative session, Thibodeau floated an alternative to the minimum-wage increase proposal that went to voters as Question 4. His impassioned argument for a compromise plan failed to sway Democrats. He has indicated that he will again try to alter the minimum-wage plan, especially as it relates to tipped workers.

Gideon is less open to major changes.

“I don’t buy that people didn’t understand what they were voting on,” she said. “I have more faith in people and voters than that, and I don’t think it is either fair or right to make the the choice to invalidate the choices voters made at the ballot box.”

The referendums

Voters approved four new laws:

— Question 1 legalized recreational marijuana but only by about 4,000 votes. It was the closest tally of any of the referendums and is the subject of a ballot recount that began Monday.

Perceived problems: Attorney General Janet Mills said in October that the legislation mistakenly could make it legal for minors to possess marijuana. In addition, opponents have raised a range of concerns about how to regulate sale and cultivation and some, including LePage, have suggested that the 10 percent tax on pot in the legislation is far too low. LePage said last week that he estimates the cost of creating an infrastructure within the Department of Agriculture, Conservation and Forestry to oversee retail marijuana sales to be $3 million to $5 million but that he has no plans to include that funding in his two-year budget proposal.

— Question 2 created a 3 percent surtax on income above $200,000 with the proceeds to flow into a dedicated account to benefit classroom instruction in Maine’s public schools. That initiative passed with about 50.6 percent support.

Perceived problems: Opponents of this measure fear that it will harm Maine’s economy by driving high earners, including doctors and entrepreneurs, out of Maine. In response, LePage is expected to propose lowering Maine’s income taxes to soften the blow. He likely won’t release details until his state budget proposal in January, but it is conceivable that he will target the tax cuts to counteract the effect of Question 2 on taxpayers. That wouldn’t stop new revenue from flowing to public schools but would have a double-whammy effect on state revenues to the General Fund.

— Question 4 authorized a phased increase in the minimum wage to $12 an hour by 2020 and tied future increases to the cost of living. About 55.4 percent of voters supported the measure, which was the widest victory for any of the citizen-initiated referendums.

Perceived problems: LePage has said he will propose various changes, including slowing the wage increases, canceling the future cost-of-living increases and restoring a lower minimum wage for workers who earn tips. He argues that a higher minimum wage will drive up costs for Maine’s older residents, many of whom will see much smaller cost-of-living increases from Social Security or pensions.

— Question 5 implemented ranked-choice voting for state and federal offices with about 52 percent support.

Perceived problems: Mills and Secretary of State Matthew Dunlap have identified constitutional problems, namely that the state’s constitution says ballots must be counted at the municipal level and that elections are won by a plurality in Maine, not a majority. A change to the Maine Constitution would require a two-thirds vote of the Legislature followed by a successful statewide referendum. Otherwise, this issue could end up in court.

Going into law

Following the secretary of state’s certification of the election results, the governor has 10 days to proclaim the election results valid. After that, the laws take effect in 30 days. This year, Questions 4 and 5 have gone through that process and will become law on Jan. 7, 2017. Questions 1 and 2 were delayed by recount requests.

The Maine Constitution that the governor wields no veto power over referendums. He is using the full weight of his political capital, however, to pressure lawmakers into enacting amendments. For example, he favors a higher tax on marijuana than the 10 percent that passed at the ballot box.

“I don’t know how you tax something you grow in your backyard, but I’m going to recommend that [the Legislature] increase the tax and that they tax medical marijuana,” LePage said last week during a radio interview on WVOM.

Lawmakers have until the end of December to submit bill proposals, and because of the drafting process most of those bills won’t be revealed to the public for a week or two after that. It’s a sure bet that there will be changes proposed to this year’s citizen-initiated referendums and more debate about how far elected leaders should push against the will of the people.

 


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