August 19, 2019
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Voters should have clear answers about referendum questions and constitutionality

Troy R. Bennett | BDN
Troy R. Bennett | BDN
Voters fill out ballots in the gym at Gorham Middle School on Nov. 6, 2018.

Call us old-fashioned, but we feel strongly that when voters weigh in on a referendum question, they should be confident that the proposal lines up with the Maine Constitution and existing law.

That’s an almost laughable assertion to make — as if writing a referendum question that can pass constitutional and legal muster at the state level is somehow controversial. But as we’ve seen with at least one recent ballot initiative, the situation is no joke.

In 2016, Maine voters were asked what seemed like a fairly straightforward question: “Do you want to allow voters to rank their choices of candidates in elections for U.S. Senate, Congress, Governor, state Senate and state representative, and to have ballots counted at the state level in multiple rounds in which last-place candidates are eliminated until a candidate wins by majority?”

There was, however, a significant problem with that ultimately successful ranked-choice voting referendum: It conflicted with the Maine Constitution. The Maine Supreme Judicial Court, the Maine attorney general and Maine secretary of state all essentially reached that same conclusion as part of a subsequent court review.

The state’s top court provided a unanimous, nonbinding advisory opinion in 2017 that the ranked-choice voting law is “in direct contradiction to the plurality requirements of the Maine Constitution and therefore provide our opinion that it violates the Constitution.”

Maine’s Constitution specifically sets a plurality as the required threshold in elections for state offices such as governor and seats in the Legislature. That’s why ranked-choice voting was subsequently only implemented in a patchwork fashion for Maine’s federal office elections and gubernatorial primaries.

(To be clear, a federal judge later rejected an argument that ranked-choice voting violates the U.S. Constitution, though that did not eliminate the separate constitutional issues at the state level.)

This consensus among several state entities that using ranked-choice voting in certain elections would violate the Maine Constitution, particularly the fact that then-Attorney General Janet Mills and Secretary of State Matt Dunlap raised concerns about the referendum well before the 2016 election, begs an obvious question: How did this not prevent the question from finding its way onto the ballot in the first place or at least not merit some sort of adjustment before it went to voters?

As Dunlap pointed out in an interview with the BDN, the courts rightly have the sole power to determine constitutionality. It’s a principal that dates back to Marbury v. Madison and the early years of American democracy. However, we’re still left wondering if there is some additional mechanism the Legislature can institute to forgo clear constitutional conflicts before they find their way onto the ballot, while still respecting the separation of powers.

Enter a resolution proposed this session in the Maine Legislature that could potentially provide such a pathway. LD 1669, introduced by Rep. Beth O’Connor of Berwick, would change the Maine Constitution to require the secretary of state, attorney general, governor and the Legislature to review proposed citizen’s initiatives for compatibility with the Maine Constitution and state statute. If any of those entities finds the proposal to be incompatible, the secretary of state’s office would not be able to approve the petition forms for that initiative.

The underlying principle here, that there needs to be a more in-depth review of ballot initiatives to avoid obvious constitutional conflicts, is a good one. But the approach appears problematic. The secretary of state and attorney general — Maine’s top election official and legal representative, respectively — could be appropriate stewards for this effort but only if can be done in more of an advisory capacity that doesn’t usurp power from the courts.

Turning to a governor or the Legislature for this review, meanwhile, seems ill-advised. This could inject additional divisiveness into an already polarized issue, and potentially provide an avenue for stopping referenda for political purposes rather than legitimate constitutional or statutory concerns.

The Veterans and Legal Affairs Committee, which will be tasked with reviewing O’Connor’s proposal, should consider limiting the bill’s review to the secretary of state and attorney general. The goal should be to ensure integrity in the citizen’s initiative process, not to hobble the process all together.

O’Connor’s bill is rooted in legitimate concern about the vetting process for referendum questions — a concern that we share. Her proposal may not be the precise answer, but it provides a starting point for a much needed conversation.

Maine voters have increasingly been tasked with deciding some of the biggest issues facing our state at the ballot box. It’s not too much to ask that they can go into the voting booth knowing those proposals, if passed, are likely to be constitutional and compatible with existing state law.



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