Lawmakers on Maine’s Veterans and Legal Affairs Committee today will consider a bill that would amend the Maine Constitution to prevent the legislature from revising a ballot initiative after its passage unless the proposed change “clarifies or advances the original intent of the measure.” The bill would require legislative fixes to be sent to voters for a statewide vote if the change is made within the first year of the law’s enactment. Finally, the bill allows the legislature to develop “a process for the review of a measure requested or proposed before petition forms are furnished or approved by the Secretary of State.”
LD 1565, sponsored by Sen. Justin Chenette, would create more problems than it would solve and is totally impractical when you consider the flaws that already exist within Maine’s ballot initiative process. While liberal and progressive interests in Maine may be upset about how frequently voter-approved measures have been adjusted by the legislature in recent years, the changes reflect the deficiencies of the current system (as well as the consequences of circumventing representative governance).
It is truly not the Legislature’s fault that ballot initiatives must be changed (or even abolished) after they have been approved by voters. Many of the initiatives voters are asked to consider have incomplete or unclear language, and others cannot clear basic legal hurdles.
We certainly know this to be true as it relates to ranked-choice voting. The Maine Supreme Court in an advisory opinion deemed a portion of the law unconstitutional due to the plurality requirement that triggers a winner in state-level general elections. Despite the unconstitutional language of Question 5 in 2016, Mainers were still allowed to vote on the measure and 52 percent of voters approved it.
And herein lies the most notable flaw of LD 1565: There is no section of the state constitution or existing law that bars an unconstitutional initiative from appearing on the ballot. How do lawmakers reconcile the language of a ballot initiative with Sen. Chenette’s proposal when voters approve a ballot initiative that is unconstitutional?
If a law is being challenged and a court determines the law (or a portion of the law) to be unconstitutional, how can it be altered if the revisions do not clarify or advance the original intent of the initiative? Better yet, how will we determine whether a proposed change clarifies or advances the original intent of the law? Will we require petitioning groups to pinky promise that legislative revisions to one of their ballot initiatives in fact clarifies or advances the original intent of the measure before we allow the legislature to proceed?
Similarly, is it really prudent to require another statewide vote when lawmakers elect to delay a ballot initiative due to logistical concerns with its implementation, as they did with ranked-choice voting and legalized recreational marijuana? The state just finished developing rules for Maine’s recreational marijuana market on Monday, more than two years after the law was originally approved. The ranked-choice voting initiative needed to be amended in 16 areas to conform to existing law. Will we ask voters 16 times if the law should be modified? And when issues of constitutionality arise, how will we parse out what is clarifying the law versus what is distorting the original intent of the measure?
Proponents will likely claim these concerns can be overcome because LD 1565 includes language that allows the legislature to develop a process for the review of an initiative before petition forms are furnished or approved by the Secretary of State. However, we do not know what this process will look like. The Legislature could simply codify the process as it currently stands; there is no guarantee of a public hearing or that the petitioners will agree to change the language of their initiative if legal or implementation concerns arise. Currently, petitions are reviewed the Secretary of State and can only be denied if the application is filled out incorrectly or the legislation does not conform to the state’s bill drafting conventions.
Given the chaos that has already been caused due to incomplete or unclear language in the ballot initiatives approved by voters, LD 1565 is a step in the wrong direction. Lawmakers should support bills that actually reform the process to reflect the ambitions of Maine people. All LD 1565 would do is protect the legal language drafted by lawyers of the special interest groups that bring these issues to ballot – language that the overwhelming majority of voters will never read before casting their vote.