Stop unconstitutional initiatives from appearing on the ballot


Lawmakers are considering a flurry of ballot initiative reforms this session, from requiring signatures to be collected in both congressional districts to printing fiscal impact statements directly on the ballot, and everything in between. But one of the most impactful proposals put forward this session is LD 1669, sponsored by Rep. Beth O’Connor, which would amend the Maine Constitution to prevent unconstitutional initiatives from appearing on the statewide ballot.

Currently, the Office of the Secretary of State is the only entity with oversight of ballot initiatives. To achieve ballot status, the language of an initiative must conform to normal bill drafting conventions; this is essentially the only check on what can appear on the ballot in Maine. Under LD 1669, the offices of the Secretary of State, Governor, Attorney General and the Legislature would all have oversight of the ballot initiative process.

The passage of unconstitutional measures in Maine is not unprecedented – our state has been exposed to these types of measures in the past, most recently with ranked-choice voting.

After voters approved ranked-choice voting at the ballot box in 2016, the Maine Supreme Judicial Court released an advisory opinion stating that ranked-choice voting is not compatible with the Constitution of Maine in state-level general election races. The initiative conflicted with the constitutional requirement of receiving a plurality of the votes to be declared the winner in one of the aforementioned races. Ranked-choice voting determines a winner based on the majority of votes received after multiple rounds of tabulation.

In its advisory opinion, the Maine Supreme Judicial Court Court said, “In essence, the Act is inapplicable if there are only two candidates, and it is in direct conflict with the Constitution if there are more than two candidates.” Thus, the original initiative passed by voters needed to be altered by lawmakers after its passage to conform to the Maine Constitution.

This wasn’t easy. First, lawmakers elected to punt on ranked-choice voting, delaying the implementation of the law for a few years and ultimately repealing the law unless a constitutional amendment was passed to remove the plurality requirement from the state constitution. This resulted in the people’s veto effort in 2017 that gave us what may be the most confusing question ever to appear on our ballot.

Since the passage of ranked-choice voting in 2016, scores of bills have been submitted to make further changes to the law. In 2017, the Secretary of State’s office testified that Maine’s ranked-choice voting law needed to be changed in 16 areas to conform to existing law. This session, lawmakers have proposed constitutional amendments to strike the word “plurality” from the state constitution to expand the use of ranked-choice voting to state-level general election races. This, and many other proposals, to amend or expand the use of a voting system that we knew from the beginning could not pass constitutional muster.  

LD 1669 would not limit ballot access, but simply prevent groups from wasting their time and energy on collecting signatures for unconstitutional ballot measures. This legislation also promotes good governance; it would help prevent taxpayer dollars and state resources from being wasted on initiatives that should not be granted ballot access in the first place due to their incompatibility with the Maine Constitution.

As the saga of Maine’s ranked-choice voting law unfolded, precious taxpayer time and resources were wasted to bring the new voting system into compliance. If LD 1669 is to advance this session, the legislature would have less of an excuse to alter initiatives approved by voters, and less public time and money would be wasted in the Legislature fixing unconstitutional initiatives. In addition, passage of this measure would simply give voters the opportunity to decide whether they want unconstitutional questions to appear on the ballot.

As noted by the Editorial Board at the Bangor Daily News, the bill does face some logistical questions that need to be ironed out in committee. Inserting the governor and legislature into the process opens the door for partisanship in the process, which wouldn’t be helpful for anyone. It may be best to leave oversight with the Secretary of State and the Attorney General, who could issue a nonbinding opinion on the language of the initiative to avoid subverting the powers of the judicial branch. Nonetheless, ensuring an initiative is constitutional before it appears on our ballot is a meaningful reform that would improve Maine’s ballot initiative process.

In sum, LD 1669 accomplishes three goals: It would stop ballot initiatives that are incompatible with the Constitution of Maine from gaining ballot access, eliminate common excuses to alter initiatives that have been passed by voters and prevent groups from wasting their time collecting signatures for initiatives that will inevitably be altered due to their conflicts with the Maine Constitution.


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