Maine may well face a pair of controversial referendums this year – a citizen initiative to block CMP’s energy corridor and an effort to repeal the expansion of ranked-choice voting to cover presidential elections. Both are facing legal challenges on their way to the ballot, however: Supporters of the energy corridor are arguing that opponents didn’t get enough valid signatures, while RCV supporters are claiming that the law is already in place and therefore can’t be the subject of a people’s veto.

Regardless of the merits of those cases, it’s pretty clear that the intent of each is simply to block the issue from appearing on the ballot in November. In both cases, opponents are seizing on a technical argument to, essentially, halt an election, and that’s not terribly democratic when they could simply make their case during the campaign. Fortunately, Maine courts have a history of resolving these sorts of disputes quickly and fairly when it comes to pending elections, so neither issue is likely to remain in legal limbo for long.

The bigger problem with the citizen initiative process in Maine is not ballot access or these types of legal disputes, but that there’s no standard process to review the constitutionality of proposals before they make it on to the ballot. This may seem par for the course, since normally courts don’t offer opinions on a law’s constitutionality until after it’s in effect, but that’s not necessarily the case in every state. In Maine, the Legislature can ask the Supreme Court for an advisory opinion on the constitutionality of a law. They notably did so several years ago to ask about ranked-choice voting, and the Maine Supreme Judicial Court declared that aspects of it were unconstitutional.

While it’s well and good to at least have the advisory opinion, there are a few loopholes in this system that prevent it from serving as a true constitutional review. Requesting the review requires a majority, so if the majority party supports a particular citizen initiative – or just doesn’t care whether it’s unconstitutional – they’d have the votes to block the request for a review. That’s why it was so surprising to see the Legislature make the request at all for ranked-choice voting: As with so many issues now, support for various referenda often breaks down along party lines.

To be clear, this decision was purely advisory: the state supreme court, on its own, couldn’t stop ranked-choice voting. Like the federal courts, in order to actually strike down a law as unconstitutional justices need to be responding to a case. Now, it will be up to a citizen to challenge the constitutionality of ranked-choice voting in the courts, and that requires both legal standing and fiscal means to do so. How long it might take for that process to play out, and what decision a future supreme court might make, are open questions.

fThe Maine supreme court’s advisory opinion that ranked-choice voting was unconstitutional also came far too late in the process, as the Legislature didn’t request it until after the law was passed, when they were trying to implement it. Instead of informing the public, the decision mainly informed the Legislature, whose efforts to delay the law ended up being overturned at the ballot box anyway. That’s why ranked-choice voting went into effect despite the court’s decision, although not for gubernatorial or legislative races, which the court found potentially problematic.

Rather than depending on the Legislature to ask the right question at the right time, Maine could put in place a mandatory review of all citizen initiatives for constitutionality before the election. Even if the opinion were purely advisory, it would have been good for voters to know that the state’s highest court thought the proposal was unconstitutional during the campaign.

This concern wasn’t unique to the ranked-choice voting issue, either. If the referendum to stop CMP’s corridor does end up making the ballot and passes, it could face significant legal challenges. If that’s a possibility, voters should be well aware of that ahead of time, so they don’t face a severe case of buyer’s remorse as the state ends up in a costly legal fight defending the law.

In other states, legal reviews of citizen initiatives are often used to stymie them on technical grounds, like the challenges faced by RCV and corridor opponents. Maine should certainly avoid going down that road. However, an advisory review by a trusted authority like the Maine supreme court could help create a better-informed electorate and spare the state from unnecessary, unconstitutional laws going forward.

Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins.
He can be contacted at: jwfossel@gmail.com
Twitter: @jimfossel