Little known constitutional provision offers some protection from Maine ballot questions

Title page of a copy of the Maine Constitution from 1902. Courtesy Maine State Archives.

AUGUSTA – Ask the average Mainer what a “competing measure” is when it comes to Maine’s election process, and you’ll probably get a shrug or a puzzled look. But tucked into the Maine Constitution’s language laying out the process for collecting petition signatures to place a question directly on the ballot is a provision that allows the Maine Legislature to challenge the language of any initiative that is poised to go directly to Maine voters.

The “competing measure” language can be found in the Maine Constitution Article IV, Part Third, Section 18, which says, regarding the process of the legislature approving the referendum and sending the citizen’s initiative to voters, “The measure thus proposed, unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both.

In section 19, just following that language in the Maine Constitution is this definition of “measure”:

“”measure” means an Act, bill, resolve or resolution proposed by the people, or 2 or more such, or part or parts of such, as the case may be;”

In just the past few years, the Maine Legislature has twice had citizen initiated bills before it that were of dubious constitutionality. Many conservatives have decried the lack of legal or parliamentary mechanisms to bring destructive or unconstitutional initiatives to a full stop.

These feelings have been exacerbated because the initial ranked-choice voting referendum was put out to voters despite warnings that it likely would be found unconstitutional in most of the elections the proposal directed ranked-choice elections to be implemented in.

After the RCV referendum passed, the Maine Supreme Court did find that all state general elections would violate the Maine Constitution under ranked-choice voting. The resulting attempts to “fix” RCV led to much controversy, expense, and the current hybrid Maine election process, which many say is overly confusing.

Then, earlier this year, the “universal home care” referendum was put out to voters despite top legal minds raising serious constitutional, economic and privacy concerns about the proposal.

Use of the Maine Constitution’s ‘competing measure’ provision would have allowed the Legislature to put forward a competing version of either of these initiatives, to strip away pieces of the proposals that were troublesome or that raised serious constitutional concerns. The legislature also has the option of crafting a substitute proposal rather than an amended version of the original proposal, and of course the ability to write a recommendation to voters as the legislative body of the state as part of the process of offering any competing measure.

At this point, the original, unaltered proposal would be sent to voters, along with the competing measure put forward by the legislature on the same ballot. Voters would be able to vote for one of the two measures, or simply vote no to either. If either or both of the two competing measures in this scenario were to receive more than 1/3 of the votes, the measure with the highest number of votes would go out in a runoff election within 60 days of the original election for a straight Yes or No vote.

If outside groups continue to push proposed laws through the Legislature and out to the ballot through the citizen’s initiative process, Maine lawmakers do have at least one option to offer more sound, constitutional policy without waiting to file suit against the proposals after they pass.

The competing measure process may be little known, but it does offer some protections to keep the Maine Legislature working and on the right side of the Constitution. At the same time, it would give voters a choice for what would likely be more carefully crafted proposals than what is currently being put forward by progressive groups trying to push the envelope of policy with little regard for the constitutionality or long-term impact of their proposals.

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