Maine voters enacted four large, policy-setting laws by referendum last November, and the current legislative session has been dominated by these measures, including vows to respect the voters’ decision, to overturn them — several pending bills would do that — or to “fix” them, something very much in the eye of the beholder.

One referendum clearly needing fixing was the one legalizing marijuana. Already, lawmakers have passed emergency legislation to ensure the initiative didn’t make it legal for kids to smoke marijuana. A select committee has begun meeting to sort out how marijuana will be legally sold and marketed to adults, starting next year.

Then there are two big financial questions — raising the minimum wage to $12 an hour by 2020, and raising the income tax by 3 percent to fund public schools at the long-promised rate of 55 percent. The minimum wage has mostly been accepted — the first raise, to $9, took effect in January — except possibly the “tipped wage” provisions.

The income tax boost has drawn a dramatic, and rather absurd, attempt by Gov. Paul LePage negate the increase, and somehow lower the top rate below the current 7.15 percent. He would make savage cuts to a host of programs, and raise a panoply of other taxes — not exactly a rational reaction to the voters’ instruction to tax the rich.

Then there’s ranked-choice voting. Last March, Attorney General Janet Mills said the question “raises significant constitutional concerns.” Those concerns include a possible conflict with the state Constitution’s requirement for “plurality” winners, and the need to devise a new system for recounting ballots, since elections are now carried out at the municipal level.

These concerns were dismissed by proponents, but were substantial enough for the Senate, by a 24-10 vote, to petition the state Supreme Court for a ruling. The justices will meet April 13 for oral arguments — likely producing a decision in short order, since the Legislature adjourns in June.


The court will first determine whether a “solemn occasion,” as the Constitution terms it, exists — whether there’s a question the Legislature has asked that requires their answer.

A lot is riding on this case. No state currently uses a ranked-choice system, now employed only in a handful of cities for local elections. This question applies not only to elections for governor, but to all 186 legislative races.

Supporters paint a sunny, good-government results that will supposedly spring from voters being able to hedge their bets. This is simply a theory; how it would actually work is anyone’s guess, but there may be unintended consequences.

How the court will rule is the subject of intense speculation, and is reminiscent of the last time voters themselves undertook a major change in state elections — in 1993, when legislative term limits were voted in, primarily as a means of turning out House Speaker John Martin.

There was a constitutional question then, too, and an attorney general’s opinion saying term limits were probably unconstitutional, since they would alter the constitutionally specified conditions of service. But the court brushed aside these objections, with five justices seeing no constitutional problems, and two dissenters saying the question wasn’t ripe; the appeal from the House occurred before, not after, the referendum was decided.

Interestingly enough, four years later the Massachusetts Supreme Court unanimously struck down legislative terms limits in that state, even though the constitutional language — which Maine had inherited from Massachusetts — was substantially identical.


Since then, Maine has seen numerous effects from term limits, mostly negative, including an inability to develop the strong legislative leadership needed to counter Maine’s unusually powerful governor’s office.

How the latest well-intentioned voting changes will fare will initially be determined by the court. By some readings, it could disallow ranked-choice voting in November elections — covered in the Constitution — but uphold it for primary elections, which are not. It could reject the whole system, or it could find no constitutional problems.

What one hopes will not happen is for the court to decline to answer. We might then have to set up a brand-new vote-counting system for the 2018 elections, which could then produce a governor chosen by ranked choice, and another contender with a plurality of votes.

The court would then presumably have to sort out the winner between November and January, almost a reprise of Bush v. Gore. It’s hard to imagine an outcome less likely to help heal the political divisions a new governor will have to bridge.

The referendum process, on the whole, has worked well in Maine. This is a reminder, though, that we need to be careful how we use it.

Douglas Rooks has covered the State House for 32 years. His first book, “Statesman: George Mitchell and the Art of the Possible,” is now available. Comment is welcomed at: [email protected]

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