Last month, Question No. 1 of the referendum questions asked Maine voters to answer this question: Do you want to set a $5,000 limit for giving to political action committees that spend money independently to support or defeat candidates for office? The measure passed resoundingly, with almost 75% of voters statewide saying “Yes.” Not surprisingly, an interest group filed suit.

It is questionable how this voter-approved provision could comport with the free speech clause of the First Amendment as interpreted by the Supreme Court in Citizens United v. Federal Election Commission and other federal appeals court cases decided around the same time.

Citizens United held that limits on independent expenditures (the subject of the referendum) violate the free speech rights of those who engage in express campaign advocacy independent of the candidate’s awareness of the expenditure. It will be argued that, likewise, those who contribute to these same groups fall within this coverage; their free speech rights are also protected.

Many Maine voters likely disagree with the decision in Citizens United, but it is still law and can only be overturned by the U.S. Supreme Court itself or by an amendment to the U.S. Constitution. Efforts to reduce corruption in state elections should be focused there first and then built upon the space of popular referenda.

When I read about the lawsuit on the 2024 question, it reminded me of two popular initiatives put to Maine voters last year.

One asked if voters wanted to maintain the requirement that individuals who circulate popular initiative questions be citizens of the state. It was framed in the negative, though, asking voters if they wanted to “remove” this provision from the state’s highest source of law. In the end, 68.7% voted “No”; two-thirds of the state wanted the rule that those who gather signatures for popular initiatives be Mainers. The United States Court of Appeals for the First Circuit in Boston had struck down that state residency requirement in July of 2022 as a violation of free speech.

The second initiative asked Maine voters if they should remove prohibitions in the state constitution that prevented certain individuals with mental disabilities from voting for governor and members of Congress. In response to that, 53.4% of voters said “No”; they wanted to keep the restriction. The federal district court in Portland struck down that as unconstitutional earlier, in August of 2001.

What do all three of these questions have in common? They all touch on federal courts’ established interpretations of the U.S. Constitution.  To be fair, the two questions from 2023 expressly acknowledge the courts’ role, but they still sought to put it to voters irrespective of those judicial decisions.

The 2024 question just seems to ignore constitutional law, but it also seeks permission to condone it by way of popular democracy. Why try to enact state laws that either violate U.S. Supreme Court constitutional precedent (the 2024 question) or ask voters to directly contradict what federal courts have said the Constitution dictates (both 2023 questions)?

Whether Mainers like it or not, courts have to determine that all laws (even those voted on by the people) align with the U.S. Constitution.  Federal courts, particularly, make those calls on balls and strikes for the entire country. No one state, whether through simple legislation or through the ballot box, can undo this bedrock principle of separation of powers.

When a state openly attempts to contradict the courts through popular referenda, it could also cause a problem for federalism. On the surface, these look successful, these look like “giving the people what they want.” But in time, these questions will likely have to be “re-answered” by the courts, upending the will of voters. Judges won’t think twice about upholding bedrock constitutional principles just because the offending state measure was done by voter initiative rather than by simple legislation.

This will result in frustration and disappointment. Frustration will come in the feigned belief that federal courts are taking away the rights of state citizens, when in reality (and to be fair, overtly disclosed in the 2023 ballot questions), ballot initiatives may not have been appropriate vehicles in the first place.

Disappointment will come because state citizens will think courts are not supporting their wishes. Why should people listen to courts that don’t support the people? Once that orchestra plays loudly enough, other critical components of our government (like separation of powers and federalism) could get drowned out.

Asking Maine voters to approve language for a ballot initiative, while important to democratic function, does not override significant principles of separation of powers and federalism. To ask Mainers to vote in such a way flouts these bedrock principles of our federal republic.

The proper way to handle these matters is fully vetting them through the judicial process all the way up to the U.S. Supreme Court, as should have been the case for the 2023 questions. Or, similarly, seeing if the Court will revisit its precedent, for the 2024 question; that may be what Maine officials are strategizing with the 2024 question but for reasons stated above, the language put voters is a quixotic starting point.

These popular initiative pathways are trying to take a shortcut through the messy thicket of how our institutions of government interact with one another. To do it right would either require work from state officials that perhaps there aren’t resources for (appealing lower courts’ decisions – for the 2023 questions) or having to join the national conversation of an amendment to the U.S. Constitution (the 2024 question).

Taking the long way around, the more hard-fought road through the landscape of how our government functions will sustain Maine’s (and any other state’s) role as part of our Union. Trying to run up the middle too quickly will not work given our separate branches’ respective roles. In the long run, that’s not good for democracy.