The BDN Editorial Board operates independently from the newsroom, and does not set policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Maine Secretary of State Shenna Bellows has issued a decision which, if upheld in court, would block former President Donald Trump from appearing on the state Republican primary ballot. There are many important questions for Maine courts and the U.S. Supreme Court to answer related to Trump’s eligibility and the applicability of the 14th Amendment, which bars people who have “engaged in insurrection” from elected office. Ultimately, a determination from the highest court in the land will be critical to answering these questions in a uniform way.
While those questions are adjudicated further, however, we have another tangential but nevertheless significant question that follows the 33-page decision from Bellows: If the Maine secretary of state can keep a candidate off the ballot due to constitutional considerations, shouldn’t the same be true for a referendum question?
We, and Maine voters, have long been frustrated by the practice that allows referendum questions to be passed at the ballot box only to be found wholly or partially unconstitutional after the fact — despite clear constitutional questions being raised long before election day. While voters understandably have been frustrated to have their collective decisions overturned, we’ve also been frustrated to see clearly unconstitutional referendum questions make it to the ballot in the first place.
Popular ideas can still be unconstitutional. Allowing plainly unconstitutional questions to go before voters, without some sort of formal constitutional review ahead of time, is a recipe not only for frustration and legal action, but diminished voter trust. A way of easing this problem, while still safeguarding the referendum process, would be to have a constitutional determination ahead of time — not totally unlike the process we’re seeing play out now with Bellows, the courts and Trump’s candidacy.
Maine law contains a specific process for Maine voters to challenge the eligibility of a candidate’s petition ahead of time, for the secretary of state to review those challenges, and for the courts to quickly review any appeals. We think a similar process would make sense for referendum questions as well. While the courts have on occasion stepped in to rule on the constitutionality of a referendum before an election, this has not been a uniform approach.
The Maine secretary of state can currently reject referendum petitions, but that review is to make sure the law being proposed through that referendum is in a proper form. This existing review does not specifically include a determination of constitutionality. As we wrote a year ago, “Adding a provision to state law that allows the Maine secretary of state, after consultation with the state attorney general, to reject initiative petitions that don’t comply with the U.S. or Maine constitutions simply makes sense.”
As with the ballot challenges for candidates, this would need to be a layered process that includes expedited judicial review. The process should not vest sole decision making in one or two officials, especially constitutional officers not directly elected by voters. As such, Bellows’ move to stay her decision pending court review should be the default, both for candidate and referendum reviews.
We don’t fully agree with Bellows’ ultimate conclusion in her decision as it pertains to the 14th Amendment and candidate Trump, but we respect the process that led to it. And we believe a similar review of the constitutionality of ballot questions, with judicial involvement — ahead of an election, not after — would be an improvement to Maine’s referendum process as well.