Voters have had the first word on some of Maine’s biggest political causes over the past several years, but judges have sometimes had the last.
One 2017 opinion from the state’s high court led the Legislature to whittle down races subject to Maine’s pioneering ranked-choice voting system. Last month, a court reinvigorated the hydropower corridor that voters rejected in 2021.
At the heart of both rulings were constitutional questions that were explored during a public debate about those ideas, something that is now a trend in the state referendum system. Three of the four questions slated for the November ballot have questions about constitutionality.
The context: The referendums that could be challenged this time include a “right-to-repair” law pushed by auto repair chains that is on hold in Massachusetts due to a lawsuit. The two others came out of criticism of the electric utilities in Maine, with one targeting a takeover of the two largest ones and the other barring foreign government-owned entities from spending in referendums here.
The right-to-repair law, which is a response to rapidly changing diagnostic technology in vehicles that transmits information to manufacturers, has the clearest concerns, with the automotive industry and their backers saying the Massachusetts law runs afoul of the U.S. Constitution and copyright law.
Opponents of the two utility-related referendums have also cited constitutional concerns going back to 2021, when similar proposals were working their respective ways through the Maine Legislature. In recent testimony, the parent company of Central Maine Power Co. laid out several reasons why it believes the referendum is unconstitutional. The Maine State Chamber of Commerce noted free-speech issues with the other question targeting foreign entities.
Little to do: These are not issues that politicians can easily solve ahead of a referendum. When a Republican lawmaker tried in 2017 to put a process in place to have courts look at referendums before they hit the ballot, the judicial system opposed it by saying it involved the branch too much in legislative politics, a place where judges are deeply uncomfortable.
What’s next: None of these concerns are gospel for now. It is possible that some or all of the laws are eventually upheld by courts. Lawmakers could also fix some of these problems later. These ideas have had enough momentum to get this far in the political process, but voters may be surprised at the limits of their power.
