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.
By the time you get to Question 8 on the ballot this November, you might be tired. Eight is a lot of referendum questions to answer, after all. But Question 8 deserves your attention, and your support.
This question asks: “Do you favor amending the Constitution of Maine to remove a provision prohibiting a person under guardianship for reasons of mental illness from voting for governor, senators and representatives, which the United States District Court for the District of Maine found violates the United States Constitution and federal law?”
The question might seem complicated. The history certainly is. The practical impact of Question 8, however, is fairly simple.
A person under guardianship for reasons of mental illness can already (and rightly) vote in Maine today. They have been able to for more than two decades, since a federal judge ruled that the restriction disenfranchised these Mainers and violated both the U.S. Constitution and federal law. Since then, this outdated, imprecise and frankly discriminatory language has remained in the Maine Constitution but has not been enforced.
The question before voters now is whether this inactive, unconstitutional and potentially confusing language should be formally removed from the Maine Constitution. The answer from us is a resounding yes, and we hope it will be from voters across Maine.
“My hope is that the voters will reject the antiquated language of the past that is not even legally enforceable and finally align our constitution with our principles and the law today,” Maine Secretary of State Shenna Bellows recently told the Maine Monitor.
Maine adopted this misguided constitutional language in 1965. Then in 2001, a federal judge in Maine found that it violated both the Due Process and Equal Protection clauses in the Fourteenth Amendment of the U.S. Constitution, along with the Americans with Disabilities Act.
You might be wondering then, if this flawed language in the Maine Constitution has already been struck down in court, why Question 8 is needed at all. However, as managing attorney Mark Joyce and others from Disability Rights Maine explained to the Bangor Daily News editorial board last week, leaving the invalidated language in the document continues to be a recipe for confusion. Certain people under guardianship or those assisting them might see the language and incorrectly think it prohibits them from voting.
“Sometimes people ask me, well Mark, it’s illegal anyway, so why go through all this process of changing the Constitution — if the courts have already found it illegal, if people can still vote, what’s the big deal?” Joyce explained. “Well the big deal is that, because of the misinformation, there is still the chance for disenfranchisement for individuals who may read about this, or people who may be helping them, and them saying, ‘Oh well see, it’s in the Constitution, it’s in your source document, so you can’t [vote].’”
Joyce added that “there’s so much room for people to be disenfranchised” while that language remains in the Maine Constitution.
More than 20 years after that court ruling, it is well past time to remove the confusion and potential for disenfranchisement. That means taking the additional step of removing unconstitutional language. It now falls to Maine voters to make sure this overdue update is made, after it already secured the needed two-thirds support in both houses of the Maine Legislature.
We are fully convinced that Question 8 is the just and necessary action to close out a discriminatory chapter in the Maine Constitution. But Maine voters have not always agreed. Two previous referendum questions, before the 2001 court ruling, failed to remove this language. Perhaps these past voters, like some current Question 8 opponents or skeptics, have agreed that an update is needed but still think there should be a process recognizing that not all people may be capable of exercising their right to vote. So it is worth clarifying for everyone: There already is such a provision related to guardianship in Maine’s probate code, and it’s not going anywhere if Question 8 passes. Nor would Question 8 change the definitions or standards for guardianship.
Question 8 will not usher in some drastic, new reality. It will simply bring outdated state constitutional language in line with current practice and legal requirements, while giving people more clarity about their existing rights.
Though the background to Question 8 is complex, it should add up to a relatively easy decision for voters this fall. We recommend a yes vote on Question 8.