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Maine Judicial Branch Speaks Out Against Bill To Have Courts Review Citizen Initiatives

In a rare move, a representative of Maine’s judicial branch appeared before a committee in Augusta today to speak against a proposal before state lawmakers.

The bill would grant the Maine Supreme Court the power to block citizen-initiated ballot questions before they even get to the voters. The judiciary believes that the bill, though designed to stop potentially unconstitutional initiatives from reaching the ballot, will result in a serious breach of the separation of powers.

The proposal is one of at least a dozen that attempt to overhaul the citizen initiative process in Maine. Some lawmakers believe the process has been exploited by interest groups or wealthy individuals who can singlehandedly bankroll campaigns that benefit their personal interests.

And on Tuesday, the Maine House and Senate took a step toward doing something about it. Both chambers passed a joint order that allows the Veterans and Legal Affairs Committee to craft legislation that could change the initiative process through a constitutional amendment.

But judicial branch spokeswoman Mary Ann Lynch cautioned against advancing one bill in particular, which has been endorsed by several legislative leaders.

“So this is one of the really rare occasions when we’re taking a substantive position and saying, ‘This, in our view, is really bad for the separation of powers,’” she says.

The bill, sponsored by Republican Sen. Eric Brakey, would effectively allow the Legislature, governor and attorney general to ask the Supreme Court to weigh in on the constitutionality of a proposed referendum before it ever reaches the ballot.

Lynch says that’s a really bad idea.

“You are allowing — think about this — a majority of the court, four members, not seven, to decide beforehand what could go on the ballot,” she says.

Lynch went on to say the proposal directly contradicts concerns she hears from legislators about the courts acting as lawmaking bodies.

“You would be allowing the courts to make law by default. No, that can’t go on the ballot, that one can’t go on the ballot,” she says.

The proposal comes as the Legislature grapples with how to manage a recent flood of citizen initiatives, including a record five last year. Most of last year’s ballot initiatives were pushed by progressive groups, leading Republicans and Gov. Paul LePage to call for changes to the qualifying process.

Senate Republican leader Garrett Mason is a co-sponsor of the bill that would allow the court to review an initiative’s constitutionality. He appeared to back away from the idea after Lynch’s testimony, but he expressed frustration with the current qualifying process.

“This process has been perverted — it’s been co-opted by outside interests that have been electioneering our elections,” he says.

Democrats have also expressed concerns. And both parties are worried about a referendum on November’s ballot that would allow a controversial casino mogul to build a gambling facility in York County.

Wednesday’s hearing took place as the Maine Supreme Court considers whether to issue an advisory opinion about the constitutionality of a ranked-choice voting initiative approved by voters this past fall.

During oral arguments held last week, several justices appeared concerned about the ramifications of opining on a law already endorsed by voters.

But the judiciary was crystal clear Wednesday that it’s not interested in determining which ballot questions voters should be allowed to consider.