Questions about November's ballot measures? The Political Pulse crew has some answers

Maine voters will decide this November whether to reverse a nearly 150-year-old decision amid renewed discussion over tribal sovereignty and historic injustices against the Wabanaki Nations.

On the surface, Question 6 on the fall ballot simply asks whether voters support requiring “that all of the provisions of the (Maine) Constitution be included in the official printed copies” distributed by the state. That’s because, since 1876, printed copies of Maine’s Constitution have omitted three sections of the original document, including one pertaining to Maine’s treaty obligations toward Indian tribes.

Sparse historical evidence has led to a robust debate about whether the omission was merely a clerical effort to “clean up” Maine’s founding document or, as supporters suggest, an attempt to obfuscate the state’s responsibilities toward Wabanaki communities.

“We have made some really great progress, so why not let these original treaty obligations be seen and printed?” Maulian Bryant, ambassador to the Penobscot Nation, told lawmakers during a public hearing on the proposed constitutional amendment. “The fact that they were hidden sends a message to the tribal nations that the agreements and the relationships between the state and our governments and our people are not important and are not worthwhile.”

This is one of four proposed constitutional amendments on the ballot this November along with four citizen’s initiatives. We’ll look at each of the amendments below, starting with Question 6, and will tackle the ballot questions separately in later editions of the Pulse.

Question 6: History and transparency

Question 6 asks Maine voters: "Do you favor amending the Constitution of Maine to require that all of the provisions of the Constitution be included in the official printed copies of the Constitution prepared by the Secretary of State?"

Before Maine achieved statehood in 1820, leaders of Massachusetts and the would-be state had to agree on “Articles of Separation” that were incorporated into Maine’s brand-new constitution.

Authors of a 2021 report for the Maine Indian Tribal-State Commission wrote that the articles “read more like a divorce judgment than a constitutional document” because they dealt largely with “practical details” such as division of property.

But amid all of this separation housekeeping was a section stating that Maine shall “assume and perform all the duties and obligations of this Commonwealth [Massachusetts], towards the Indians within said ‘District of Maine,’ whether the same arise from treaties, or otherwise.”

In other words: any tribal treaties negotiated with Massachusetts would be transferred to Maine, and the fledgling state must honor those treaties plus any other “obligations” to the tribes.

That language remains part of Maine’s Constitution — but you’d never know it by reading the document.

In 1875, the Maine Legislature passed, and voters subsequently approved, a constitutional amendment removing three sections from future printings of the document. Two of those sections were clearly obsolete. But the amendment makes clear that Article X, Section 5, which includes the state’s obligations to the tribes, “shall remain in full force ... with the same effect as if contained in said printed copies.”

Robert F. Bukaty

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AP file

The reasoning behind this shift is murky 148 years later.

Maine state archivist Kate McBrien told lawmakers that the minutes of the meetings of the constitutional amendment commission didn’t record any debate or actual discussion on that particular alteration.

The authors of that 2021 report to the Maine Indian State-Tribal Commission, attorneys Judson Esty-Kendall and Rachel Hampson, theorized that the omission “was reflective of the official view largely held since statehood” that the state’s only obligations to tribal communities were those of “guardian to ward.” After all, Maine courts had repeatedly ruled that in land disputes, the claims of government and white settlers trumped any treaties with tribes.

“It is understandable to suspect that Maine’s motive in removing the Section 5 language was to hide its treaty obligations,” Esty-Kendall and Hampson wrote. “However, to put it bluntly, the Maine government did not believe that it had any obligations to hide.”

Conspiracy afoot

But in a fall 2021 research paper in “Maine History,” the journal of the Maine Historical Society, historian Catherine Burns argued that the omission was an attempt to hide Maine’s obligations.

Burns noted that Maine’s Supreme Judicial Court was poised to side with a white resident, Joseph Granger, in a decadeslong land claims fight with the Passamaquoddy Tribe over 15 islands in the St. Croix River.

Maine state government was still knee-deep in Civil War debt. And now the state faced the possibility of having to both pay Granger’s legal fees and to compensate the Passmaquoddy Tribe for the lost land under Article X, Section 5.

According to Burns, Gov. Nelson Dingley appointed a close associate of Granger to the commission working to clean up Maine’s Constitution. That former partner, Frederick Pike, then successfully proposed omitting Section 5 from future printing. Lastly, all of this was happening at the same time that the Supreme Court was finalizing its ruling in Granger’s favor.

“Documentation concerning the redaction is thin, but it was convenient for the state that the redaction took effect in time for Maine to avoid compensating the tribe and paying Granger’s damages,” Burns wrote in Maine History. “With Article X, Section 5 out of sight, Maine managed to dodge both outlays and ignored advocates for the tribe who refused to turn a blind eye to Article X, Section 5 in the aftermath of Granger v. Avery.”

Sure enough, Maine state government never reimbursed the Passamaquoddies and actually siphoned off money from a Passamaquoddy trust fund to pay Granger.

But Burns’s theory isn’t embraced by everyone.

Responding to her work, Esty-Kendall and Hampson reiterated that “the state did not need a nefarious motive for redaction” because Maine courts didn’t recognize tribal land claims. And the administration of Gov. Janet Mills, which opposes amending the constitution to resume printing the omitted sections,characterized the proposal as “a misguided attempt to right a historic wrong that never occurred.”

So now Maine voters will get to decide this fall — 148 years after parts of the constitution were suppressed — whether to bring those sections back to life on the printed page.

Breaking down questions 5, 7 and 8

Of the four constitutional amendments, two would affect Maine laws that allow citizens to propose laws via referendum, a process sometimes referred to as direct initiative or citizens initiative, or to repeal existing statutes through a process known as a people’s veto.

The ability to propose legislation through citizens initiative has been used to pass consequential laws like raising the state’s minimum wage, expanding eligibility for health coverage for low-income people through Medicaid and ranked-choice voting. People’s vetoes were used to overturn a sweeping tax reform law in 2010, as well as a law that repealed Maine’s same-day voter registration law in 2011.

The citizens initiative and people’s veto procedures are enshrined in the Maine Constitution and so are the procedures for qualifying for the ballot. Question 5 and Question 7 on this year’s November ballot make changes directly affecting those procedures.

Question 5 gives election officials more time

Question 5 asks Maine voters: "Do you favor amending the Constitution of Maine to change the time period for judicial review of the validity of written petitions from within 100 days from the date of filing to within 100 business days from the date of filing of a written petition in the office of the Secretary of State, with an exception for petitions filed within 30 calendar days before or after a general election?"

At its core, Question 5 is designed to give state election officials more time to make sure citizen-initiated proposals have legitimately qualified for the ballot.

Before campaigns proposing citizen-initiated laws can put their legislation on the ballot they first have to qualify by gathering enough signatures from Maine voters. The qualifying threshold changes after each gubernatorial election, but the process of validating those petition signatures is a painstaking one that requires state election staff to comb through tens of thousands of petitions to make sure the signatures on them are real people, not forgeries or duplicates.

It’s an important part of the qualification process and aspiring campaigns have been rejected for irregularities or turning in signatures that don’t match the ones voters have on file with the state. It happened in 2016 when the secretary of state rejected an effort by a campaign to build a casino in southern Maine.

Robert F. Bukaty

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AP file

Under the Maine Constitution, staff for the Elections Division has an allotted amount of time to perform this verification work once campaigns begin turning in petitions. That’s what Question 5 seeks to change.

While Question 5 states that it changes the time for judicial review of ballot petitions, it really gives election officials more time to examine them and make sure they’re legitimate. As Deputy Secretary of State Julie Flynn testified when supporting the bill that led to Question 5 in March, the legislation “does not change the amount of time a petition campaign has to gather signatures, nor the lifespan of those signatures.” It also “does not change the timeframe in which the court may conduct judicial review,” a process that allows campaigns to challenge election officials’ decisions on petition validity in court.

Why are election officials backing this change now? Because last year they were slammed by the timing of petition submissions and administering the 2022 election. Staff were forced to work 35 straight days to accomplish both tasks as prescribed in law, incurring overtime and other costs. But Flynn believes pulling that off again might not be possible in the future, potentially compromising the integrity of the validation process or affecting how state officials conduct elections.

Question 7 allows nonresidents to circulate ballot petitions

Question 7 asks Maine voters: "Do you favor amending the Constitution of Maine to remove a provision requiring a circulator of a citizen's initiative or people's veto petition to be a resident of Maine and a registered voter in Maine, requirements that have been ruled unconstitutional in federal court?"

The Maine Constitution currently requires that all people circulating petitions for citizens initiatives and people’s veto initiatives are Maine residents and registered voters. Ballot campaigns have ways around these requirements, but a conservative political action committee challenged them, and a U.S. District Court judge ruled in 2021 that the requirements were a violation of the First Amendment in the U.S. Constitution. The First Circuit Court later affirmed that ruling.

Question 7 effectively aligns Maine’s Constitution with that decision by eliminating the residency and voter registration restrictions on petition circulators. It might not be a popular change with some, including Secretary of State Shenna Bellows, whose office unsuccessfully appealed the U.S. District Court ruling to the First Circuit Court. However, Bellows’ office now supports the change because of the rulings by federal courts.

If it passes in November, the practical effect for Mainers is that they could encounter more out-of-state petition circulators. The change will be welcome for ballot campaigns that struggle to find Maine-based circulators.

Question 8 restores voting rights to people under guardianship for mental illness

Question 8 asks Maine voters: "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?"

Article II of the Maine Constitution establishes the qualifications for voting in state and local elections, including residency and being at least 18 years old. It also includes a prohibition on people “under guardianship for reasons of mental illness.”

Question 8 seeks to remove that prohibition — for the third time.

In 1997 and 2000, the Legislature advanced constitutional amendments that would have removed the guardianship restriction, but voters defeated it both times. The following year voting rights advocates challenged the prohibition, arguing that it disenfranchises people with mental illness and assumes they’re unable to make voting decisions.

A U.S. District Court judge in 2001 ruled in the advocates’ favor, saying that the prohibition violates the due process and equal protection clauses in the 14th Amendment of the U.S. Constitution.

State lawmakers subsequently removed the restriction from its election code. However, it remains in the Constitution because amending the document requires a two-thirds vote from the House and Senate and an affirmative vote from Maine voters. Twenty-two years after the judge’s ruling, the Legislature this year mustered the support to send the amendment to voters.

— This story was updated Sept. 11, 2023 to reflect that voters have been asked twice previously to amend the Maine Constitution as proposed in Question 8.

Maine's Political Pulse was written this week by chief political correspondent Steve Mistler and State House correspondent Kevin Miller, and produced by digital editor Andrew Catalina. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.