Three 2016 state referendums have legal, procedural defects

Things may not be what they seem.

Half of the six Maine state referendums have been drafted with legal or operational problems, according to the state Attorney-General, lawyers and past legislative practice.

They are likely to produce results differing from their sponsors’ intention.

The three at issue are marijuana legalization (Question 1), the special fund for education (2) and ranked-choice voting (5).

The marijuana bill is meant to allow possession of the substance by people 21 years of age and above.  To accomplish that result, the law completely repeals the ban on such possession by any persons of any age, except for limited purposes.

Because the proposal deals with people 21 and over and but is silent on those younger, it has the presumably unintentional effect of allowing unfettered possession by children and others under 21.  That’s the Attorney-General’s view.

If the proposal passes, it would be up the Legislature to move quickly to eliminate the under-age loophole.

The education proposal would place a surcharge on the state’s highest income taxpayers and places the revenue into a special account to be used only for education.

Whenever the Legislature fails to appropriate funds to cover 55 percent of the education cost, as required by an earlier referendum, it would use funds from the special account to boost outlays up toward the required level.

In practice, the Legislature has never appropriated sufficient funds to meet the 55 percent mandate.

The new proposal places no new requirement on the Legislature for the covering base education funding.  It could take advantage of the new special account to replace some of the outlays it might otherwise have supplied.

If the Legislature chose to use dollars from the special account to displace other education funding, thus missing the 55 percent target, it would be following its own precedent.  In fact, it could choose to negate the current proposal entirely by cutting base education spending.

It’s difficult to find a way the Legislature could fix the situation and guarantee the voters’ intentions would be followed, having failed repeatedly to obey the earlier referendum.

On ranked-choice voting, the Maine Constitution now states clearly that a plurality of votes produces an election winner.  Passing ranked-choice voting won’t override that constitutional rule, according to the state Attorney-General.

To overcome that problem, the Constitution would have to be amended.  That requires a two-thirds vote of each house of the Legislature and a majority vote in a statewide referendum.

Some lawyers see another constitutional problem, this one under the U.S. Constitution.

If all of a voter’s ranked choice candidates were eliminated before the final round, only the votes of those who picked, by ranked choice, one of the surviving candidates would count in that last round.  They would vote at least one more time that voters who had picked only eliminated candidates.

The Fourteenth Amendment guarantees Americans “the equal protection of the laws.”  This equality could be undermined by allowing some people more votes than others.

The Legislature could not repair this problem even if the Maine Constitution were amended to allow ranked-choice voting.  Only some kind of run-off could replace plurality election with a majority vote.

A U.S. constitutional challenge to ranked-choice voting could create prolonged confusion.

In all three cases, the ballot question may seem simple, but the implications are complicated and potentially open to lengthy dispute.

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil is a former local, state, national and international organization official. He is an author and newspaper columnist.