After Election Day, lawmakers treated the will of Maine voters as suggestions
Laws approved at the ballot box were discarded or altered in the session that just ended, actions that lawmakers defend but which may have political repercussions.
By Scott ThistleStaff Writer
In a protest at the State House on July 3 – the third day of the state government shutdown – Tom Gilbert of Topsham holds up a sign in favor of the voter-approved 3 percent tax surcharge on the state's highest earners. Later that day, the Legislature passed a budget that dropped the surcharge. Staff photo by Brianna Soukup
AUGUSTA — The will of the people took a beating at the State House this year.
Several laws that voters passed at referendum in November were repealed, amended, delayed or left in legal limbo, including recreational use of marijuana, ranked-choice voting, the minimum wage and an income tax surcharge to fund education. The Legislature also approved changes in the initiative process that will make it harder and more costly to get a question on the ballot in the future.
AFTER THE PEOPLE SPOKE ...
There were six referendum questions on the November ballot. Four of the five that passed required legislative action:
Question 1: Legalize recreational use of marijuana.
Legislative response: Formed special committee to implement; approved one-year delay in opening of retail shops.
Question 2: Collect a 3 percent surcharge on household income over $200,000 and funnel the revenue into education.
Legislative response: Repealed.
Question 4: Raise the minimum wage to $12 an hour by 2020 and eliminate the tip credit.
Legislative response: Restored the tip credit.
Question 5: Establish ranked-choice voting for state and congressional offices.
Legislative response: Repeal attempt failed, more action expected in 2018 session.
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Critics contend lawmakers went too far and ignored voters' wishes by tampering with questions that were approved at ballot boxes across the state last fall. However, others argue that laws passed by voters often conflict with the state constitution or reflect the agendas of special interest groups that don't mesh with the will of Maine voters.
Sen. Majority Leader Garrett Mason said lawmakers have been put in the position of answering to two masters – their oath to the constitution and their responsibility to voters. He said people need to understand that Maine, like the United States as a whole, is a constitutional republic in which voters elect people to represent their interests.
"There's a huge problem and I think the underlying problem with what is going on in politics today is our politicians' lack of understanding of what kind of government we operate under," said Mason, a Republican from Lisbon Falls.
Maine is one of 24 states that allows citizens to make laws by bringing ballot questions to voters. Often the campaigns are sparked by proposals that legislators have rejected or refused to consider. In two other states, voters can only go to the ballot box to veto laws they disagree with.
LEGAL DECISIONS, BUT STILL MESSY
Legally, Maine's Legislature is under no obligation to leave ballot question laws untouched. Laws passed at the ballot box are no different than laws passed by the Legislature and they can be amended, repealed or altered by the Legislature at any time. Often the Legislature needs to amend a ballot question law so it will be in harmony with other statutes, making citizen-passed laws "workable."
But the pressure to not alter a voter-passed law is usually purely political. This year lawmakers frequently reminded one another that the Legislature has altered or repealed ballot question laws at least 71 times in the more than 100 years that Maine citizens have had the ballot initiative process available to them. Ballot law changes made by the Legislature this year include restoring the tip credit to the state's minimum wage law, repealing a 3 percent surcharge on high-wage earners and delaying the legal sale of recreational marijuana until 2018. And despite an advisory opinion by the Maine Supreme Judicial Court and a protracted debate, the Legislature was unable to reach a consensus on ranked-choice voting and left the voter-approved law in legal limbo.
Overall, the ballot questions passed in 2016 created a mess for the Legislature, which was thrown into dysfunction over the 3 percent income tax surcharge to fund education. Disagreement over that question snarled state budget negotiations, leading to a partial government shutdown that lasted three days this month.
"Honestly, I would say it's consumed at least 80 percent of our time," Mason said. The Legislature is now working overtime, past its constitutional adjournment date of June 21, and is unlikely to finish its work before Aug. 1. Mason said in large part that's because lawmakers have been trying to make right the ballot question laws dealing with everything from marijuana to the minimum wage to ranked-choice voting.
"And the constitution is paramount, it is number one, it is the social contract that we have with one another, that this is the fundamental underpinning of how we are going to govern, and some of these things we did by referendum were unconstitutional," Mason said. He said in his view, when the will of the people goes against the constitution "the decision is very clear, you have to do what the constitution dictates."
He also said ballot questions often gain support because of advertising campaigns that convince voters to support measures that have been vetted and rejected by the Legislature for a variety of reasons.
Lawmakers who have defended the ballot question results say the Legislature is being hypocritical in reversing the will of voters on some issues but not on others, and that there could be a political backlash coming.
Rep. Kent Ackley, an independent from Monmouth, spoke repeatedly during floor speeches in the House against overturning the will of voters. Ackley said his advice to people is to try to vote for the candidates who will support their views on ballot questions as well.
"The reality is that the voters were very clear about what they wanted, what they wanted us to do," Ackley said. "So the big picture for me is if we go in and completely reverse the will of the voters, we are sending the wrong message to the people who spent the time and effort to go and cast votes."
WILL STATE LAWMAKERS PAY A PRICE?
Meanwhile, some of those who worked on ballot question campaigns last fall said they fully expect lawmakers will be held accountable by voters.
Former state Rep. Diane Russell, a Portland Democrat, supported both the marijuana legalization drive and the ranked-choice voting campaign. Russell said extensive effort goes into a ballot question campaign, and she expects that people who supported those campaigns are going to be angry with the Legislature.
"When citizens go through that process, absolutely on the other end, if you send them a single-fingered salute they are going to disengage, they are going to be angry," she said. "Hatred is not the opposite of love, apathy is, and that's what we are seeing in our democracy."
But James Melcher, a political science professor at the University of Maine at Farmington, is not convinced that lawmakers will feel much of a backlash in their races because many, like Mason, were voting the views of their districts. Melcher agrees, however, that the degree to which the current Legislature has been willing to overturn the will of the people is remarkable.
"I would say I can't recall a time when there's been so little connection between how people voted and what government did, other than Gov. (Paul) LePage refusing to authorize voter-approved bonds," he said. "I think it will make people more cynical about elections overall."
Melcher said that because most of the ballot measures that are being repealed or amended were largely favored by more liberal voters, he doesn't see it as having much impact on conservative lawmakers.
PROCESSED FORCED ACTION ON ISSUES
Some activists said that, to a large degree, the referendum process worked, even with the legislative alterations, because the ballot questions moved the political needle on key issues like the minimum wage and school funding.
Robyn Merrill, executive director of Maine Equal Justice Partners, a progressive advocacy group, said it is worrisome that lawmakers repealed voter-approved laws so quickly.
"But at the same time, we have a minimum wage that is going to be $12 and indexed and we do see more funding for education as a result of referendums that passed in the fall, so it's not as if we haven't made gains or progress as a result of ballot initiatives," she said.
Merrill is serving as spokeswoman for another ballot question committee, Mainers for Health Care, which is backing the question on this fall's ballot that will ask voters to expand Maine's Medicaid program.
She said when it comes to a Medicaid expansion, the Legislature has passed variations of an expansion five times, only to have LePage veto the legislation each time. That gives her campaign confidence that voters will approve an expansion and the Legislature will not have the political will to overturn that change.
"We know that the majority of the Legislature supports the policy and the majority of the Legislature has passed legislation with bipartisan support five times," Merrill said. "We know there are champions at the Legislature who would certainly go to bat for the policy itself, so it's hard to see a scenario in which the voters support and pass the initiative and the Legislature rolls it back."
Scott Thistle can be contacted at 791-6330 or at:
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