Lawmakers weigh proposal to stymie unconstitutional ballot questions

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AUGUSTA — A bipartisan group of senators has proposed a measure that would create a method to hit the brakes on referendum proposals deemed unconstitutional.

“The constitutional rights of Maine people should never be subject to a majority rule process,” said state Sen. Eric Brakey, an Auburn Republican whose bill is co-sponsored by seven other senators, including Democrat Nate Libby of Lewiston.

The bill would let the governor, attorney general, Legislature or 500 Mainers ask for an advisory opinion from the state’s Supreme Court if they think a referendum may be unconstitutional.

If a majority of the justices agree, the proposal would require the secretary of state to reject the effort to put the proposition on the ballot.

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The Committee on Veterans and Legal Affairs, which is chaired by another co-sponsor, Republican Garrett Mason of Lisbon, is holding a public hearing on the bill Friday.

To become law, the state would have to amend its constitution.

That requires a two-thirds vote by both the House and Senate to put the proposal on the ballot in November. If voters approve, it would become law.

It follows on the heels of a couple of ballot questions that some deemed unconstitutional, including a ranked choice voting proposition that voters approved. The state Supreme Court is considering its constitutionality at the request of the Senate.

Another proposal that some questioned would have required background checks for all gun buyers. It fell short on Election Day.

The state’s Republican Party has already weighed in with its support for Brakey’s measure.

“The rights and dignity of the people of Maine should not be subject to popular vote,” Jason Savage, its executive director, said in a press release.

Brakey, who is hoping to unseat U.S. Sen. Angus King in 2018, said it’s important “to protect the constitutional rights of Maine people from the whims of the moment.”

Brakey said that with “outside special interests” seeking “to exploit our state’s referendum process, this legislation would establish that our fundamental rights as Maine people are not up for vote.”

Under Brakey’s bill, it would not be necessary for a majority of the Legislature to request the Supreme Court’s opinion. Instead, it calls for at least one-third of each house to make the request.

The opinion would have to be requested within 10 days of the filing of a written petition for a ballot question. The justices would have no more than 30 days to make a ruling.

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