Maine high court’s CMP corridor decision will change referendum politics for good

Bangor Daily News

Maine’s high court checked Mainers’ right to legislate after an explosion in the use of referendums in recent years. The seismic decision by the Maine Supreme Judicial Court on Thursday to effectively prevent a question that would kill Central Maine Power’s $1 billion corridor proposal from going on the November ballot will have repercussions for years, but not just around the controversial project and perhaps not how you think.

The ruling made sense. The judges said neither legislators nor citizens could make a law asking utility regulators to overturn a past decision because they turned the power to make those decisions over to that executive branch agency. The point was the citizens had no right to weigh in on this kind of retroactive law barred by the U.S. Constitution federally and in states.

But the court made a rare intervention into referendum politics when it rejected an argument from Secretary of State Matt Dunlap that voters should be allowed to express opinions even if the law could not stand. That has happened on other referendums with constitutional issues, notably the ranked-choice voting law in 2016 later was brought into compliance by the Legislature. Judges distinguished this by noting difference in voter and legislative authority, but it dooms.

All of this comes as the use of referendums exploded in an era of divided government in Augusta under former Gov. Paul LePage. The 13 referendums voters decided on during his tenure were more than were voted on between 1909 — when citizen initiatives became legal — and 1972. Courts have often deferred to the people, but they applied a new test here. While it may only apply sparingly, it will create another hurdle for referendum efforts — particularly advisory-type ones — in the future.

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