BDN: If referendums are unconstitutional, they shouldn’t be on the ballot (NECEC)

by The BDN Editorial Board December 2, 2022

A year after voters soundly rejected a power line corridor through western Maine, the Maine Supreme Judicial Court has ruled that the referendum was unconstitutional. The court also ruled that the lease at the heart of the dispute over the transmission line was valid, negating a central argument of opponents of the project.

Whether you support or oppose the New England Clean Energy Connect (NECEC), this is a troubling outcome, mostly because of its timing.

The Bangor Daily News editorial board supported the corridor, believing that it would bring more clean energy into the region’s power grid. We also had concerns about the language of the November 2021 referendum, especially its retroactive portions. However, we are now concerned that overturning the will of the voters may lead to more distrust of the government and courts.

As it is now, opponents of the project may blame the Maine Supreme Court for rejecting a referendum that was supported by nearly 60 percent of voters and for siding with Central Maine Power, an unpopular company.

That is not the fault of the court. State law and policy allows questions to appear on the ballot even though they may not later pass constitutional muster. 

This is a practice that lawmakers should strongly reconsider. Adding a provision to state law that allows the Maine secretary of state, after consultation with the state attorney general, to reject initiative petitions that don’t comply with the U.S. or Maine constitutions simply makes sense. A process is already in place that allows petitioners to sue if they believe the secretary of state wrongly rejected a petition. This would put the court challenges on constitutional grounds up front, rather than after a ballot measure had been voted on.

A bill to add a constitutionality assessment as part of the secretary of state’s referendum review process would be timely.

As we’ve written before, it would be much better if the constitutionality of ballot questions could be determined — or at least significantly clarified — before they are put to voters. Such a process could save Maine people, companies, regulators and others a lot of headaches, and money.

The court ruling issued Tuesday looked at three major issues surrounding a lease that would allow the transmission corridor to cross public land. The first, and most important, is whether a citizen’s initiative can retroactively invalidate such a lease. The court ruled that such a retroactive action violates the Contract Clause of the U.S. Constitution.

This follows a Maine Supreme Court ruling in another corridor-related case in August that found parts of the referendum are likely unconstitutional. It sent parts of that case back to a lower court for further action to determine if construction on the project could be allowed to restart.

At the core of Tuesday’s ruling, the court examined whether the Bureau of Public Lands violated its authority in granting the lease, first in 2014 and again in 2020, and whether it followed proper procedure to do so. Opponents of the corridor had argued that the bureau needed legislative approval for the lease because it “substantially altered” public land. A lower state court agreed.

The Supreme Court disagreed, saying that the lease, which covered only a small amount of public land in rural Somerset County, would not substantially alter the use of that land, which was already subject to commercial uses, including another power line.

This assessment negates a major argument made by opponents of the corridor during the referendum campaign.

The BDN Editorial Board operates independently from the newsroom, and does not set policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.

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