Coping With Confusion: A Unitary Procedure for Judicial Review of the Referendum Process

Although our state and national political systems are models of representative government, the Maine Constitution provides an important mechanism for direct democracy. Indeed, the people of Maine expressly reserve in the state constitution "power to propose laws and to enact or reject the same at the polls independent of the Legislature." Maine people propose such laws by means of the referendum process. Use of the referendum has become an increasingly widespread mechanism for addressing pervasive societal concerns such as land use regulation, environmental policy and public health issues. The prevalence of interest group politics undoubtedly influences Maine's electorate to use the referendum process with increasing frequency in order to convert popular initiatives into law. While this form of direct democracy enables voters to participate in the law-making process, such participation is not without dangers warranting safeguards. Maine's referendum process is not designed to educate voters as to the content of citizen-initiated legislation. The referendum ballot question merely identifies the proposed legislation, thereby placing on each voter the responsibility to learn the substance of the proposed law. Although referendum ballot questions are not intended to educate voters, the questions must at least clearly identify the measures in order to avoid confusion. The danger that a ballot question might mislead the electorate justifies an important safeguard: a procedure whereby voters may challenge the validity of a referendum ballot question. Recent cases, however, demonstrate that considerable procedural confusion characterizes attempts to challenge the validity of referendum ballot questions. After briefly outlining the constitutional and statutory requirements of the referendum process in Maine, this Comment highlights the aspects of the process most likely to engender challenges. The Comment also examines the possible procedures for instituting a referendum challenge, and it evaluates the recent cases that have contributed to the procedural confusion in this area. This Comment contends that the Maine Legislature should codify a unitary procedure for referendum challenges. Adoption of such a procedure will not only eliminate the present uncertainty, but also will provide a more effective safeguard to ensure the integrity of this important vehicle of direct democracy.