Ballot Question Challenges – To Expedite or Not to Expedite? That Is the Question.

The Law Court recently issued a decision in Caiazzo v. Secretary of State that was interesting on several levels.  (Full disclosure: this blogger represented the petitioner in the appeal).  One procedural aspect of the decision is particularly interesting, as it will affect the timing of future challenges to the Secretary of State’s determination regarding the wording of ballot questions for direct initiatives.

Caiazzo involved a voter’s challenge to the Secretary’s decision regarding the ballot question for a direct initiative.  The Superior Court handled the challenge on an expedited basis, under 21-A M.R.S. § 905.

Section 905 provides that voters (specifically, “any voter named in the [initiative] application . . ., or any person who has validly signed the petitions, if these petitions are determined to be invalid, or any other voter, if these petitions are determined to be valid”) may challenge the Secretary’s decision whether to validate petition signatures for a direct initiative.  Section 905 also provides a substantive standard for challenges to the wording of ballot questions, requiring ballot questions to be understandable and not misleading.  Section 905 then provides that any action under the statute must be brought within 10 days of the Secretary’s action, a decision by the Superior Court must be rendered within 40 days of the Secretary’s action, and the Law Court’s decision must be issued within 30 days thereafter.  This timeline ensures that a challenge will not complicate preparation of ballots.

A related statute, Section 901, provides that “a voter named in the [initiative] application . . . may appeal any decision made by the Secretary of State under this section [governing petitions and ballot questions] using the procedures for court review provided for in section 905.”

After the Superior Court followed the expedited timeframe of Section 905 in Caiazzo, the Law Court took up the appeal and also complied with the schedule set forth in Section 905 by issuing a decision within 30 days.   The Law Court nevertheless held that challenges to a ballot question brought by the opponents of an initiative are not governed by Section 905 – even though no party had made this argument in the Superior Court or before the Law Court.

The Law Court reasoned as follows.  Before 2007, a ballot question was prepared before the initiative petition was circulated for signatures and was placed on the petition form itself.  According to the Law Court, because the question was present on the face of the petition, the clarity of that question was implicated in any judicial review of petition-related challenges under Section 905 – including by initiative opponents.  After 2007, however, ballot questions are no longer included on the face of the initiative petition; instead, ballot questions are prepared later, after the petition has been validated.  The Law Court therefore concluded that Section 905 on its face now applies only to the Secretary’s determination regarding the validity of the petition, not to review of the ballot question – even though Section 905 still provides standards for the clarity of ballot questions.  The Law Court also concluded that Sections 901 and 905, read together,

permit[] only the [initiative] petition’s applicants to seek judicial review of the Secretary of State’s drafting of the ballot question.

Because Petitioner Caiazzo was “not a ‘voter named in the [initiative] application,’” the Law Court held that Section 905 did not apply to the appeal.  Instead, the Law Court concluded that Petitioner Caiazzo’s appeal was an ordinary Rule 80C appeal and was not subject to the expedited schedule of Section 905.

The Law Court’s decision has sweeping ramifications.  It means that, even though Section 905 was concededly drafted in order to permit any voter to challenge the wording of a ballot question on an expedited basis, subsequent legislative changes that did not expressly negate this power nevertheless by implication deprived everyone other than the proponents of an initiative of the right to challenge the ballot question on an expedited basis.  Accordingly, anyone who opposes an initiative and believes the wording of the ballot question is unclear or misleading may or may not be able to obtain relief in a timely manner because typical Rule 80C standards would apply.

The implications of the decision are significant.  If the courts choose not to expedite an opponent’s ballot question challenge (or if the proponents of an initiative are successful in delaying the outcome of that challenge), it is possible that the ballots would be printed and a vote held before any decision was issued on the wording of the ballot question.  Likewise, because traditional Rule 80C timeframes apply, the opponent could potentially delay bringing a challenge for up to 30 or 40 days – thereby creating havoc in the ballot preparation process and making it very difficult for courts to timely resolve the wording challenge.  In short, there may be no timely decision in a ballot question challenge brought by an opponent of an initiative.

This raises a host of questions.  What would happen if, after voters have adopted an initiative, a court were to hold that the underlying ballot question was unclear or misleading? Would the vote be invalid? Or would the challenge itself simply become moot after the vote?

But the questions don’t stop at questions of timing; the opinion also states, without further explication, that ordinary Rule 80C appeals are “not . . . subject to the standard of review” set out in Section 905.  Does this mean a challenge by an opponent of an initiative is governed by a different set of standards than a challenge by a supporter of an initiative?  There does not appear to be any ready explanation for why voters on one side of an issue could enforce a different standard for ballot clarity than voters on the other side of an issue.  Don’t all voters have the same right to a clear and not misleading ballot question?

There are many unanswered questions raised by the decision in Caiazzo.  Perhaps the Legislature will weigh in to clear up these questions.


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