Maine Constitution

Elections, COVID-19, and the Maine Constitution, Oh My!

Late last week, the Law Court issued an important election law decision in Alliance for Retired Americans v. Secretary of State.  In its opinion, the Court held that Maine’s deadline for receiving absentee ballots (8:00 p.m. on election day) as well as the statutory provisions governing the validation of absentee ballots are not unconstitutional as applied during the COVID-19 pandemic.  The Court’s decision in Alliance for Retired Americans is notable on a few levels, including: (1) for reaching the merits of an appeal from an order on a preliminary injunction, (2) for espousing judicial restraint in modifying statutory deadlines, particularly close to an election, and (3) for re-emphasizing the Court’s “important responsibility” to interpret the Maine Constitution, independent of the U.S. Constitution.

First, it is notable that the decision was rendered on an appeal from an order denying a request for a preliminary injunction.  Unlike in federal court, orders granting or denying preliminary injunctions are not typically appealable in

The Law Court’s Answer Is Yes, The Maine Constitution Does Still Matter

Earlier this year, I asked a question on this blog:  does the Maine Constitution, now in its 200th year, still matter?  Shortly after, I offered a few reasons why it should still matter, including the Maine Constitution’s unique history, the nature of the state-federal relationship, and the doctrine of constitutional avoidance.  In the early 1980s, these considerations led the Law Court to adopt the “primacy approach” to constitutional interpretation, which, simply stated, means that courts give the state constitution independent force and meaning rather than simply interpret it in lockstep with the federal constitution.  In the following decades, the Law Court has not always consistently applied this approach.  In a notable pair of recent opinions, however, the Law Court expressly reaffirmed it, giving a clear answer to the question I raised: yes, the Maine Constitution does still matter.

Though it had lain largely dormant for many years, the primacy approach returned to the forefront in June with a notable concurrence by

Musings on the Maine Constitution’s Bicentennial, Coronavirus Edition

The coronavirus shut-down has been anything but a slow-down for this attorney-blogger, but it hasn’t entirely prevented me from continuing to muse about the Maine Constitution during its now-cancelled bicentennial celebration. So I thought I would give the Constitution a little more of the attention it is due, despite the coronavirus. (A welcome respite to think about something else, no?)

When I last blogged about the Maine Constitution, just before its 200th birthday, I asked whether it still matters. The Law Court seems to think the answer is “yes”: under its primacy doctrine, the Law Court has said the state constitution should be given force and meaning independent of the U.S. Constitution. The Law Court has also offered a few reasons for this primacy doctrine, and they are worth pondering.

The Law Court offered one reason in State v. Larrivee, where it observed that the Maine Constitution is the “primary protector of the fundamental liberties of Maine

The Maine Constitution Turns 200! Does It Still Matter?

On March 15, 2020, Maine turns 200 years old. For any Mainer, especially history buffs, the bicentennial is an occasion worth celebrating. For any legal beagle, the bicentennial is worth celebrating for an additional reason: Maine’s Constitution is also celebrating its 200th birthday.

The Maine Constitution was adopted at convention on October 29, 1819, approved by the people on December 6, 1819, and became effective on the same date Maine became a state. The Maine Constitution has proven to be one of the nation’s most durable state charters. By my research, only three operative state constitutions are older: those of Massachusetts, New Hampshire, and Vermont. But does the Maine Constitution still matter?

A recent Law Court decision highlights this question. In State of Maine v. Weddle, the Law Court was presented with an interesting search-and-seizure question relating to a Maine statute authorizing law enforcement officers to test the blood of all drivers involved in a fatal, or likely fatal,