RULE OF LAW

You don’t have to be a former chief justice of the Maine Supreme Judicial Court to know that the state Constitution trumps state statute. The opinion Daniel Wathen, who is a former chief justice, gave Monday to the Senatorial Vote Committee to that effect regarding the counting of late absentee ballots in a special election was not so much a deep exploration of constitutional law as it was a basic civics lesson.

The Maine Constitution, as Mr. Wathen observed, is quite clear (Article IV, Part Third, Section 3): “Each House (that is, House of Representatives and Senate) shall be the judge of the elections and qualifications of its own members…” This is a broad power, the kind

of power constitutions define, designed to establish an ultimate authority for every eventuality. Something, however, keeps this power from being abused.

That something is statute. The potential for abuse in this constitutional provision is obvious – a majority party could, if it so desired, arbitrarily establish new standards for judging every election and the qualifications of every member. The statutes regarding elections attempt to prevent this by setting ground rules that create the expectation among citizens that such arbitrary actions will not occur.

The ground rule for late absentee ballots also is quite clear (Title 21-A, Chapter 9, Subchapter 4, Article 1, section 755): “In order to be valid, an absentee ballot must be delivered to the municipal clerk at any time before the polls are closed.” This is a very specific rule, on the books since 1953, the kind of rule legislatures pass to flesh out the framework of the Constitution. The entire body of election law should be seen, then, as the criteria, agreed upon in advance, by which the houses will judge the elections and qualifications of

its members.

The particular circumstance is that a special election held March 5 to fill a Senate vacancy in District 27 (part of Portland and neighboring towns) ended, after a recount, with Democrat Michael Brennan leading Republican Sally Vamvakias by a mere 11 votes. There are 37 disputed ballots – ballots rejected election night as improperly filled out by local elections officials – that now are being reviewed by the seven member Senatorial Vote Committee (three from each party, plus an independent). This review is proper and necessary. The specific role of local election officials on this matter is merely to ascertain on election night whether ballots are properly filled out. The task of trying to determine later if the voters’ intent can be gleaned from those defective ballots belongs to lawmakers.

Then there are the late absentee ballots. A reported 36 were received by local election officials the day after the March 5 vote. Some were postmarked March 2, some March 4. Some lawmakers want them counted, saying the outcome of an election should not be determined by postal delivery. But there are late absentee ballots in every election and they are never counted. Maine’s very liberal laws on absentee ballots gives voters no less than 30 days to get them in the mail; requiring the counting of ballots not cast during that generous time frame would impose substantial election costs on every municipality in the state. More importantly, ignoring a law used in every election for nearly a half century, changing the rules after the fact, requires a better reason than a close election.

Lawmakers certainly can change the law for future elections to count absentee ballots postmarked before the polls close but delivered after. They certainly can change the law for an election already held. Mr. Wathen’s opinion confirms that. Lawmakers should remember, however, that he was offering that opinion as a constitutional scholar, not as their conscience.