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Abstract

Citizen initiatives and referendums are important tools for participatory democracy. Because initiatives often concern contentious public policy matters, opponents of pending initiatives have at times turned to the courts to prevent particular initiatives from appearing on upcoming ballots. Courts typically will adjudicate such pre-election challenges when plaintiffs assert the proscribed procedural requirements for voting on an initiative have not been met or when plaintiffs allege an initiative’s subject-matter is outside the constitutionally delineated scope of permissible initiative content. However, because of the ripeness justiciability doctrine that requires a concrete, certain, and immediate legal problem, courts generally will not adjudicate pre-election challenges that claim an initiative would be substantively unconstitutional if enacted. Instead, courts reserve adjudicating substantive challenges until after an election if voters approve the initiative—i.e., when the controversy has become ripe for review. In Avangrid Networks, Inc. v. Secretary of State, Maine’s Supreme Judicial Court held that a pending initiative should be excluded from the November 2020 ballot because the initiative sought to exercise authority beyond the legislative power conferred on the electorate by the Maine Constitution. This Note argues the court’s analysis improperly went beyond the limited question of whether the initiative sought to exercise power that is specifically delegated to other authorities by the State constitution and instead conducted a substantive review of the constitutionality of the measure if it were to be enacted.

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