Lawmakers Walk Fine Line Between Fighting Fraud, Protecting Speech in Ballot Process

Feb 17, 2017

While a partisan fight looms in the Legislature over changes that could make it harder for groups to use Maine’s citizen initiative process to pass new laws, bipartisan support is emerging to crack down on aggressive tactics used to get on the ballot. Lawmakers weighing new reforms must strike a tricky balance between policing fraud and protecting political speech.

Former Republican state Sen. David Trahan has been involved nearly a dozen ballot initiatives. The head of the Sportsman’s Alliance of Maine helped organize one that overturned a tax reform law nearly six years ago. And he’s fought to defeat other initiatives brought forward by the Humane Society of the United States and, more recently, a gun control effort funded by New York billionaire Michael Bloomberg.

Trahan supports the citizen initiative process. But, he says, “It’s like the Wild West, you guys need to get this under control.”

Trahan’s talking specifically about paid circulators, the hired guns used to gather the signatures needed to put a proposal on the ballot. He was testifying Wednesday in support of a bill that would change the Maine Constitution and prohibit the practice.

Paid circulators can earn between $3 and $10 per signature, sometimes more, depending on the campaign. And it has become a bit of an underground industry in the 26 states that allow citizen-initiated laws.

There are Facebook forums in which circulators from across the country talk openly about compensation, benefits and even flight and hotel suggestions.

But Trahan and others believe the financial incentive to collect signatures has created an atmosphere ripe for fraud and mayhem in the public squares and Walmart parking lots where the circulators go to solicit.

“I’ve seen fistfights, people fighting over petitions, paid circulators. I’ve seen them break into each other’s cars and steal petitions. I’ve seen every possible thing you can imagine going on,” he says.

Trahan is not alone in this assessment. Lawmakers, campaign workers and observers have routinely complained about fraud and aggressive tactics by paid signature gathers.

The issue rose to prominence last year when the sister of a controversial gambling impresario launched an unorthodox bid to install a casino in Southern Maine. It was a $2.5 million effort that drew complaints of aggressive tactics from the public and claims by some out-of-state circulators that they were stiffed by the campaign.

The campaign’s bid last year was disqualified by state election officials for a host of irregularities discovered in the signatures collected. But it has since spent another $1 million and has qualified for this November’s ballot.

There’s bipartisan support for a crackdown and to ban paid circulators altogether. There’s just one problem: the First Amendment. It protects free speech and political speech, and nearly 20 years ago a Maine district court ruled that political speech allows campaigns to pay people to circulate petitions.

In doing so, the court struck down a 1993 law that prohibited the practice.

“I am very familiar with this. I was a witness for the state and got grilled by the district court judge,” says Julie Flynn, deputy Secretary of State.

Flynn attempted to defend the 1993 law in court. But she says the court wasn’t convinced that fraud was a problem in Maine’s citizen initiative process. Nor did it buy the argument that fraud is more pervasive in campaigns that use paid circulators.

At Wednesday’s hearing, Flynn told lawmakers that she believes that it can be.

“Intuitively I agree with you. I believe it is more incentive. But we have a problem with demonstrating it to the court,” she says.

And so the tension continues, says state Rep. Louis Luchini, the Democratic co-chair of the Veterans and Legal Affairs Committee.

“That’s what we’ve always struggled with, with the citizen initiative. You know, you want to put measures in place to protect it, but you can’t do anything that would infringe on anybody’s First Amendment rights,” he says.

Luchini says he and GOP co-chair Sen. Garrett Mason are discussing the creation of a work group to prevent fraud and reform the process.