In the shadow of the debacle in Florida during the 2000 presidential election, states must constantly reassess the structure they have in place to avoid the contentious and subjective vote counts that resulted from an inadequate voting system. Our research shows that Maine’s system is riddled with inadequacies that present the possibility of voter disenfranchisement through double-voting, voter impersonation, and non-citizen voting.

In order to contain these problems, Maine must take steps to create a more sound structure and process for verifying the integrity of cast ballots. While the practice of Election-Day Registration is a convenience that Mainers may take advantage of, it does not allow the requisite time to ensure ballot integrity in the absence of stronger structural support.

Download the Full Report (PDF)

Background

Election-Day Registration (EDR) was implemented through legislation passed in Maine in 1972. It was first used in the elections of 1973. Maine’s use of EDR in the 2008 presidential election was roughly 6.7% of total turnout (49,666 of 744,542). ^[1]   In 2010, EDR represented 3.2% of total votes cast (18,364 of 580,538). ^[2]  As shown in Table 1, EDR is used primarily by younger voters, and very seldom used by voters above the age of 65.

In June 2011, the Maine Legislature passed LD 1376, which ended the practice of EDR, and set a two-day pre-registration requirement for new voters in a municipality.  This law set the same two-day cutoff for the use of absentee ballots.

In September 2011, a ‘People’s Veto’ of LD1376 was placed on this November’s ballot.  This placed the implementation of LD1376 on hold, and effectively restored the process of EDR until the November vote decides the future of the law.

As shown in Table 2, Maine is currently one of only nine total states that allow EDR.  In fact, 93% of all U.S. citizens are required to register in advance of election day.  Legislative initiatives to implement EDR have failed in 25 states since 2005, and referendum initiatives to implement EDR in California and Colorado both failed in 2002.

Potential for Fraud

California’s 2002 referendum to implement EDR  failed by a 59% to 41% vote. ^[3]  Major newspapers, such as the Los Angeles Times and San Francisco Chronicle, editorialized against the implementation of EDR, citing the potential for fraud as the major reason to avoid the practice. According to the LA Times, EDR “offers too many chances for fraud.” ^[4]  The San Francisco Chronicle noted that the referendum measure to implement EDR “simply does not include sufficient safeguards against fraud.” ^[5]

One of the most notable commentaries on the practice of EDR came from a 2004 report by the Milwaukee Police Department (MPD). The MPD noted a number of egregious breaches in the integrity of elections, and said this about EDR:  “The one thing that could eliminate a large percentage of fraud or the appearance of fraudulent voting in any given Election is the elimination of the On-Site or Same-Day voter registration system.” ^[6]

The potential for fraud in Maine resulting from EDR comes from a severe lack of structural safeguards in our overall process.  Maine voters are not required to provide photo identification or citizenship proof when voting or registering, leaving verification of the validity of registrants solely to the discretion of municipal clerks.  When voters register and vote on the same day, municipal clerks have no time to verify registrant eligibility, or check for duplicate votes in other municipalities.

Additionally, once a ballot is cast on election day, it is placed in the general population of ballots, leaving no ability to discount the vote if problems are detected after election day.  This leaves Maine’s elections exceedingly vulnerable to problems.

Another major hurdle to the practice of EDR is the lack of a sound central voter database.  Maine’s Central Voter Registry (CVR) does not allow for the verification of citizenship, and cannot be used as a safeguard on election day to check registrations.  Maine Secretary of State Charlie Summers conducted a recent review of 478 registrants in the CVR, and found that six registered voters were not U.S. citizens.^[7]  Summers’ investigation was limited based on the requirement of “articulable suspicion,” so the overall number of non-citizens registered to vote in Maine could not be determined. This bears repeating – Maine State Government has no ability to determine how many non-citizens are currently registered to vote in our state.

Maine’s Central Voter Registry (CVR)

The CVR was implemented in 2005 as part of the Help America Vote Act (HAVA), and was meant to provide “an accurate, secure and reliable CVR for Maine citizens.” ^{[8] [9]}  Although great strides have been made to purge erroneous records from the old paper record system, the CVR still falls short of being ‘accurate, secure and reliable.’

As shown in Table 3 prior to implementing CVR, Maine had more registered voters than voting-age citizens three times in the last ten general elections – in 1992, 1996, and 2004.  In 1996, the number of registered voters surpassed the voting-age population by more than 57,000.

CVR data correction is an ongoing process, and the Secretary of State’s office has brought the number of erroneous records down significantly in recent years.  However, there are still many problems with current voter data.  Though no thorough audit of the system has ever been conducted, a recent investigation by Secretary Summers revealed an 84% error rate in the registrations his office reviewed. ^[10]  Our research into the database shows a similarly-alarming set of problems.

MHPC found that 178,000 of 972,000 total registrants are shown to have registered to vote on January 1, 1850. The Secretary of State’s office has explained that these registrations did not occur in 1850, but that the date was used as an indicator of registrations that were entered into the system with missing registration data.

A series of other problems with the CVR follows:

• 1,452 active registrants listed as 211 years old

• 2,404 active registrants with birth dates prior to 1900

• 2,209 active registrants with no street address

• 294 active registrants, with the same name and address, but with two separate voter ID numbers. (This could be the result of fathers and sons with the same name, but the CVR provides no further information to provide clarity.  The Secretary of State’s office notes that prior to 2007, the number of multiple IDs was over 50,000.)

State officials cite federal regulations and lack of resources as roadblocks to a stronger central database, and state definitively that the CVR is currently not meant to be an election-day tool.  Discussions with the Secretary of State’s office have made it clear that efforts are being made to improve the CVR, and that it is very much a work in progress.  Nevertheless, our research shows clearly that the integrity of the data in the CVR is questionable, and that the CVR is an inadequate tool for structural support of our election and registration process.

Requiring Photo Identification

One of the most productive steps Maine could take to verify the validity and eligibility of voter registration would be to require photo identification.  Valid photo identification would create an immediate safeguard against possible non-citizen voting, and would also protect against voter impersonation.

The Maine Legislature will consider LD199, An Act To Strengthen Maine’s Election Laws by Requiring Photograph Identification for the Purpose of Voting, in the Second Session of the 125^th Legislature, which begins in January 2012.  If LD199 passes, Maine would join 15 other states that have passed similar measures, including a Democrat-sponsored measure that passed last year in Rhode Island.

Photo identification requirements have elicited controversy, but have been supported by both Republican and Democratic legislatures.  In fact, David Farmer, the spokesman for the People’s Veto campaign to reinstate EDR in Maine, publicly endorsed photo ID requirements in a recent radio interview. ^[11]

Additionally, claims of disenfranchisement through onerous financial burdens due to the cost of photo identification have been dismissed by the courts on a number of occasions, most recently in Georgia and Indiana. ^[12]  Claims of racial inequity in photo identification requirements, propagated through a study done by the Brennan Center for Justice, have also been discounted by further research. ^[13]

Adoption of photo identification requirements would not only shore up the integrity of Maine’s election system, it would also take us a step closer to a structure that would allow a safe and secure election day registration process, by ensuring those registering on election day are citizens and are in fact the person they claim to be.

Disenfranchisement Questions

The elimination of EDR through LD1376 has met claims of potential voter disenfranchisement from opponents.  While eliminating EDR will remove a convenience that many Maine voters have enjoyed, claims of disenfranchisement are unfounded.

The most prominent disenfranchisement claim is that physically disabled, elderly, or poor citizens will be prevented from voting because of their inability to make two trips to the polls, one to register and one to vote.  This is not a valid claim. LD 1376 eliminated Election-Day Registration, but does not eliminate Same-Day Registration.  Voters can register to vote and place their vote through an absentee ballot at the same time, as long as they do it more than two days prior to election day.  This allows voters who may be able to make only one trip to the polls the chance to register and vote at the same time.

Another claim is that voters who are inadvertently purged from voter lists will not be able to re-register on election-day.  This is also an invalid claim. LD 1376 allows for these voters to cast provisional ballots, which will be counted once the legitimacy of the registration is verified.

Some have made the assertion that the elimination of EDR is a tool used by Republicans to suppress Democrat turnout.  This claim can be easily refuted by looking at actual turnout numbers.  As shown in Table 4, in Maine’s 2010 election, Republican and Democrat EDR utilization was basically equal.

Finally, opponents of LD1376 have claimed that the implementation of EDR has resulted in increased voter participation.  This is inaccurate.  As shown in Chart 1, EDR has had no recognizable impact on voter turnout in Maine since its implementation in 1973. In fact, the three lowest turnout years since 1960 occurred after EDR was implemented.

As part of our research, MHPC conducted a public opinion poll to measure the sentiment of Maine voters on the issue of EDR.  As shown in Table 5 the poll shows that Maine voters reject the notion that EDR repeal disenfranchises voters.  In fact, a majority of those polled support the repeal of EDR, as well as the implementation of a photo identification requirement.

Interestingly, the highest utilizers of EDR – those in the youngest voting age range – were the most dismissive of the concept of disenfranchisement relative to the elimination of EDR.

Conclusion

Election Day Registration provides a convenience that is worthwhile to many Maine voters. However, Maine’s system simply lacks adequate safeguards to make its practice congruent with a sound voting system.

In the absence of key structural components – photo identification and a functioning and accurate Central Voter Registry – municipal clerks need time to manually verify the validity of new voter registrations.  Managing the integrity of 972,000 registrations through the Honor System is simply not a reasonable approach to our voting system.

Upholding the elimination of EDR is a good first step, but it is not a comprehensive solution to potential electoral problems. There are significant steps that still need to be taken in order to protect the integrity of our voting system.

Maine’s CVR needs a thorough audit to eliminate erroneous records, fix voids of data, and verify the eligibility of current registrants.  One possible solution that should be looked into is a check of the CVR against the E-Verify system, used by employers to verify the citizenship of potential employees.

Maine’s registration process also needs substantial overhaul.  Requiring photo identification, and on-site use of E-Verify to ensure citizenship, are two steps that could be taken in the short-term to substantially improve the integrity of our voting system. Additionally, municipal clerks need a more structured system for verifying the eligibility of new registrants, and more guidance should be provided by the Secretary of State’s office to create protocols that can be clearly implemented.

The Denver Post, referring to the Colorado legislature’s discussion of EDR, said it best: “We’re not convinced the system is capable of handling same-day registration while also maintaining the integrity of the election (though that day is likely coming, given the advancements in technology).” ^[15]

Election-Day Registration, while not practical now, is a laudable goal for Maine. We should use this goal as a motivation to swiftly implement a stronger and safer voting structure, so the people of Maine can have the faith that every eligible vote is counted, and that the legitimacy of our election results is protected.

Sources

[1] Maine Secretary of State.

[2] Maine Secretary of State.

[3] John Fund, “Stealing Elections,” 2008, p. 200.

[4] http://articles.latimes.com/2002/oct/20/opinion/ed-ballot20

[5] http://articles.sfgate.com/2002-10-20/opinion/17567970_1_election-day-election-day-provisional-ballots

[6] “Report of the Investigation into the November 2, 2004 General Election in the City of Milwaukee,” Milwaukee Police Department, p. 26: http://media2.620wtmj.com/breakingnews/ElectionResults_2004_VoterFraudInvestigation_MPD-SIU-A2474926.pdf

[7] Maine Secretary of State Press Conference Remarks on September 21, 2011. http://www.maine.gov/sos/news/2011/Secretary%20of%20StatePressConferenceRemarks09-21-11.pdf

[8] “Message from the Secretary of State,” The HAVA Bulletin: An Update on the Help America Vote Act, Issue #1, March, 2005.

[9] Maine Bureau of Corporations, Elections & Commissions CVR Webpage: http://www.maine.gov/sos/news/2011/Secretary%20of%20StatePressConferenceRemarks09-21-11.pdf

[10]  Maine Secretary of State Press Conference Remarks on September 21, 2011. http://www.maine.gov/sos/news/2011/Secretary%20of%20StatePressConferenceRemarks09-21-11.pdf

[11]  Interview Remarks from David Farmer, WGAN, September 29, 2011. http://560wgan.com/play_window.php?audioType=Episode&audioId=5493005

[12]  Hans A. von Spakovsky, “Voter Photo Identification: Protecting the Security of Elections,” The Heritage Foundation, July, 2011. http://www.heritage.org/research/reports/2011/07/voter-photo-identification-protecting-the-security-of-elections

[13] Hans A. von Spakovsky and Alex Ingram, “Without Proof: The Unpersuasive Case Against Voter Identification,” The Heritage Foundation, August, 2011. http://www.heritage.org/research/reports/2011/08/without-proof-the-unpersuasive-case-against-voter-identification

[14] The telephone survey of 500 Likely Voters in Maine was conducted by Pulse Opinion Research on September 7, 2011.  Pulse Opinion Research, LLC is an independent public opinion research firm using automated polling methodology and procedures licensed from Rasmussen Reports, LLC.

[15] http://www.denverpost.com/opinion/ci_14832168

*This report was co-authored by MHPC CEO Lance Dutson, Vice-President of Policy and Chief Economist Scott Moody and Research Associate Amanda Clark.

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Download the Full Report (PDF)

For more information, or to set up an interview with one of the authors, please contact Sam Adolphsen by email at sam@mainepolicy.org, or by phone at 207.975.6617 

The Maine Heritage Policy Center (MHPC) released a report today showing that steps must be taken to protect the integrity of Maine’s voting system. The report explains that Election Day Registration (EDR) is not a viable practice in Maine considering the many inadequacies found in the current structure of Maine’s voting system.

The report, “Protecting the Integrity of Maine’s Elections: Election-Day Registration in Maine,” was authored by MHPC chief executive officer Lance Dutson, vice-president of policy and chief economist Scott Moody, and research associate Amanda Clark.

“Free and open elections are the cornerstone of our democracy and a free and open election is one where every vote counts and is not negated by votes cast fraudulently or in error.” Dutson said. “This report examines our current voting system and indentifies areas of concern and ways we can address them, because the people of Maine must be confident in the integrity of our electoral process.”

Key findings from the report detail several startling issues with Maine’s voting system:

• In 3 of the last 10 general elections, there were more registered voters than voting-age citizens in Maine.
• 178,000 registered voters are shown to have registered to vote on January 1, 1850.
• There was an 84% error rate in registrations recently reviewed by the Secretary of State’s Office.
• 1,452 active registrants are listed as being 211 years old.
• 2,209 active registrants are listed as having no street addresses.

MHPC found that of the EDR utilization in Maine’s 2010 election, Republicans and Democrats utilized EDR at basically the same rate, both representing 24% of total EDR usage. EDR is rarely used across the United States, where 93% of all U.S. citizens are required to register to vote in advance of Election Day. The report notes that EDR has had no perceptible impact on voter turnout levels. In fact, Maine’s three lowest years of voter turnout in the last 50 years have occurred since EDR was implemented in 1973.

“Election Day Registration, while not practical now, is a laudable goal for Maine,” said Dutson. “It’s a good goal to work towards, but first we need to implement a stronger and safer voting structure. Election Day Registration should not be allowed until we can address the many inadequacies in our voting system. Managing the integrity of 972,000 registrations through the Honor System is simply not a reasonable way to conduct our elections.”

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Download the Full Report Here (PDF)

For more information, or to set up an interview, please contact Sam Adolphsen by email at sam@mainepolicy.org

A decision by the Legislature to end the practice of same-day voter registration in Maine has the support of a majority of likely Maine voters, according to a new poll commissioned by The Maine Heritage Policy Center (MHPC).

According to the poll, 53 percent of likely Maine voters support the Legislature’s recent decision to end same-day voter registration, including 72 percent of self-described conservatives and 53 percent of unenrolled/Independent voters.  47 percent oppose the elimination, including 71 percent of self-described liberals.

Critics of same-day voter registration believe the practice makes it too difficult for municipal clerks to verify potential voters meet residency and legal requirements before voting, increasing the chances that fraudulent votes impact Maine elections.  Advocates for same-day voter registration claim that ending the practice will disenfranchise voters and severely impact voter turnout.

Supporters of same-day voter registration may not have much luck with this argument.  By a 55 percent to 36 percent margin, those polled believe it is more important to protect against voter fraud than it is to maximize voter turnout.

The poll also asked respondents whether they favor requiring voters to present photo identification at the polls before casting their vote, which 56 percent do, compared to just 41 percent who oppose voter ID at the polls.

“Our democracy relies on the integrity of our electoral process.  Our system must be sound, and the electorate needs to have faith in the legitimacy of our election results,” said MHPC Chief Executive Officer Lance Dutson.  “This poll shows that, while Mainers do not think fraud is a critical problem in our state, they do want safeguards to protect against it. Maine people understand that ending same-day registration helps protect the integrity of our system, and that the common-sense measure of requiring photo identification at the polls will help ensure Maine is safe from the kind of fraud and manipulation we see in other states.”

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CLICK HERE to view the top line results of the poll

CLICK HERE to view the full Cross tabs of the poll

The telephone survey of 500 Likely Voters in Maine was conducted by Pulse Opinion Research on September 7, 2011.  Pulse Opinion Research, LLC is an independent public opinion research firm using automated polling methodology and procedures licensed from Rasmussen Reports, LLC.

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For more information, or to schedule an interview, please contact Chris Cinquemani at chris@mainepolicy.org.

Defending Your Rights to Private Property,

Free Speech and Personal Freedom”

MHPC Member: $17 per person, inclusive of tax and gratuity. 
Non-Member: $22

“In the Name of Liberty:

Defending Your Rights to Private Property,

Free Speech and Personal Freedom”

David Crocker, Esq.

Director, Center for Constitutional Government

The Maine Heritage Policy Center

MHPC Member: $17 per person, inclusive of tax and gratuity. 
Non-Member: $22

Introduction

Download the full PDF Report | This report details the legal basis for a constitutional challenge of ObamaCare, as well as the arguments by both proponents and opponents of the legislation, their use of case law and legal precedent, and the status of both lawsuits challenging the constitutionality of some of ObamaCare’s key provisions.

The central issue in both suits is the constitutionality of Section 1501 of the Act, the Minimum Essential Coverage Provision, commonly known as the “Individual Mandate”. The Individual Mandate requires every United States citizen, other than those falling within specified exceptions, to maintain a minimum level of health insurance coverage each month beginning in 2014. Failure to comply will result in a penalty included with the taxpayer’s annual return. As enacted, Section 1501 is administered and enforced as a part of the Internal Revenue Code.

The Individual Mandate is the lynchpin of ObamaCare. Without the ability to compel citizens to purchase insurance, the rest of ObamaCare is rendered largely meaningless. While both suits raise other important claims for consideration (like the nature of the previously-mentioned penalty) these claims are subsidiary to the Individual Mandate.  Congress’ ability to enforce the Individual Mandate depends on the reach of Congress’ commerce power pursuant to Art. I, Sect. 8 of the U.S. Constitution.

The Commerce Power – and Its Limits

The so-called “Commerce Clause” (giving Congress the ability to “regulate commerce . . . among the several states . . .”)[2] is one of the most heavily-interpreted provisions of the Constitution and the justification for federal legislation in areas that seemingly have nothing to do with “interstate commerce”. Beginning during the New Deal era, the U.S. Supreme Court greatly expanded the interpretation of commerce power, allowing Congress to legislate in areas unknown since the country’s founding, with the floodgates being opened wide by the 1942 case of Wickard v. Filburn[3].

In Filburn, the court upheld the federal government’s power under the Agricultural Adjustment Act of 1938 to prevent an Ohio farmer from growing wheat for his own personal consumption, reasoning that because the farmer’s wheat-growing activities reduced the amount of wheat he would buy on the open market, and because wheat was bought and sold nationally, the farmer’s production “affected” interstate commerce. Note that the farmer had no intention of selling his wheat, either locally or across state lines.  Merely abstaining from purchasing wheat on the open market – that is, negative economic activity – was held to affect commerce so as to trigger federal jurisdiction and regulation.For the next 50 years, federal courts found scant reason to deny Congress the power to regulate – even in areas remote from ordinary commerce – and Congress hasn’t been bashful in asserting its control.  For instance, the Civil Rights Act of 1964 was based on the commerce power, as was the 2006 Sex Offender Registration and Notification Act and the 1994 Violence Against Women Act.  In each case, Congress used Filburn’s commerce analysis to justify federal legislation in local matters.

Beginning in the 1990s, however, the Rehnquist Court began to pull Commerce Clause jurisprudence back to a more conventional connection to actual interstate commerce.  In United States v. Lopez[4] the Court struck down a provision of the Gun-Free School Zones Act of 1990, holding that merely possessing a gun near a school is not economic activity that has “substantial effect” on interstate commerce.  According to Chief Justice Rehnquist, previous cases had held that Congress could regulate (a) the channels of interstate commerce, (b) the instrumentalities of interstate commerce or persons or things in interstate commerce and (c) activities that substantially affect or substantially relate to interstate commerce. In the court’s view, the offending provision did none of these things.

In United States v. Morrison[5], the court further clarified the relationship of federal legislation to actual commerce.  The Court held that a key provision of the above-mentioned Violence Against Women Act giving sexual assault victims a private federal remedy, even in instances where no criminal charges are filed, exceeded the limits of commerce power.  Again writing for the majority, Chief Justice Rehnquist stressed that the Constitution conferred onto Congress limited and enumerated powers that Congress clearly exceeded by legislating in areas that had an attenuated effect on commerce. Rehnquist further emphasized that an expansive view of the Commerce Clause must not lead to a blurring of the line between federal and local authority.  In the Morrison court’s view, therefore, the Commerce Clause can only be viewed through the lens of federalism, with distinct limits on federal power.

Does Congress Have the Power to Compel a Purchase?

Both lawsuits challenging the Individual Mandate question whether commerce powers allow Congress to compel citizens to purchase insurance, and whether a citizen’s refusal to make such a mandatory purchase affects interstate commerce.  These are matters of first impression: Congress has never attempted to force citizens universally to purchase a product or service and no court has ruled on whether no economic activity – that is, the refusal to make the required purchase – substantially affects commerce.  On December 13, 2010, Judge Henry Hudson of the Eastern District Court of Virginia fired the first shot by holding that the Individual Mandate was unconstitutional on both grounds.

In his memorandum opinion, Judge Hudson carefully analyzed the arguments of the two parties, the State of Virginia and U.S. Secretary of Health and Human Services Kathleen Sebelius.  The Secretary asserted a traditional analysis based on Wickard v. Filburn, noting that an individual decision to forego insurance coverage is “economic activity” because (a) every person will eventually require medical care and that (b) the “aggregation” of such refusals would affect the ability of the federal government to cover the uninsured and reduce costs for all. Because, in the Secretary’s view, Congress has the power to reform the interstate insurance market,[6] Congress also has the power under the “Necessary and Proper” clause of Art. 1, Sect. 8 to enact the Individual Mandate.

By contrast, Virginia emphasized the central tenet of jurisdiction under the Commerce Clause – economic activity – and distinguished between the voluntary decision to grow wheat in Wickard v. Filburn with the involuntary act of purchasing mandated insurance. Pointing to the Lopez and Morrison cases, Virginia argued that the refusal to purchase insurance is not economic “activity” and cannot be penalized by Congress as a “necessary and proper” enforcement of the Individual Mandate of ObamaCare.

Judge Hudson agreed with Virginia, holding that a refusal to purchase insurance is not economic “activity” for Commerce Clause purposes, even if taken in the aggregate across the country. As the judge observed, “neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market” and that the Individual Mandate is therefore beyond Congress’ “necessary and proper” powers.

The court also invalidated the penalty provision of the Individual Mandate on grounds that the assessment – on an individual’s tax return – was linked to an unconstitutional exercise of commerce power and was not a genuine “tax” as argued by the Secretary.  The “taxing power” arises under the Constitution’s “general welfare” clause of Art. I, Sect. 8[7] and must be reasonably related to the generation of revenue in support of the government.  As the court noted, Congress itself repeatedly referred to the levy as punishment for non-compliance with the Individual Mandate and therefore it could not be construed as a legitimate revenue-raising measure.

While Judge Roger Vinson in the Florida-based lawsuit has not yet issued an opinion, he expressed considerable skepticism about the Individual Mandate in his 65-page opinion denying the federal government’s motion to dismiss most of the AGs’ claims.[8] The smart money says that Vinson will rule the same way as Hudson on the constitutionality of the Individual Mandate and related penalty.[9] Regardless of how these and other suits are decided at the trial level, they’ll make their way to the U.S. Supreme Court for ultimate decision.

Other Theories

While the state AG lawsuits focus on the commerce and taxing power and – obliquely – the Tenth Amendment[10], several private lawsuits[11] assert other possible claims based on more general issues of personal privacy and autonomy.  These possible claims include:

A.                  Medical Autonomy Under the Fifth and Ninth Amendments.  Our rights to medical autonomy – that is, control over our bodies, doctor-patient relationships or medical treatment – are arguably fundamental rights protected by the “liberty guarantees” of the Fifth and Ninth Amendments.  The Fifth Amendment protects life, liberty and property and requires due process of law before we can be deprived of any of them.  The Ninth Amendment provides that we retain all our natural rights, even though they might not be listed in the Constitution.  The Individual Mandate arguably burdens those liberty rights in our intimate and personal relations.

B.                  Privacy Guarantees Under the Fourth, Fifth and Ninth Amendments.  This claim asserts that the compulsory transfer of our medical records to insurers under the Individual Mandate violates our Fifth Amendment property rights and our Fourth Amendment privacy rights.  The Fourth Amendment provides security in our “persons, houses, papers, and effects” against “unreasonable” search and seizures.  The violation occurs when the Individual Mandate forces us to disclose without genuine consent our most private information.

C.                  State Legislative Autonomy.  The Supreme Court has stated that the First Amendment requires legislators be given wide latitude to express their views on policy.[12] Because ObamaCare imposes eligibility and maintenance requirements on states as conditions of receiving further Medicaid funding, and by imposing a variety of other mandates on the states, state legislators’ hands, mouths and ability to vote freely are unconstitutionally burdened by the inexorable pressure exerted by ObamaCare.

D.                 Unconstitutional “Entrenchment”.   The legislative power of Congress does not include the ability to prevent future Congresses from altering or amending legislation enacted by earlier Congresses.  ObamaCare creates a 15-member “Independent Payment Advisory Board” (IPAB) to provide “detailed and specific proposals related to the Medicare program”[13] beginning in 2014, which must include recommendations that will result in the reduction of the per capita rate of growth in Medicare spending.  The statute provides for no rulemaking procedure for the IPAB, expressly prohibits either administrative or judicial review of IPAB proposals and restricts the manner in which Congress can debate, amend or vote on IPAB proposals.

Moreover, once an IPAB proposal is submitted to Congress, it can only go to specific House and Senate committees and should the Congress not act on the proposal, it can become law without approval by Congress or by being signed into law by the president.  Finally, in order to discontinue IPAB, a Congress must pass a joint resolution according to a rigid formula that may not be introduced until 2017 and no later than February 1, 2017, with enactment to take place by August 15, 2017.  Even if enacted, it will not become effective until proposal year 2020.  Taken together, these anti-repeal measures amount to an unconstitutional entrenchment and remove legislative power from Congress and give it to unelected and unaccountable bureaucrats.

State Legislation and the Tenth Amendment

Several states have passed legislation purporting to block the federal government’s ability to legislate in private decisions to seek health care services, which is nowhere enumerated in the Constitution and therefore reserved to the People under the Tenth Amendment.  Under such legislation, state legislatures declare as a matter of federal and state constitutional law and public policy that every citizen has the right to obtain whatever health services he chooses, without penalty or threat of penalty and forbids state officials to collect any such penalty.[14]

This is a classic constitutional confrontation based on a renewed and revived reliance on the Ninth and Tenth Amendments[15], asserting state control in all areas not specifically enumerated in the U.S. Constitution.  Health care is quintessentially a matter for state regulation under the “police power”, the residuum of power retained by the states to regulate in the areas of health, safety, welfare and morals.  Historically, the federal government has never been viewed as having any general police power under the Constitution.  That is a matter for the states’ “general jurisdiction”.

Conclusion

ObamaCare is gravely flawed legislation that violates the Constitution at many levels and coerces the American people in ways unimagined by our Founders, while setting up a constitutional confrontation between the Congress and states and people who refuse to comply. We can only hope that it is repealed promptly, whether by Congress, or the Courts.

[2] Article I, Section 8.  This same section also gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution” the Congress’ enumerated powers, which include the commerce power. This is known as the “Necessary and Proper Clause”.

[3] 317 U.S. 111 (1942)

[4] 514 U.S. 549 (1995)

[5] 529 U.S. 598 (2000)

[6] A dangerous assumption, according to Randy Barnett of Georgetown University Law Center, who believes that the insurance market is not “commerce” as generally understood by the Founders or the courts before the New Deal era. See Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional (available for download at http://ssrn.com/abstract=1680392).

[7] “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

[8] Florida ex rel. McCollum v. U.S. Dept of Health and Human Services, 716 F.Supp.2d 1120 (N.D. Fla. 2010)

[9] In footnote 11 of his opinion in the Virginia case, Judge Hudson blows Judge Vinson a judicial kiss, stating that Vinson “perceptively notes that the [penalty] provision fails to mention any revenue generating purposes”.

[10] The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

[11] Among these is Coons, et al. v. Geithner, et al. 10-cv-1714 in the District of Arizona.

[12] Bond v. Floyd, 385 U.S. 116, 135-36 (1966)

[13] 42 U.S.C. § 1395kkk(a)

[14] See, e.g. Arizona (Ariz.Rev.Stat.Ann. § 36-1301 (2010)); Virginia (Virginia Code § 38.2-3430.1:1 (2010)).  Rep. Richard Cebra recentlyintroduced ia bill to adopt a similar statutory provision in Maine (LR 67 “An Act Regarding the Federal Patient Protection and Affordable Care Act”).

[15] Note that the same New Deal Supreme Court that expanded the reach of the Commerce Clause also dismissed the applicability of the Tenth Amendment, referring to it as a “truism”. United States v. Darby Lumber Co., 312 U.S. 100, 123 (1941) (“The amendment states but a truism that all is retained which has not been surrendered.  There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”)

(photo from Flickr by kjd)

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The Maine Clean Elections Act, passed in 1995, provides taxpayer funding for Maine legislative and gubernatorial candidates who agree to limit how much money they raise and spend on their political campaigns. Under the Act, participating legislative candidates receive between $500 and $19,000 in initial funding, plus additional so-called “matching funds” of up to $38,000 if they are outspent by their opponent and/or independent groups.

In other words, for every private dollar spent in support of a traditionally funded candidate or in opposition to his or her “clean” opponent, the “clean” candidate receives an equal amount in taxpayer-funded matching funds to spend freely on their own campaign.

The plaintiffs, State Representative Andre Cushing and former State Representative Harold Clough, have argued that the matching funds scheme is an abuse of free speech rights guaranteed in the United States Constitution. The two plaintiffs brought suit in August challenging the constitutionality of matching funds. Judge Singal denied the plaintiffs’ motion to stop the use of matching funds during the 2010 election.

Based on recent federal court rulings in Arizona, Connecticut and Florida, The Maine Heritage Policy Center, local counsel for the two plaintiffs, was confident the federal courts would rule on the side of free speech and overturn the unconstitutional matching funds provision in its appeal decision.

“Under the guise of leveling the playing field, Maine’s so-called matching funds severely limit the free speech rights traditionally funded candidates and their supporters were once guaranteed,” said David Crocker, director of MHPC’s Center for Constitutional Government. “Such a scheme undermines the fundamental principles of democratic elections, and we are confident the First Circuit Court of Appeals will recognize and overturn this unconstitutional abuse of First Amendment rights.”

James Bopp, Jr., General Counsel for the James Madison Center for Free Speech, and the plaintiffs’ lead counsel in this case, agreed.

“Under this system, simply running an ad against a candidate can result in that candidate getting more taxpayer money. Candidates who don’t use taxpayer funding for their own elections shouldn’t be forced to effectively fund their opponents with public dollars.”

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Over the past two summers Rand has used his family’s golf cart to provide a free transportation service on Peaks Island. Because he did not charge a regular fare, he was not subject to the same licensing provisions that apply to regular taxis. Under the recently adopted changes, however, any person providing such a service and receiving any compensation – even tips -will be required to obtain a taxi license and obtain carrier insurance. Although Mr. Rand cleared his service with the city in 2008, shortly after Mr. Rand began offering rides on the island in June 2009 a non-profit corporation called the “Island Transportation System” started operating, thanks to a $20,000 subsidy from the City of Portland. Mr. Rand’s operation was popular, and flourished, with many customers giving him tips for his work, while the city’s own taxi service struggled to stay afloat.

Mr. Rand was pressured by employees of the competing taxi service, as well by local police, to give up the business. Mr. Rand didn’t back down.

The Portland City Council saw Mr. Rand’s service as a threat to their own, government-subsidized operation, and as their taxi service struggled to stay afloat, they decided to take further steps to remove an unwanted competitor. After complaints from Island Transportation System and the Peaks Island Council, they voted 5-3 to require that people like Mr. Rand must be licensed if they accept compensation of any kind – even tips.

This act by the Portland City Council will effectively shut down Mr. Rand’s ride service, even though his golf cart is inspected and insured, and even though he does not charge riders.

“Last week the Portland City Council told me, a nineteen-year-old entrepreneur working to raise money for college, to get out. They didn’t want the competition. This action by the Portland City Council was wrong,” said Mr. Rand. “I was born and raised in Maine and would like to return after college to run a business in Maine. However, if this is the way government in Maine will operate, I, along with other entrepreneurs like me, may want to reconsider.”

Mr. Rand is being represented by David Crocker of The Maine Heritage Policy Center, which will initiate litigation if the Portland City Council does not rescind this anti-competitive measure.

“Besides providing Matt with an unpleasant civics lesson, the City of Portland has violated his constitutional right to make an honest living.” Crocker said. “The City’s action in changing the taxi ordinance had nothing to do with public safety and everything to do with destroying a competitor to its subsidized service.”

Tarren Bragdon summed up the motivation for the potential lawsuit.

“The Portland City Council is redefining the rules to say if they can’t win then they will cheat. The Portland City Council is saying to young people and young entrepreneurs ‘Get out.’ Finally, the Portland City Council is squandering $20,000 in taxpayer money just to prevent a young kid from competing with their pork project. Matthew Rand has a constitutional right to earning a living…even in Portland. We will fight to protect that right.”

For more information and to see a timeline, please visit David Crocker’s post online at The Maine Heritage Policy Center’s blog, MaineFreedomForum.com.

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In response, this report will shed light on a few of the major flaws in the tax reform bill using a simple “Myth-Fact” presentation.   Overall, too many flaws have been discovered in this tax reform bill to allow it to become law.  Rather than subject Maine taxpayers—both individuals and businesses—to the pains of learning and adjusting to a radically altered tax code with few real economic benefits; it would be best to simply scrap it and start over.

MYTH:  Tax Reform will lower the tax burden on Mainers.

FACT:  The tax reform bill is actually a small, net tax increase on Mainers.  The idea of “exporting” taxes to tourists is more hope than reality.

All of the tax reductions in LD 1495 come from an extremely strong assumption that businesses will simply pass the cost of the higher sales tax onto tourists or other folks from away.  For businesses to pass on the cost, they will have to raise prices.  Of course, this begs the question that if they can raise prices to offset the higher sales tax then why didn’t they raise prices before?  Put simply, businesses couldn’t raise prices before and they won’t be able to raise prices to offset the higher sales tax.  As a result, it will be business owners and their employees who ultimately bear the burden of higher sales taxes—Mainers in other words.

Yet, don’t just take out word for it.  Consider this statement from the Brooking Institution’s nationally recognized tax expert Dr. William G. Gale, and Dr. Kim Reuben of the Urban Institute:

“Tax exporting occurs when state and local governments impose tax burdens on non-locals.  This cannot be directly because of the interstate commerce clause in the Constitution . . . Viewed from the perspective of effective tax policy, taxes on narrowly defined goods whose benefits are not connected to the payer of the tax, remain both inefficient and inequitable.  Broadly speaking, tax exporting is a ‘beggar thy neighbor’ policy; all localities would be better off in the absence of such policies.” [1] [emphasis added]

MYTH:  The income tax rate will fall to 6.5 percent from 8.5 percent. 

FACT:  The advertised 6.5 percent income tax rate is an illusion.  The 1.5 percent phase-out of the new household tax credit means most Mainers will pay at an 8 percent rate, not 6.5 percent.

Under LD 1495, the household tax credit takes the place of the current deductions and exemptions.  For a family of four, the total household credit is worth $2,200 ($1,200 as a married filing jointly taxpayer and another $250 per person).  This means that this household will pay no income taxes until their tax liability exceeds the $2,200 household credit—which occurs around $34,000 of income.

Unfortunately, the household tax credit phase-out reduces the credit by $15 for every additional $1,000 earned (a 1.5 percent rate) over $55,000 (for a married, filing jointly taxpayer).  As a result, if the household earns another $1,000 (to $56,000), they will pay an additional $65 in taxes (6.5 percent of $1,000) and lose $15 of their $2,200 household tax credit (now worth $2,185).  Combined, this amounts to an increase in their tax liability of $80 equaling an Effective Marginal Tax Rate (EMTR) of 8 percent ($80 divided by $1,000).  The 8 percent EMTR nearly wipes out the income tax benefits of LD 1495 for many Mainers .

Additionally, a 0.35 percent tax surcharge exists on income earned over $250,000 which further undermines the so-called 6.5 percent flat tax rate.

 MYTH:  A lower income tax is worth the price of higher sales tax.

 FACT:  The sales tax is a small business and jobs killer.  Maine needs lower overall taxes, not a gimmicky shift of one tax into another.

 A recent report by the Council on State Taxation had this to say about Maine’s current tax structure prior to the tax reform bill to increase sales tax collections:

“Origin based taxes, such as the property tax and sales tax on business input purchases, which are more important in businesses’ location decisions than destination-based taxes, vary significantly as a share of total business tax.  Arizona, Maine, Michigan, South Dakota and Washington generate more than 70 percent of business taxes from the sales and property taxes, resulting in significant taxes on business capital located in the state.” [3]

The sales tax is particularly damaging because taxing business input purchases leads to “tax pyramiding” which is paying a tax on a tax.  For example, suppose a baker purchases flour to make bread and pays sales taxes on the flour.  The baker then prices the bread which includes the added cost of the sales tax.  A customer then buys the bread and pays the sales tax again.  The end result is that the customer has paid a tax on a tax since the price of the bread included the sales tax paid on the flour.

However, as noted previously, it is doubtful that the baker would in fact be able to pass the higher costs onto the customer.  Instead, he may have to reduce staff or cut their pay.  For the economy as a whole, this would mean fewer jobs or lower pay as a result of applying the sales tax to business inputs.

Additionally, businesses will have to contend with higher sales tax compliance costs.  A previous study found that Maine businesses will spent 9.34 cents in sales tax compliance costs for every dollar in sales taxes collected.[4]  The reason for such a high compliance cost is because Maine’s economy is dominated by small businesses who are the least capable of dealing with such costs.

MYTH:  LD 1495’s limitation of the “household credit” to Maine residents passes constitutional muster.

FACT:  This limitation violates the United States Constitution on several counts.  If challenged in court, it would be struck down in whole or in part.  Here’s why:

Commerce Clause

The Commerce Clause of the United States Constitution gives Congress the exclusive power to regulate commerce among the states. At the same time, states are prohibited from enacting laws that impose undue burdens on interstate commerce.  The United States Supreme Court has labeled State laws that burden interstate commerce by giving local, in-state entities an explicit advantage “virtually per se invalid.” LD 1495 impermissibly burdens interstate commerce by limiting the household credit to Maine residents and thereby creating a tax penalty for out-of-state employees who earn a living in Maine.  Because the benefit of the credit is limited to Maine residents, a court would strike down the law as unconstitutional.

Privileges and Immunities Clause

Also found in the United States Constitution, the Privileges and Immunities Clause generally prohibits a state from denying to non-residents the same benefits it provides to its similarly-situated residents. This provision precludes a state from imposing higher tax rates or taxes on non-residents than it imposes on residents. For example, in the 1970s, New Hampshire imposed an income tax on out-of-staters who commuted to work in New Hampshire. By contrast, New Hampshire imposed no income tax on its own residents. A Maine resident working in New Hampshire challenged the tax and the United States Supreme Court ruled that it denied non-residents the “substantial equality” required by the Privileges and Immunities Clause.  The effect of New Hampshire’s “commuter tax” on non-residents is very similar to the effect of Maine’s household credit and it is therefore likely that a court would give LD 1495 short shrift as well.  

Equal Protection Clause

This clause of the United States Constitution prohibits a state from denying a class of people “the equal protection of the law.” Although courts give states much leeway in creating tax classifications, courts pay less heed when individual rights are infringed. For example, in 1982, the Supreme Court used equal protection analysis to review an Alaska statute that paid tax rebates to residents based on their length of residency. The Court invalidated the residency requirement, recognizing that the right to travel, “when applied to residency requirements, protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents.” Maine’s new law similarly disadvantages taxpayers who move or return to Maine by preventing them from using the household credit during the first tax year of their residency. A court would strike down the law as an infringement on the fundamental right to travel.

 MYTH:  It is permissible to amend LD 1495 while suspended prior to the People’s Veto vote on June 8th.

 FACT:  On April 8, 2010, Governor Baldacci signed into law LD 1830, which – if the People’s Veto is unsuccessful – will extend the implementation dates contained in LD 1495 for one year, thereby offsetting the delay imposed by the People’s Veto.  The only problem with LD 1830 is that any modification of a “suspended” bill was strictly forbidden by the Maine Supreme Judicial Court in a 1933 opinion.  In the 1933 opinion, the justices stated that :

 “After the referendum has been invoked and until the voters have acted thereunder, the subject-matter of the referred bill is withdrawn from further consideration of the Legislature. It can neither amend nor repeal the act during that period.” 

 By enacting LD 1830, the Legislature has openly – and knowingly – violated the Maine Constitution.

MYTH:  We should ignore the Constitution because tax reform is good policy.

FACT:  Whether one thinks that LD 1495 and LD 1830 are good policy is constitutionally irrelevant.  It is fundamentally disrespectful of democratic institutions to enact a scheme that violates both the Maine and Federal Constitutions.  It should and must be changed to conform to both. We are – or should be – a nation of laws, not men.

 Notes and Sources:

 [1] Gale, William G. and Reuben, Kim, “Taken for a Ride: Economic Effects of Car Rental Excise Taxes,” report prepared for Enterprise Rent-A-Car.

[2] For more information on calculating the effective marginal tax rate see: J. Scott Moody, “LD 1495: Frankenstein Tax Reform,” The Maine Heritage Policy Center, The Maine View, Vol. 7, Issue No. 2, July 7, 2009.  http://www.mainepolicy.org/resources/media/179_1998560130.pdf

[3] Cline, Robert; Phillips, Andrew; Neubig, Thomas and Thayne, Julia, “Total State and Local Business Taxes: State-by-state estimates for fiscal year 2009,” Council on State Taxation, March 2010.

[4] J. Scott Moody, “The Sales Tax Compliance Burden,” The Maine Heritage Policy Center, Maine Issue Brief, No. 13, May 18, 2007.  http://www.mainepolicy.org/resources/media/152_539966669.pdf

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