On Whose Authority?: When Popular Referendum Shapes a Governor's Power to Act

Photo Credit: Shawn Patrick Ouellette, Portland Press Herald (Maine)

Commentary | November 27, 2017

by Anthony J. Gray

It is undoubtedly the role of our elected officials to represent the interests of constituents, but that duty does have limits. What those limits are, however, can raise some pressing ethical questions. There is certainly not a unilateral obligation to do whatever the majority may desire—the exercise of independent judgment is fundamental to a representative democracy.

But what if the electorate expresses that preference as a referendum? If an elected official disagrees, can they simply choose to disregard the public’s will? That’s precisely the question currently playing out in Maine, where Governor Paul LePage is declining to implement a referendum on expanding Medicaid under the Affordable Care Act.

Under Maine’s Ballot Question 2, the Medicaid Expansion Initiative, about 80,000 additional people would become eligible for Medicaid benefits, as the program would be expanded to include any citizen making up to 138 percent of the federal poverty guidelines. Proponents of the program argue it would help rural hospitals, create jobs, and provide care for vulnerable populations just above the poverty line.

Governor LePage disagrees, and has said his “administration will not implement Medicaid expansion until it has been fully funded by the Legislature at the levels DHHS [the Department of Health and Human Services] has calculated, and [he] will not support increasing taxes on Maine families, raiding the rainy-day fund or reducing services to our elderly or disabled.” However, voters had those potential costs in mind when voting. This would seem to indicate, then, that his opposition could be based on something else.

After all, this is not the first time Governor LePage has opposed allowing people with slightly higher income levels to access Medicaid. He has vetoed five similar bipartisan bills, passed by the state legislature. This struggle between branches is what led to the referendum—since the legislature had one view, and the governor another, the will of the people seems to serve as a kind of tiebreaker. Even so, the governor seems unwilling to accept the result.

Which raises the question: if the public votes, via referendum, for something the governor opposes, should the executive respect the will of the people, or can his judgment unilaterally overrule the public’s vote?

As a matter of law, if not of ethics, a governor may not prevent the legislature from taking action once the public has passed a referendum. Granted, a distinction exists between affirmatively preventing expansion and hampering it with impossible contingencies. Deciding where that line is drawn, however, falls to judges, not to ethicists.

Our question is not whether his decision is legal, but whether it is right.

Certainly, governors should ensure that any legislation they approve meets a certain standard. This is the reasoning behind the veto power. But, crucially, a governor has no power to veto a referendum in Maine. The veto was designed to allow the executive branch to act as a check on the legislative, not on the unambiguously expressed will of the people. Governor LePage was not shy about his position in the time leading up to the vote. Once that choice was made, however, it must be respected. To override it would be to tell voters that, even when their views are expressed at the ballot box, the Governor’s opinion supersedes them.

Our democratic processes are specifically designed to avoid this. Once the referendum has been approved, any potential economic issues become secondary. Governor LePage’s constituents have spoken: the people of Maine voted to expand Medicaid, which means the task now before the executive and legislative branches is not merely to inform them of potentially negative impacts, but rather to work to mitigate any such impacts.

Living with the consequences of your vote, even when that means bearing some additional financial burden, is part of a democratic society. Not giving citizens that choice would eviscerate the sanctity of voting itself. Accordingly, Governor LePage may continue registering his objections, but should allow his state’s policy to be shaped by the will of the people.