Maine justices to decide fate of transgender sports ballot question

Maine’s highest court weighed Wednesday whether the state can reject petition signatures collected by out-of-state circulators who did not check a box consenting to Maine’s jurisdiction, a legal dispute that could determine whether Mainers vote on transgender inclusion in sports this November.

The group called “Protect Girls Sports” initially submitted enough signatures to qualify for the ballot, proposing an initiative that would restrict what school sports teams, bathrooms and facilities trans students can access. Secretary of State Shenna Bellows later determined that the campaign had failed to qualify, after thousands of signatures were invalidated. That ruling was upheld by a Superior Court judge in June and the campaign appealed that decision to the Supreme Judicial Court. 

More than 1,500 of the invalidated signatures were collected by four out-of-state circulators who had not checked a box on the form agreeing to Maine’s jurisdiction. The Maine Supreme Judicial Court must now decide whether those signatures were properly invalidated. The initiative is short 500 signatures to qualify. 

The Maine Constitution prohibits out-of-state circulators from submitting petitions, but that ban was declared unenforceable by a federal appeals court in 2022, since it likely violated the First Amendment of the U.S. Constitution. In response to a lawsuit, Maine then entered into a consent agreement, which all citizen-led initiatives still rely on to hire out-of-state circulators to collect signatures. However, they must consent to the state’s jurisdiction. 

Attorney Tim Woodcock, who represented Protect Girls Sports, argued that out-of-state circulators should be treated the same as Maine residents who collect petition signatures, since the consent agreement requires the state to allow them to work on campaigns. Woodcock said the consequences of not reversing the ruling would be dire.

“If this is upheld, it’s essentially a petition that has been pulled off the ballot with 1,520 otherwise valid ballot signatures,” Woodcock said in the Augusta courtroom. “That would be a remarkable result of these circumstances.”

The same argument was made after the May hearing before the Secretary of State’s Office as well as before the Superior Court, but neither accepted it. 

Protect Girls Sports has not pushed back on any other findings showing a pattern of negligence in the signature collecting process, with circulators leaving forms unattended, adding ditto signs on some columns, and other infractions. Rather, Woodcock challenged the secretary’s authority to impose what he said was an unfair burden on out-of-state signature collectors by requiring them to check an additional box to consent to Maine’s jurisdiction. 

Attorney Christopher Dodge from Elias Law Group, the national law firm representing the three Maine residents who initially challenged the petition signatures, said, “We are here today because Protect Girls Sports has essentially reached the bottom of the barrel for its last few arguments to try and dislodge the secretary’s well-reasoned and well-supported findings.” 

“And each of those arguments basically concedes that the initiative violated … Maine law.”

Since the vast majority of the 120 out-of-state circulators complied with the requirements, Dodge said Woodcock could not make a convincing case that the rules were a burden.

“The burden here is they have to complete the circulator affidavit … and they have to check the box, that’s it,” he said. “And most of the non-resident circulators have absolutely no problem complying with it.”

One circulator, Cairo, had initially left the box blank but later checked the box through a corrected affidavit in May, three months after the petition was submitted for validation. Woodcock has previously argued that her signatures should be considered valid because of her corrected form. 

However, her decision to intentionally leave the box blank was a “substantive lack of agreement” to Maine’s jurisdiction, Superior Court Justice Deborah Cashman said in her opinion validating Bellows’ decision on June 11.

Woodcock said in court Wednesday that the “consent agreement says nothing in it about when an out-of-state circulator must consent to jurisdiction,” and that those rules were being imposed by the Secretary of State’s office. 

The Supreme Judicial Court is expected to rule on the appeal before mid-August, before the deadline for the secretary’s office to put a question on the ballot. 

This story was first published by Maine Morning Star and is republished here under Creative Commons license CC BY-NC-ND 4.0.