Article: Maine Legislature rebukes Courts, Democratic Party

In a sharp rebuke of both the Maine Supreme Court and the Maine Democratic Party, the Maine Legislature - even though it is controlled by Democrats - has amended state election law to clarify and reassert its intent that an entire candidate nomination petition should not be voided simply because the circulator of the petition may have made a mistake involving one signer.

But at the same time, the Legislature agreed to a new legal definition of what it means to be the circulator, or "witness" of a nomination petition, thus codifying a new definition that the Maine Democratic Party convinced the Secretary of State to adopt and impose against only one candidate in an after-the-fact ruling last summer prior to the November elections. It was acceptance of that alternate - and never-before-used - definition that ultimately led to the case coming before the Maine Supreme Court.

In passing LD 1169, "An Act To Amend the Election Laws," the Legislature also put in place several new regulations to correct actions taken by the Secretary of State during the November elections which resulted in some write-in votes not being properly counted by local election officials - or if they were counted - not being reported to the Secretary of State. Some of those law changes were recommended by the Secretary of State's office.

"I think staff in the Secretary of State's office recognized that they made a number of mistakes last year, and to their credit went to the Legislature to make sure that future staffs didn't repeat most of them," said Herbert Hoffman of Ogunquit, whose campaign for U.S. Senate was at the center of the legal actions last summer.

As a result of the new law, Hoffman remains the only candidate in Maine history to have lost his place on the ballot through an after-the-fact rules change taken against him by the Secretary of State and the Maine Supreme Court.

"Along with the process changes," Hoffman said, "the Secretary of State also wanted the Legislature to provide cover for his going along with the Democratic Party which resulted in changing the rules in the middle of the game. The Democrats in the Legislature did that as well, although they also made sure that the new rule would never be used against one of their own in the future the way they used the rule against me."

"Given that the Senate chair of the legislative committee overseeing LD 1169 that is the mother of the man who coordinated the entire Democratic Party campaign operations last year, I'm not surprised by the way things turned out," Hoffman quipped.

As an independent candidate for United States Senate who secured ballot access after he collected more than 4,000 nomination signatures, Hoffman became the target of a Democratic Party effort to remove his name from the ballot because the Democrats didn't want any competition for Democratic Party candidate Thomas Allen, who eventually lost anyway to the popular Republican incumbent Susan Collins. It was the action by the Democratic Party that eventually led to the Maine Supreme Court's faulty - and Hoffman argues unconstitutional -- interpretation of law.

After losing his spot on the ballot, Hoffman was forced to run as a write-in candidate. He followed state law to become a "declared" write-in candidate. Following the November election he was contacted by a number of people who said they had written in his name but their votes were never counted. The reports included cases where an absentee voter videotaped himself marking his ballot, but no write-in votes were reported in his city, as well as a case where an election clerk saw Hoffman votes during the counting of paper ballots but the town clerk never reported them to the Secretary of State.

Several of the provisions in LD 1169 were originally proposed by Hoffman and included in a bill sponsored by Sen. Peter Bowman. The Legislature's Legal and Veterans Affairs Committee killed Bowman's bill, but included in its new bill those items from Bowman's bill with which the Secretary of State agreed.

In June of 2008, Hoffman had been certified as a ballot candidate after filing petitions containing 4,112 signatures. Maine Democratic Party Chairman John Knutson - with the support and financial backing of the Democratic Party - challenged the petitions in a hearing before the Secretary of State. After duplicates and some illegible signatures were eliminated, the Secretary of State ruled Hoffman still had 4,041 valid signatures, and his name remained on the ballot.

The Democrats countered by presenting three witnesses - including Democratic State Representative Herbert Adams of Portland - who testified that while each willingly signed a Hoffman petition, they did not recall Hoffman, who was the designated circulator of those three petitions, observing them as they signed their names. Hoffman testified that in each case he was at the location, present and aware when those petitions were being signed, even if he did not actually observe the signer putting pen to paper, and that he was always in compliance with the generally accepted practice for circulating nomination petitions, as the definition of "presence" had always been interpreted in petition cases.

But the Democratic Party then argued the Secretary of State should adopt a new, stricter, definition of the term "presence," a definition that demanded the circulator actually see the signer's pen writing on the petition form. It then demanded that because these three witnesses said they did not see Hoffman watching them as they signed that the three petitions be thrown out. In total, the three petitions held enough signatures to drop Hoffman below the 4,000-signature threshold and thus remove his name from the ballot.

In a series of bizarre rulings that followed, the Secretary of State accepted the Democratic Party's definition of "in the presence of" to be equivalent to "witness" and applied it after-the-fact to the Hoffman petitions, ignoring the fact that to do so constituted a violation of Hoffman's ex-post-facto rights under the U.S. Constitution. Then the Secretary of State ruled that even though there was no evidence that Hoffman had not observed the three signatures being applied to the petition (the only testimony offered was that the three signers - two of whom testified they didn't even know what Hoffman looked like at the time - did not see Hoffman watching them sign. None of them could testify definitively that Hoffman did not see them sign) that these three signatures should be stricken from the petitions, even though all three agreed they had willingly signed and none of them asked that their signatures be stricken. (In fact, state law prohibits the Secretary of State from striking a valid petition signature after the petition has been turned in.)

The Secretary of State refused, however, to invalidate the entire petitions as the Democratic Party demanded. Thus Hoffman remained on the ballot with 4,037 valid signatures.

The Democratic Party appealed to the courts. The Superior Court denied the Democrats' plea that the petitions be invalidated, but in July of 2008 the more politically-minded Maine Supreme Court accepted the Democratic Party's arguments that the entire petition should be rejected, and ordered Hoffman's name removed from the ballot.

Hoffman asked U.S. Supreme Court Justice David Souter to intervene on constitutional grounds. The Secretary of State and Maine Attorney General, in a briefing before that court, joined Hoffman in declaring that Maine's highest court had construed the law in a manner that was plainly violative of the First Amendment. However, Souter declined to hear the case.

John Branson, the Portland attorney who represented Hoffman during the campaign, praised the Legislature's actions.

"In enacting changes to the law governing the circulation of nominating petitions, the Legislature has corrected the gross distortion of legislative intent reflected in the Maine Supreme Court's July 2008 decision in the Hoffman case," Branson said.

Branson said it was apparently clear to everyone but the Democrats and the Supreme Court that "if the circulator's oath required by Maine law is made honestly and in good faith without any knowingly false statement - as it was in Mr. Hoffman's case - the Legislature never intended the mandatory invalidation of whole petitions based on a single improperly witnessed signature."

"Statutes such as this one - that serve as a gatekeeper for citizen access to the political and electoral process - should always be interpreted in a manner that avoids infringement on the constitutional speech and association rights," Branson said. "When a court favors a statutory interpretation that tramples on those constitutional rights over one that more consistently reflects the Legislature's respect for such rights, it is entirely proper for the Legislature to clarify the law so as to guard against judicial distortion of legislative intent in the future."

Branson added, "Regardless of whether Mr. Hoffman himself ever chooses to run again as a candidate for political office, he is content in knowing that other candidates will not be subject to the same brand of partisan sabotage that threw him off the ballot, and that - if they are - the law has been clarified to prevent judicial sanction of such sabotage."

Indeed, Secretary of State Matt Dunlap had commented following the Maine Supreme Court ruling that the results flew in the face of the way candidate petitioning has traditionally been carried out in Maine, saying it was likely that had the same standards been applied to many Democratic candidates it's possible some petitions circulated at the chaotic Democratic presidential caucuses in February of 2008 would have been rejected.

An investigation by the Hoffman campaign into the petitions filed by Democratic Senate candidate Allen, for instance, showed that the Secretary of State accepted 132 petitions containing 2,931 signatures on behalf of Allen. (Party candidates only need 2,000 signatures, not the 4,000 required of non-party candidates.)

Of those 2,931 signatures, 97.5 percent were dated Feb. 10, 2008, the date of the Democratic Party's caucuses. And of those 132 accepted nominating petitions, 79 of them were circulated by people listed as caucus conveners in their towns, who most likely were not watching as everyone signed the petitions because they were conducting the caucus at the time many people were signing petitions. Those 79 petitions circulated by caucus conveners contained 1,438 signatures, almost half of Tom Allen's total petition signatures.

(In the course of its investigation, the Hoffman campaign learned that in fact Allen's campaign filed 134 nominating petitions, which contained 3,024 voter signatures validated by town and city clerks. State law says major party U.S. Senate candidates must file signatures of "at least 2,000 and not more than 3,000 voters," so Allen's filing put him outside the letter of the law at the start. That fact alone could have been cause to reject his filing. However the Secretary of State - for unspecified reasons - marked two of the petition forms Allen submitted as "rejected." Those two petitions contained 93 validated signatures. Removing them dropped Allen's signature count down to the 2,931, putting him back within the legal limit.)

David Bright of Dixmont is a long-time Democratic activist who supported Hoffman over Allen in this race because many of Hoffman's positions - such as war funding, single-payer health care and marriage equality - were closer to the Democratic Party platform than were Allen's. Bright closely followed the Hoffman case as it worked through the various legal channels.

"There is more than ample case law on this subject," Bright said, "and indeed courts have an obligation, under that existing case law, to interpret cases such as the Hoffman case in a manner that not only avoids infringement on the constitutional speech and association rights, but whenever possible to apply definitions and rulings that favor protection of constitutional rights. Not only did the Maine Supreme Court clearly misconstrue legislative intent in this case, it ignored legal precedent as well as precedent set by the Secretary of State in previous rulings."

"At the same time," Bright added, "it became clear to everyone involved that the results of the Democratic Party's actions constituted a clear and present danger to the future of the candidate petitioning process as it had been understood and applied for many years. With the Democratic Party's position endorsed by the Maine Supreme Court, and with the federal courts refusing to even consider the constitutional implications of this case, there existed serious potential for monkey-wrenching future petition drives."

"Previously, if you wanted to prevent a valid petition from being considered you had to steal it," Bright said, "but under the Democratic Party's concept, all you had to do was shout 'look, there's Elvis,' and then quickly sign the petition as the circulator looked away. The party's logic was not only bogus but was dangerous."

Bright believes Democratic Party operatives knew going in what they were doing, and knew that its own collection procedures for Allen would also have failed under the new rules. But the party also knew it was safe from scrutiny because by the time it convinced the Secretary of State to apply the new definition during the challenge to Hoffman's petitions, the challenge period for party candidate petitions had expired.

"This was clearly a 'do as I say not as I do' situation," Bright said, adding he believes the Democratic Party had two reasons for its actions.

"The surface reason was because of some convoluted reasoning that Tom Allen couldn't compete in a three-way election where there was a candidate with more progressive values and positions that Tom holds. I didn't agree with that - in fact I thought Hoffman's candidacy actually would have helped Tom because it would have moved him away from a centrist position that Sen. Collins clearly controlled. But I think the real issue was the fact that the national party's Democratic Senatorial Campaign Committee was funding the vast majority of the state party's campaign operation - at least the part that the Obama campaign wouldn't eventually fund - and the Democratic Party desperately needed to keep that cash flowing in. So it was willing to do anything it could that would even remotely increase the perception that Allen stood a good chance to win this election. It may have been an understandable - but unethical - short-term tactic on the part of the Democratic Party, but it enabled long-term damage to our system of democracy. It wasn't good government and it wasn't good policy. It cost the Democratic Party a lot of money that could have been used for local campaigns, it seriously damaged the credibility and ethical reputation of the Democratic Party, and, as it turned out, was completely unnecessary based on the election results. In fact, it would not surprise me if the Democratic Party's actions in this matter earned more additional votes for Collins than they did for Allen."

"I'm guessing there was a lot of back-room chatter and that the party didn't go down this slimy slope without assurances that the damage it was about to do to our electoral system would somehow be undone after the 2008 senate race was over," Bright said. "An enterprising reporter who took the time to go after all the emails that were likely flying around between the offices of the Secretary of State, Attorney General and the Maine Democratic Party might find out just how thin an ethical framework existed. I don't believe for a minute that the Democratic Party was so blind that it couldn't see what a long-term mess it was creating in the cause of winning just one election cycle. Party leaders had to have some assurances that this thing wouldn't come back to bite them next cycle."

"Instead of telling the Secretary of State he made a mistake in listening to the Democratic Party lawyers, and clarifying the presence requirement that has been in place for years, and that everyone understood (including the Democrats even if they won't admit it in public), the Legislature chose to cover the Secretary's butt by accepting this bogus definition," Bright said, "And no one - least of all the federal courts - seems to give a damn about the Constitutional issues that were raised by the after-the-fact application of this new rule against only one candidate."

"The Legislature has cleaned up their mess by passing this bill and reasserting its intent in dealing with when a petition is to be voided, so for the time being the process is safe. But that does not excuse the unethical behavior of the Maine Democratic Party in this case," Bright said.

For his part, Hoffman said he was "pleased to learn that the Legislature took this opportunity to clarify its intent with regard to the validity of signatures collected in an honest manner."

"My integrity was never in question during the several challenges brought by the Maine Democratic Party," Hoffman said, "however the actions of the Maine Supreme Court in siding with the Democrats resulted not only in my being removed from the ballot, it also invalidated the intent of over 4000 registered voters to have me on the ballot in November. My deepest regret is that these 4000 plus voters, and all voters in Maine, were denied the opportunity to have a full debate on issues that I would have brought to the table. Though I continued to run as a declared write-in candidate, I was denied a seat on the debate platform and my campaign was largely ignored by the media. The voters of Maine deserved better than this. Hopefully this action by the Legislature will prevent this from happening in the future. My thanks to Sen. Bowman (D-Kittery) and the others who worked to see this bill passed."