Secretary of State’s Missed Deadline Postpones Welcome Back Tax Lawsuit


In September, I wrote about the unconstitutional Welcome Back Tax that was tucked into LD 1495, the latest installment of the Legislature’s perpetual saga of broken promises of real tax relief for Maine taxpayers.  At that time, we at the Center for Constitutional Law had also announced our intent to file a lawsuit seeking to have the courts strike down this illegal new tax.  The issue for us then was the timing of the lawsuit.

By the time of our announcement, a people’s veto effort was well underway, collecting tens of thousands of signatures for a petition to give the voters a chance to repeal the new tax law.  If they collected enough signatures to put it on the ballot, then the law would not go into effect before the voters had a chance to vote on it next June.  Under that scenario, we wouldn’t be able to go to court until after the vote, and then only if the voters did not vote to repeal it.  If, however, they did not collect enough signatures to put it on the ballot, then we could file our lawsuit right away.

According to state law, the Secretary of State has 30 days from the filing deadline to determine whether the petition is valid.  Because of a weekend and the Columbus Day holiday, the Secretary of State’s deadline was Tuesday, October 13, 2009.  That was the day we were waiting for, to see if we would be filing our lawsuit right away.

Well, October 13 came and went with no decision by the Secretary of State.  As of today–three weeks later–there is still no decision by the Secretary of State.  The delay has prompted the petitioners leading the people’s veto effort to go to court seeking a court order that the people’s veto be put on the June ballot.

What does all this mean for our legal challenge to the unconstitutional Welcome Back Tax?  It looks like we won’t be going to court anytime soon.  The Maine Constitution does not require the Secretary of State to validate the people’s veto petition before it can be voted on.  The Maine Constitution requires the petition to be voted on unless it is determined to be invalid by a procedure enacted by the Legislature.  The procedure enacted by the Legislature gave the Secretary of State until October 13, 2009, to invalidate this petition, which he did not do.  The next step is a vote by the people.  Before we can get to it, the Welcome Back Tax will have to get by the voters in June.  If it does, we will go to court and see how it holds up against the constitution.