Trans ballot referendum group argues signature validity before Maine Supreme Court

The fate of a ballot question that would bar transgender athletes from girls' and women's school sports in Maine now rests with the state's highest court, which heard oral arguments Wednesday on whether the referendum can appear on the November ballot.

The proposed referendum, sponsored by a group called Protect Girls Sports, would require that participation in school athletics and use of sex-separated facilities be determined by a student's sex assigned at birth, rather than their gender identity. The group initially collected enough signatures to qualify for the ballot in March, but Maine Secretary of State Shenna Bellows later invalidated nearly 4,000 of those signatures after a review, leaving petitioners about 500 short of the threshold. A Superior Court judge upheld that decision last month, prompting an immediate appeal to the Maine Supreme Judicial Court.

Wednesday's arguments before the seven justices at the Capital Judicial Center in Augusta centered on the conduct of out-of-state signature circulators. Protect Girls Sports employed roughly 120 people from outside Maine to gather petitions, and Bellows's office found that many of those circulators had left signature sheets unattended, submitted improper signatures, and in four cases had failed to check a box consenting to Maine's jurisdiction — a requirement set under a 2020 federal consent order that governs nonresident petition circulators.

That order, approved by a federal court, requires anyone from out of state collecting signatures in Maine to consent to being investigated or prosecuted for any violations of state election law. The petitioners' attorney, Timothy Woodcock, argued that the consent order itself is unconstitutional and that Bellows therefore had no authority to enforce it. He told the justices that upholding the decision would strip an initiative from the ballot on the strength of a federal decree rather than any finding that the signatures themselves were fraudulent.

"If this is upheld … an initiative has been pulled off the ballot with 1,520 otherwise valid signatures on the strength of federal court order," Woodcock said in his closing remarks. "That would be a remarkable result under these circumstances."

Chief Justice Valerie Stanfill pushed back, asking Woodcock what Bellows was expected to do given that she is bound by the federal order. Justice Catherine Connors questioned whether the First Amendment permits a state to require a consent-to-jurisdiction agreement at all, noting that four federal appellate courts have upheld similar arrangements. Woodcock responded that the constitutionality of the order would depend on its specific terms, but maintained that Bellows has a duty to disregard it if it conflicts with the Maine Constitution.

Representing the secretary of state's office, Assistant Attorney General John Bolton argued that the consent order was not an attempt by the secretary to expand her own authority and that Bellows had acted within her legal obligations. Bolton also addressed a situation raised in court filings in which one of the nonresident circulators who had failed to check the consent box later filed a corrected form weeks after the deadline. He warned that allowing petitioners to fix signature-related errors after submissions had been received would invite abuse of the process.

"I think it might lead to a lot of gamesmanship," Bolton said. "Especially if you imagine a situation of a circulator who knows, maybe, that they did something wrong, and is very concerned about that. We're going to have a very hard time even getting them to consent to the jurisdiction."

An attorney for a group of three Cumberland County residents who originally sued to challenge the signatures also argued in support of Bellows's decision. In court filings, that group characterized the petitioners' appeal as "half-baked."

The underlying lawsuit against the referendum was filed by three Cumberland County residents in March, just days after the secretary of state initially certified that the petition had met the threshold for the ballot. Their challenge argued that the out-of-state circulators had not complied with Maine law, prompting the agency review that resulted in the signature invalidations.

Bellows's office must finalize Maine's November ballot by Aug. 25. Chief Justice Stanfill told the parties the court would issue a written decision well in advance of that deadline, leaving the fate of the referendum — and the question of whether Maine voters will get a say on transgender athletes in school sports — in the hands of the state's supreme court for now.