Tuesday, September 25, 2012
The Maryland Court of Appeals ruled in Doe v. Maryland State Board of Elections that a ballot referendum challenging the Maryland Dream Act, a law that offers in-state tuition to Maryland colleges and universities to certain qualifying unauthorized aliens, can stay on the ballot in the upcoming elections.
The decision gives reasons for the court's earlier per curiam order also allowing the referendum on the ballot. The rulings mean that the Maryland Dream Act, a validly enacted state law, will go before Maryland voters in the upcoming election. (Here's a sample ballot. The referendum is Question 4, on page 2.)
At issue was the state constitutional appropriations exception to the referendum clause. The referendum clause says,
The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.
Md. Const. art. XVI, Sec. 1(a). But the appropriations exception prohibits a referendum on certain appropriations questions:
No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.
Md. Const. art. XVI, Sec. 2. The appropriations exception is designed to insulate essential functions of the state, funded by "appropriations for maintaining the State Government," from the whims of voters.
The state Board of Elections approved a referendum challenging the Dream Act for the fall 2012 elections, and petitioners, unnamed and unauthorized aliens who sought in-state tuition under the Act, challenged it as violating the appropriations exception.
The court said that the Dream Act does, indeed, require additional appropriations, but that those appropriations were not the kinds of outlays that the appropriations exception had in mind. The Dream Act was neither a budget bill nor an appropriations bill; it's not a revenue-raising measure; and its primary purpose was to provide a benefit, not to spend money. (Spending money is only incidental.)
The court also rejected the claim that the Dream Act was in pari materia with the state Cade Funding Formula, a formula that ensures stable year-to-year funding of state colleges and universities and itself "mak[es] any appropriation . . . for maintaining or aiding any public institution," and thus shoehorned into the appropriations exception by way of Cade. The court said that the Dream Act and Cade (and any future budget bills) operate independently, so that Cade doesn't leverage the Dream Act into the appropriations exception.
The Dream Act now goes to Maryland voters.