Maine has a problem with its initiative and referendum system no one wants to talk about.
It’s simple: twice in the past seven years, voters have approved questions that turned out to be unconstitutional in whole or in part.
Unlike other states, including Massachusetts, from which it inherited its basic constitutional arrangements, Maine has no pre-clearance provisions to determine whether initiated laws can in fact be enforced.
In 2016, voters backed a plan for ranked-choice elections, the first state in the nation to do so. It was billed as a way to prevent “splitting the vote” for governor, which some insist – although we’ll never really know – allowed Paul LePage to win two terms as governor without achieving a majority.
There was one small problem: Maine’s constitution was changed in the late 19th century to require only a plurality vote in state elections, effectively canceling the ranked-choice attempt to create a majority through multiple rounds.
Though Democrats regularly propose constitutional amendments to alter that provision, Republicans understandably resent a system that also unseated Republican Congressman Bruce Poliquin, even though Democrat Jared Golden finished second in the first round in 2018.
Chances of such an amendment ever achieving the legislative two-thirds required are effectively nil, so it’s doubtful much has been accomplished.
Other questions that year were similarly embattled. An income tax surcharge to fund education was repealed when Democrats failed to defend it. A recreational marijuana question was so poorly drafted it took lawmakers two years to authorize a workable system.
But these snafus pale by comparison to the most recent referendum question we’ve considered and approved – Question 1 in 2021, which shut down ongoing construction of Central Maine Power’s project to connect Hydro Quebec’s dams with Massachusetts ratepayers, at no cost to Maine’s.
Many believed it was unconstitutional from the start, yet it took two years to establish that through a business court jury, by which time electricity prices in Maine and New England had soared and the original construction contracts must be renegotiated due to escalating costs.
That brings us to this year, which features three referendum questions directly or indirectly related to the 2021 question, in a cascade of competing measures bound to confuse matters mightily by the time voting occurs in November.
To start, there’s an attempt to ban “foreign” contributions to referendum campaigns such as the 2021 battle. Since the (unconstitutional) effort would have short-circuited Hydro Quebec’s contract, the company understandably wanted to convince voters to say “no.”
That both Hydro Quebec and CMP’s spending accomplished nothing – 59% of voters said “yes” anyway – is beside the point.
All the saber-rattling about “foreign” contributions never would have happened had opponents not tried to shut things down despite the project being fully permitted by state and federal governments on both sides of the border.
Had the contribution ban in place, Hydro Quebec, providing electricity without greenhouse gas emissions, would have been shut out with major fossil fuel interests from Florida and Texas having the field to themselves.
Next Era, the disappointed suitor for the power line contract, spent $20 million backing the referendum. So much for fighting climate change, one of Maine’s top priorities.
The next question, creating Pine Tree Power to replace CMP and the other major utility, Versant, originally fed off the anger created by CMP’s inept customer service, slow outage repairs, and a malfunctioning billing system – all problems now ameliorated, if not solved.
Pine Tree Power is designed as a unique entity – not governmental, not a cooperative but a sort of hybrid with a board elected statewide. Whether voters would endorse such a scheme seems questionable; it could require borrowing as much as $13 billion, exceeding the combined debt of all Maine’s public entities.
Finally, CMP created a separate ballot measure that would require specific voter approval for such borrowing, just to make sure we’re paying attention.
There are other ironies. Along with Hydro Quebec, part of the provincial government, Versant is owned by the city of Calgary. This is already “public power,” though Canadian and not Maine-owned.
“Foreigners” sounds scary, which could propel the question to passage, but one has to wonder how worrisome such investment by public companies really is. After all, the United States invaded Canada twice, during the Revolutionary War and again in the War of 1812, while it’s hard to recall any similar aggression southward.
Attempts to change Maine’s referendum process have largely focused on numbers of signatures required and where they must be gathered, hardly the root of the problem.
What we really need is a system – a new law – that requires questions to be legal before we vote.
Douglas Rooks has been a Maine editor, columnist and reporter since 1984. His new book, “Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888-1910,” will be published later this year. He welcomes comment at drooks@tds.net.
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