Maine - Some Post-Election Observations on Question 1

Looking back on the crazy, convoluted campaign on Question 1

Jill Goldthwait

The Ellsworth American

November 5, 2021 

The election is over. More on that when final results are in, but in the meantime it is still worth taking a look at the process-related questions that plagued voters on Question 1, the “Clean Energy” corridor.

The Question 1 campaign, like all campaigns, was a matter of who could yell the loudest and spend the most. Campaigns are not reliable sources of information on an issue or a candidate. Citizens tried to do their due diligence on Question 1 despite the obstacles set up by the clash and fury of the campaign.

Many media outlets tried to present both sides of the issue, but these back-and-forth volleys are not helpful. In one hour-long program, representatives of both sides were given equal time to present their cases. The “yes” guy would say “blah blah blah,” then the “no” guy would say: “That is absolutely not true. Blah blah blah.” Whereupon the “yes” guy would say: “That is so false! Blah blah blah!” What do we learn from that? Nada, since most of us do not have the expertise to sort out the claims for ourselves.

Even the most diligent voters were hard-pressed to decide how to vote, but the question posed most frequently was “Why the heck is the question so complicated?” Here’s why. The “Citizens’ Initiative” is a constitutional right in Maine whereby the electors, by petition, may propose a bill to the Legislature for consideration. The bill may be enacted by the Legislature (“without change”) or referred to the voters for their approval or rejection. The Maine Constitution dictates the process; state statute directs the actual drafting of a question.

The law directs the secretary of state to “write the question in a clear, concise and direct manner that describes the subject matter … as simply as is possible.” Please refrain from derisive hooting unless you have tried this yourself.

The first challenge with Question 1 was the yes-means-no conundrum. This is specifically addressed in state law (Title 21-A, Chapter 11): “The question … must be phrased so that an affirmative vote is in favor of the direct initiative.” So, when the question proposes a ban, an affirmative vote supports the ban.

For a simpler yes or no vote on the pipeline, the question would have to be posed as “Do you want the pipeline?” Then a yes or no vote would be simpler. But that would mean the petitioners would have had to propose the question in terms contrary to their interest.

Next, state law requires the secretary of state to “advise petitioners that the proper suggested format … is a separate question for each issue.” Considerations include whether a voter “would reasonably have different opinions on the different issues,” whether “more than one question would help voters to better understand the subject matter,” and whether the questions “can be enacted or rejected separately without negating the intent of the petitioners.”

The three questions in Question 1 (to build a high-impact transmission line, to allow the Legislature the final say and whether the outcome should retroactively apply to the pipeline’s existing permit) were challenged in court by Maine Rep. Chris Caiazzo, but Maine’s Supreme Court upheld Secretary of State Shenna Bellows’ decision to allow it as a single question.

Those are the parameters within which a referendum question must be written, but the actual drafting is a long dance with multiple partners. Secretary Bellows is clear. The citizens have a constitutional right to petition by referendum and it is her job to facilitate that constitutional right.

The Secretary emphasizes that “the question is not the law.” The question is a summary of the intent of the law, but the ballot includes the complete statutory language that would be enacted. Like all state laws, it can be a challenge for the average voter to read and understand.

The secretary of state is the overseer of the process, but a referendum petition rockets all over the state system before it gets to the voters. Petitioners must gather the signatures (numbering 10 percent of the voters in the most recent gubernatorial election), the signatures must be certified. Secretary of State’s Office staff and the Revisor’s Office (where legislation is drafted), the Office of Fiscal and Program review and the Attorney General’s Office may all be involved at one point or another.

Over the years, secretaries of state have utilized legal resources, various state staff, citizen volunteers, reviews of past referendums, drafting of several possible wordings for consideration, public hearings, public comments and the Flesch-Kincaid Readability Test to work toward the best achievable version of what goes on the ballot. Close examination of the process reveals just how difficult that assignment is. As referendum questions become more numerous and more complicated, it is not going to get any easier.