Voter Guide for the November Referendum Election
With Election Day approaching, it’s important for Maine citizens to understand the full slate of ballot questions they’ll face this November. Below is Maine Policy’s take on all eight questions, including what these initiatives mean for Mainers and what a “yes” or “no” vote translates to from a policy perspective.
Citizen’s Initiatives (Questions 1-4)
Question 1
“Do you want to bar some quasi-governmental entities and all consumer-owned electric utilities from taking on more than $1 billion in debt unless they get statewide voter approval?“
The first question on the November ballot is a utility-sponsored question that was proposed largely in response to Question 3 on this year’s ballot, which is an effort to seize the assets of Central Maine Power and Versant Power in order to create the Pine Tree Power Company.
If approved, Question 1 would require voter approval before the state could take on new debt in excess of $1 billion. Thus, if Questions 1 and 3 were to pass this year, another statewide election must be held to decide if Maine voters want to take on more than $1 billion in debt to finance the acquisition of Central Maine Power and Versant Power’s assets. For that vote and any subsequent referendum related to the state taking on more $1 billion in debt, the State Treasurer and Secretary of State would be required to draft and make available to voters a document that includes a clear explanation of the principle and interest costs associated with the debt.
Question 3 on this year’s ballot seeks to establish a consumer-owned utility that would seize the state’s privately-owned utility companies by eminent domain for an indeterminate amount, the cost of which is disputed to be somewhere between $5.4 and $13.5 billion. The financial burden to repay the debt required to seize those assets will fall on ratepayers, resulting in higher electricity bills. Question 1, if passed, would serve as a failsafe to help prevent Mainers from incurring this kind of debt before a massive overhaul like that proposed in Question 3 can occur.
While this question was ultimately designed to provide an additional avenue to stop a takeover of Maine’s private utilities, the idea of gaining voter approval before taking on massive amounts of new debt is sound. Question 1 is sound public policy, particularly for Maine taxpayers and ratepayers.
Question 2
“Do you want to ban foreign governments and entities that they own, control, or influence from making campaign contributions or financing communications for or against candidates or ballot questions?“
This initiative seeks to restrict Maine businesses that are partially or fully-owned by foreign governments from spending money to influence voters in state elections. For example, Central Maine Power is majority-owned by a company based in Spain called Iberdrola, and Versant is also majority-owned by Enmax based in Canada. Under Question 2, these companies would be barred from spending money on future referendum campaigns even if those questions (like Question 3) specifically targeted their assets. As a result, two businesses that are among the largest employers and tax contributors in the state would lose their voice in the political process.
This measure would prevent corporations with at least 5% foreign government ownership or control from spending money to influence ballot measures and candidate elections. Question 2 likely violates the First Amendment and was rightly vetoed earlier this year by Gov. Mills due to these concerns. In her veto letter, Gov. Mills, Maine’s former attorney general, said:
“..[W]e can find a way to prevent foreign influence in our elections by enacting a more narrowly tailored and easily understood statute. Foreign actors have, and will, attempt to influence elections in America, but in attempting to protect our citizens from such nefarious actors, we should not create a bureaucratic morass that will entrap and silence otherwise legitimate voices and undermine the fundamental American cornerstones of free speech and free press.”
If voters approve Question 2, its implications go far beyond simply banning foreign companies from participating in and influencing elections. It will also place unnecessary burdens on Maine businesses and media platforms. For example, the bill states that media outlets will have to do their “due diligence” to ensure they don’t publish communications from “foreign government influenced entities.” This means that media organizations will spend countless amounts of time and money screening advertisers and advertisements before they run on air or in print. That kind of restriction on a free press can’t withstand legal scrutiny.
Restricting speech and punishing media companies for doing their job runs afoul of the First Amendment, which makes Question 2 a nonstarter despite its good intentions.
Question 3
“Do you want to create a new power company governed by an elected board to acquire and operate existing for-profit electricity transmission and distribution facilities in Maine?“
Maine has two private utility companies, Central Maine Power and Versant Power, which facilitate electricity in Maine. They are both investor-owned utilities and balance their risk and cost between shareholders and ratepayers. The proposed Pine Tree Power Company (PTPC) would be a consumer-owned utility, which would supposedly be managed according to the public interest. If Question 3 passes, the PTPC would be allowed to acquire the assets of both companies by eminent domain, assuming an estimated debt of between $5.4 billion and $13.5 billion. The PTPC would raise the necessary capital for the acquisition through bonds and ratepayers would be responsible for the repayment of that debt.
However, neither CMP or Versant want to sell to the PTPC. The approval this question would result in a long, drawn out legal battle that could take up to a decade to resolve, creating more uncertainty for Maine residents as to the status of their electricity and for how much debt they will be responsible when it’s all said and done.
When a similar measure was introduced in the 129th Legislature, a Boston-based group, London Economics International (LEI), issued a report which analyzed the effect of this kind of acquisition on electricity rates and the length time it would take to recoup the initial debt incurred. In their sensitivity analysis, the group projected that rates would increase dramatically over 10 years. In the short term, a low base growth rate (below 5% per year) combined with the high acquisition price would result in rates increasing more under the structure of the PTPC than if the utilities remained under private control.
There is no conclusive evidence that the PTPC would save ratepayers money or improve the delivery of electricity. In fact, most evidence shows the PTPC has overestimated its ability to deliver power and reduce rates.
There are also issues with the composition of the PTPC’s governing board that should give ratepayers pause. As stated in the text of the bill, the PTPC’s governance will be political in nature:
“The company is governed by a board of 13 members, 7 of whom are each elected to represent 5 State Senate districts, as well as 6 designated expert members.“
This structure will subject the governing board to political pressures, as the elected seats will become powerful, sought after positions that special interests seek to control. The six appointed positions will create a new class of political patronage for the elected members of the body. This structure could yield unpredictable and potentially conflicting utility policies. It’s absurd to think that politicians are better equipped to run a utility company over industry and subject matter experts combined with market forces.
Question 3 is bad policy for Maine residents, businesses, the economy and, most importantly, electricity rates.
Question 4
“Do you want to require vehicle manufacturers to standardize on-board diagnostic systems and provide remote access to those systems and mechanical data to owners and independent repair facilities?“
The proposed Right to Repair referendum seeks to ensure that vehicle owners and independent repair shops have unfettered access to the software, information and diagnostic tools necessary to maintain and repair a vehicle in the same way an authorized dealership can.
Proponents of the initiative believe that, if passed, the Right to Repair would dramatically increase consumer choice, as it would give more individuals and repair stations access to the technology needed to fix their vehicles.
Testimony from the Maine Auto Recyclers Association stated that:
“[T]he widespread use of telematic data to program various auto parts, from transmissions to power windows, has now made it increasingly difficult for an independent garage to repair vehicles.”
At face value, Question 4 appears pro-consumer choice but opponents believe passing this measure would infringe on property rights and pose a potential threat to digital consumer security. According to the Alliance for Automobile Innovation, all of the information needed to repair vehicles is currently accessible to independent and third party repair shops at www.OEM1stop.com.
Proponents of Question 4 respond to this by arguing that diagnostic information, while accessible and useful, is not enough to conduct a professional repair. Manufacturers, they claim, are guarding the necessary software, technical equipment and information that is needed to calibrate and reset the increasingly complex computer systems within modern vehicles. Some manufacturers do make the proper equipment and tools available but at a prohibitively expensive cost, making it difficult for repair shops to afford to fix certain vehicles. Others simply do not allow access at all. This has the effect of reducing competition and forcing consumers to seek repairs at an authorized dealer, potentially increasing the price.
This is a legitimate concern and is certainly taking shape within the marketplace. As vehicles get more complex, and especially as electric vehicles are more widely adopted, this trend appears set to increase over time.
However, the underlying issue at the heart of this question is one of property rights. If an automaker or entrepreneur develops new technology for a vehicle (or any other product), that idea and innovation belongs to them. As inconvenient as that may be, they are well within their right to manage the accessibility of that technology however they wish. If a corporation chooses to restrict and limit the usability or repairability of their product, they may be able to monetize it in creative ways but they are also providing a market advantage to competitors who wish to be more open with their technology. This has been on display with smartphones, for example, as the Android operating system was developed to be more open and accessible in order to capture market share from Apple.
Forcing a company to give up their intellectual property because independent repair shops don’t want to (or are unable to) invest in the technology needed to fix every vehicle that comes through their door is wrong. Question 4 can be distilled down to independent repair shops using government force to improve their bottom line to the detriment of automobile manufacturers who’ve established hurdles to repairing their products. It has less to do with establishing a true right to repair for the individual consumer than it does with competing interests seeking government intervention to grant them an edge in the marketplace.
We recognize that markets, when allowed to function properly, sometimes create unfortunate outcomes for certain parties in the marketplace. However, these situations also inspire and incentivize creative solutions. If automobile manufacturers continue to move in the direction of making their cars more difficult to repair, their decision will give rise to new manufacturers who seek to make their vehicles the easiest to repair.
In the end, the free market will solve this problem over time if allowed to operate without government intervention.
Constitutional Amendments (Questions 5-8)
Question 5
“Do you favor amending the Constitution of Maine to change the time period for judicial review of the validity of written petitions from within 100 days from the date of filing to within 100 business days from the date of filing of a written petition in the office of the Secretary of State, with an exception for petitions filed within 30 calendar days before or after a general election?“
Question 5 asks voters if they want to change the Maine Constitution’s period of judicial review for a written petition from 100 days to 100 business days from the date of filing. In this case, a written petition is a petition filed to initiate a citizen’s initiative or people’s veto. With the stress and strain that is often associated with state officials reviewing filed petitions, extra time to verify submissions is likely a net positive as it would give additional opportunity for the state to scrutinize and determine the validity of written petitions. This resolution is straightforward and mostly neutral to the petition process.
Question 6
“Do you favor amending the Constitution of Maine to require that all of the provisions of the Constitution be included in the official printed copies of the Constitution prepared by the Secretary of State?“
The Maine Constitution was approved in 1820, allowing Maine to become the 23rd state to enter the union. Many Mainers are unaware that some sections of the Constitution were removed from the officially printed version in 1876 when Article X, Section 7 was added. Those removed sections, Article X, Sections 1, 2, and 5, relate to the following:
- Article X, Section 1 deals with the time and date of the first meeting of the Legislature and the number of representatives
- Article X, Section 2 outlines the terms held by the first office holders.
- Article X, Section 5 deals with provisions regarding Maine’s separation from Massachusetts and includes language related to the state’s Indian Treaty obligations
Article X, Section 7 removed sections 1, 2, and 5 from print. Question 6 would restore them in the officially printed version.
There are two important items that need to be considered with this proposal. First, Maine’s Native American tribes view the removal of these provisions of the Constitution, particularly Section 5, as an attempt to erase knowledge of treaty obligations between the state and the tribes. However, the rights and responsibilities of the state and Wabanaki Nations are not defined by the treaties referenced in Section 5, but by the state and federal statutes of the Maine Indian Land Claims Settlement Act of 1980.
Secondly, whether Maine voters approve or reject this question, nothing practically changes in Maine law. The constitutional provisions in question were removed from printing because they were referring to things that were no longer applicable to the operation of Maine state government. In an opposition letter, Gov. Mills wrote that this proposal solves no “real world” problems and only creates additional confusion. The provisions still hold the force of law (even though they are outdated) and adding them back into the printed version of the Constitution changes nothing about the status of these provisions or their legal validity.
Question 7
“Do you favor amending the Constitution of Maine to remove a provision requiring a circulator of a citizen’s initiative or people’s veto petition to be a resident of Maine and a registered voter in Maine, requirements that have been ruled unconstitutional in federal court?“
Question 7 would remove the constitutional requirement that an individual collecting signatures for citizen’s initiatives and people’s vetoes be a citizen of Maine and registered to vote here. According to a 2022 decision by the First Circuit Court of Appeals in We The People PAC v. Bellows, Maine’s requirement placed an undue burden on “core political speech” through the institution of residency and voter registration requirements. Proponents argue that this decision means Maine must amend its Constitution to bring it into compliance.
Question 7’s passage would undoubtedly result in out-of-state special interests spending more money in Maine and shipping in signature gatherers to get referendum questions on our ballot. This will make the process even more chaotic than it has been in recent years. Though it’s unfortunate that this would be the result of Question 7’s approval, it’s also likely that higher courts would affirm the First Circuit’s ruling. Laws affecting core political speech must be narrowly tailored to fulfill a compelling state interest to withstand legal scrutiny, and it’s difficult for states to craft laws in such a manner.
Ultimately, Question 7 is a matter of protecting core political speech and aligning with federal law. Though Mainers will be deluged with more ballot questions from out-of-state interest groups, the First Circuit’s ruling would likely be upheld if challenged further due to the burden it imposes on core political speech.
Question 8
“Do you favor amending the Constitution of Maine to remove a provision prohibiting a person under guardianship for reasons of mental illness from voting for Governor, Senators and Representatives, which the United States District Court for the District of Maine found violates the United States Constitution and federal law?“
Article II, Section 1 of the Maine Constitution states that individuals with mental illness under guardianship are not allowed to vote. Guardianship, sometimes referred to as conservatorship, is defined as “a legal proceeding where a person or entity (the guardian) is granted the authority to make decisions for another person (the ward).” The purpose of this provision of the Constitution was to ensure that citizens with mental illness who are unable to make decisions for themselves are prevented from voting. Not only are such individuals incapable of reasoning normally, but they are also susceptible to being manipulated or used by others.
In 1997, this same question appeared on Maine’s ballot and was defeated by 58% of voters only to appear and be defeated again in 2000 with 60% of the vote. In 2001, the Disability Rights Center of Maine filed a lawsuit in federal court on behalf of three individuals who were under guardianship due to mental illness and prohibited from voting. District Court Judge George Singal held in Doe v. Rowe that Article II, Section 1 violates the Due Process Clause and Equal Protections Clause of the 14th Amendment of the U.S. Constitution and the Americans with Disabilities Act. Singal stated that Maine’s attempt to limit the mentally infirm from voting was too broad. The categorization of people “under guardianship for mental illness” was not viewed as a permissible surrogate for “mental incapacity to vote.”
A better option than approving Question 8 would be to offer an amendment that more precisely defines mental incapacity rather than simply removing the prohibition with nothing to replace it. Ultimately, a “yes” vote would align the state Constitution with the District Court’s ruling and a “no” vote would necessitate a future amendment to clarify the definition of mental incapacity. Regardless of the outcome of this question, those in guardianship would still be permitted to vote in Maine due to the District Court’s ruling.