Portland advocates asked Maine’s high court Friday to force the City Council to put a proposal for creating the state’s first municipal clean elections program directly to city voters.

Fair Elections Portland argued that city councilors violated the constitutional rights of 6,800 residents who petitioned for the change by refusing to hold a referendum, and instead proposing a city charter commission be created to consider the idea and decide whether to present it to voters. Portland voters approved creating the commission last year and its members will be elected in June.

The city successfully defended its decision in Cumberland County Superior Court by arguing that requiring the city to budget money for publicly-financed local candidates would require a formal charter change. An appeal by the petitioners led to Thursday’s arguments in front of the Maine Supreme Judicial Court.

With courtrooms closed because of the pandemic, Thursday’s hearing was available to the public only through an audio stream, so it wasn’t clear which justices were speaking at any given moment. The court took no action and attorneys on both sides made technical arguments to advance their case.

At issue is whether the City Council has the authority to determine whether a proposal is a charter amendment, which can be enacted by a citywide vote, or a revision, which is a more significant change that would first have to be reviewed by a charter commission.

Justices peppered both sides with questions about whether the council is essentially a “gatekeeper” that decides how certain charter proposals are considered and presented to voters. One justice wondered whether the case should be remanded back to the council for an official finding of fact, so the court would have an explanation of the council’s position. Others wondered whether the court was being asked to rule on whether the proposal was an amendment or a revision.

City attorneys argued that the City Council has an inherent right to decide whether a charter change is a minor amendment or significant revision, so it can prevent unconstitutional proposals from being presented to voters. In this case, they argued the proposal to adopt a clean elections program is significant, because an annual funding requirement would bind future councilors and remove their authority to determine the city budget.

Under a clean elections program, such as the one used by state legislative candidates in Maine, people running for office can qualify for public funds to pay campaign expenses if they demonstrate support and pledge to not accept private contributions. The goal is to eliminate or reduce the influence of campaign contributors.

Fair Elections Portland argued that the council can only determine that a charter commission is needed if the petitioners include language that includes the option of launching that revision process. In this case, that language was not on the petitions, so the council had no alternative but to treat it as an amendment and send it to voters, the group argued.

John Brautigam, who represented Fair Elections Portland, said the constitution and the statute lean toward granting the people power to change the fundamental structure of their government. The city’s position, he said, would render that power “illusory,” because it could only be used to make minor changes that do not result in additional costs. He cited the high bar petitioners needed to clear – getting signatures from 20 percent of registered voters – as evidence of powers granted to residents.

“When people themselves seize that power, municipal officers must obey,” Brautigam said. “This notion of a gatekeeper authority has to be carefully understood. The municipal officers in this situation are the ones who enjoy the benefit of the status quo. They’re inherently unlikely to consider and approve anything that changes the status quo.”

In public statements, Fair Elections Portland has cast the city’s determination as an assault on democracy. But Jennifer Thompson, a city attorney, argued against that sentiment in her opening statement by “clearly and unequivocally confirming the city’s recognition of, and deep respect for, voters’ rights and the ultimate authority of the city’s voters to adopt and change the city’s charter.” 

“The fact that the city disputes the position taken by the appellants in this case does not in any way reflect a lack of respect for voters’ rights or for the initiative process,” Thompson said. “Quite the contrary, the city’s efforts in this case reflect the commitment to protecting their constitutional right to initiate legislative changes and voters’ singular authority to change municipal charters.”

Thompson said the council, after ruling that the proposal could not proceed to the ballot as an amendment, could have let it die, because petitioners did not include language allowing the council the option of considering it as a revision. However, she said, the council acted on its own by passing a separate initiative to ask voters to create a charter commission so the proposal could be considered, something voters overwhelmingly approved in July.

Under questioning from justices, Brautigam argued that the council can only make that threshold determination if petitioners include the option language on the petition, so people signing it can be aware. However, Thompson said, the city has that gatekeeper power inherently, and the option language is meant to preserve the rights of petitioners, rather then limit the city’s.

Brautigam noted a charter commission is not guaranteed to consider the proposal to create a clean elections program, since it can consider whatever reforms its elected members desire. He said case law supports his assertion that a clean elections program qualifies as an amendment, because it does not fundamentally reorder municipal government or shift power from one branch to another.

“Any of those standards we would easily satisfy with one discrete proposal that fits neatly within the existing charter and does not change the balance of powers or authorities,” he said.

Note: This story was changed at 7:40 a.m. Feb. 12 to correct a reference to the upcoming Charter Commission election. It will be held in June. It was an editing error.