AUGUSTA, Maine — Two questions on Maine’s November ballot are the result of one-upmanship between major electric utilities and their foes, with the state headed for a strange legal showdown if voters pass them both.
The conflicting referendums are Question 3, which would create a Pine Tree Power Co. that would buy out the infrastructure of Central Maine Power Co. and Versant Power and put it under the control of an elected board, and the CMP-backed Question 1 which attempts to slow the creation of any new utility by subjecting billions in borrowing to yet another vote.
Perhaps the only thing certain about the dueling questions is the uncertainty over what could happen if Maine voters pass both measures. If Question 3 passes, a ratepayer watchdog expects five to 10 years of legal wrangling over constitutionality and the price of utility assets.
The sides are trying to use language inserted into their respective initiatives to one-up each other’s questions. When both questions were in the drafting stages in 2021, the sides kept making changes aimed at trumping the other referendum.
Question 1 proponents included language saying their law would take effect 90 days after the governor proclaims the outcome of the referendum. Meanwhile, the Pine Tree Power initiative would take effect 30 days after the governor’s proclamation, the standard timeline spelled out in the Maine Constitution for approved ballot measures.
Both sides have laid out theories for why they have the upper hand in this arcane fight. For now, there is no clear answer for what happens legally if both questions pass.
“If they are passed at the same time, how would the courts decide? It’s an open question,” Marshall Tinkle, a Portland-based lawyer who wrote a seminal reference book on the Maine Constitution, said. “I think that this is uncharted territory.”
Supporters of Pine Tree Power argue it will be more responsive than the foreign-owned CMP and Versant, which have ranked low on customer satisfaction and outages, thanks to its elected board and no need to reward shareholders. They tout the prospect of long-term savings, but opponents claim the takeover will cost $13.5 billion and throw Maine’s utility system into tumult.
Question 3 has been the subject of far more public debate than the debt-related one. Political groups run by CMP and Versant spent more than $17 million on their campaign against the takeover as of June 30, while a CMP-affiliated committee spent just $1 million for Question 1.
Our Power, the group backing Question 3, only spent $733,000 by the middle of the year. Their initiative includes special language meant to nullify Question 1 by saying debt of the new company is not subject to voter approval even if a law mandating it is enacted the same day.
Under Question 1, Mainers would have to vote on borrowing more than $1 billion with exceptions for agencies such as the public employee retirement system, Finance Authority of Maine, Maine Turnpike Authority, Department of Transportation, municipalities, counties and several education-related programs. The treasurer would have to disclose principal and interest.
Willy Ritch, who leads CMP’s No Blank Checks campaign behind Question 1 as well as the Maine Affordable Energy Coalition opposing Question 3, acknowledged his side added the 90-day effective date to try to one-up Our Power. The No Blank Checks campaign began with frustration “that the proponents would never say the total cost” of a new utility, Ritch said.
Public Advocate Bill Harwood, who has taken no position on Question 3 but noted several unknowns over a new utility’s cost, reliability and climate outcomes, noted the “implied repeal” legal doctrine, which generally finds that newer laws supersede older ones. For example, it arose this year in Wisconsin during legal arguments over an abortion ban.
He suggested Question 1 could trump Question 3 because it takes effect later, acknowledging court battles on the topic are likely. The Legislature could ultimately resolve conflicts if voters give an “overwhelming mandate” to pass both questions, Harwood added. But Tinkle, the constitutional lawyer, noted that courts do not always invoke the implied repeal doctrine.
There is no official stance coming down from Augusta before Election Day: Spokespeople for Secretary of State Shenna Bellows and Attorney General Aaron Frey, both Democrats, declined to comment on what happens if both questions win, noting courts will have to settle conflicts.
“Question 1 purports to change the ‘effective date’ for the question,” Our Power campaign manager Al Cleveland said. “However, a ballot question does not trump the Constitution.”
