The Portland City Council is trying to figure out how to respond after Maine’s top court questioned why it refused to hold a referendum on a proposed clean elections program two years ago.

But it is now too late for councilors to reverse that decision in time to put the question on the November ballot.

Clean election advocates, who submitted about 6,800 signatures in support of the initiative in 2019, have urged the council to reverse a previous decision to have the proposal reviewed by the Charter Commission before seeking voter approval.

But City Clerk Katherine Jones said Tuesday that she ordered the November ballots Monday – without a referendum question – so they would be ready in time for absentee voting starting Oct. 4.

“Election system and software require 3 to 4 weeks to lay out the ballots, send proofs and then print them, (and) because we have (ranked-choice) voting it takes a bit longer to set up,” Jones said in an email Tuesday morning. “I have always had my ballot order in the last week of August/first week of September.”

That news comes after Portland councilors met in closed session Monday to discuss the high court’s request for information justifying the 2019 decision to not place the referendum on the ballot. The legal strategy session appeared to present a conflict for one city councilor who was part of the group that filed suit against the city in 2019 over the decision.

Fair Elections Portland’s citizens initiative calls for creating a municipal clean elections program similar to the state’s.

A clean elections program provides public financing for political campaigns to candidates who agree to limit the amount of private donations they receive. Advocates say the system reduces the influence of money in politics and levels the playing field for candidates who have less personal wealth. Such a program currently exists for gubernatorial and legislative candidates.

Fair Elections Portland sued the city after the City Council decided that the proposal would constitute a significant enough change to city government that it could not go to voters without first being reviewed by a charter commission.

The city successfully defended its decision in Cumberland County Superior Court, arguing that requiring the city to budget money each year for publicly-financed local candidates would require a formal charter change. Charter changes must also be approved by voters, but only after being recommended by an elected charter commission.

Fair Elections Portland appealed the ruling to the Maine Supreme Judicial Court, which heard arguments in February. The court issued an opinion in June that said a municipal clean elections program did not seem to be a significant reform, but that the court did not have enough information to decide the case. The court remanded the issue back to the city and ordered the council to present facts to justify its decision.

Councilor April Fournier was one of 13 voters to sign onto a Fair Elections Portland’s lawsuit. She was elected to an at-large seat in fall 2020.

Five of the nine council seats have turned over since the court issued that decision, including the mayor.

Mayor Kate Snyder, who was not mayor when the council voted in 2019, said in August that she believes the Charter Commission is best-suited to take up the proposal, since it would involve a funding mandate.

“I think we will all benefit from deep study of this issue,” Snyder said.

A charter commission has since been formed and developed an ambitious list of reforms to study over the coming months, including clean elections.

A City Hall spokesperson confirmed that the council has not held an executive session, which is closed to the public and the press, to discuss the case since Fournier was elected. Neither the spokesperson nor Corporation Counsel Danielle West responded to questions Monday or Tuesday about whether Fournier had discussed the apparent conflict with the legal department, or what she was advised to do.

Fournier said in a text Monday that she was dealing with a family emergency and was not immediately available to discuss the issue. She did not attend the meeting Monday, averting a potential conflict for the moment.

At the Aug. 23 council meeting, clean elections advocates urged the city to reverse course and simply place the clean elections proposal on the ballot this fall to allow the commission to focus on other possible reforms. The commission plans to examine the roles of both the city manager and elected mayor, the composition of the council and more than two dozen other topics over the coming months.

“Out of respect for the charter commission, they should not have to deal with this issue,” said Kate Sykes, an organizer with the Maine Democratic Socialists of America, which is also a party in the suit against the city. “We should let them do the job that’s in front of them and give them the latitude to take on other issues.”

While the council was criticized in public comment and again Tuesday for moving too slowly in response to the Law Court ruling, West said at the Aug. 23 meeting that the city was taking up the issue in due course. She said the Law Court remanded the case back to Superior Court, which then had to remand it to the council.

“We were waiting for those important steps to happen before we brought that to the City Council,” West said.

West said the Law Court determined that the city was correct on “about 85 percent of what the law is on this,” including asserting its role as gatekeeper for potential changes to the city’s “most important governing document,” the charter.

However, the court seemed skeptical of the city’s position, saying that a proposed clean elections program “does not, on its face, purport to propose a fundamental change in the form, structure, or nature of the city’s government.”

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