A judge has upheld Portland’s position that establishing a public financing program for municipal candidates should be decided through charter revision rather than a citizen-initiated ballot question.

“The Portland City Council’s decision to classify the petitioners’ clean elections proposal as a (charter) revision is affirmed,” wrote Maine Superior Court Justice Thomas R. McKeon in a decision issued Thursday.

It’s the latest development in a lengthy legal battle between the city and the group Fair Elections Portland.

Fair Elections Portland initially filed a lawsuit against the city in 2019 after the City Council rejected putting its proposal for a clean elections program before voters. It filed a second lawsuit in November 2021.

“We’re happy to have a decision and that they’re confirming our stance,” city spokesperson Jessica Grondin said Tuesday of McKeon’s ruling.

The council asked voters in 2020 whether they wanted to approve a charter commission to examine the issue, and the commission that was created as a result is currently considering a clean elections program.

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“Although we are disappointed in the decision, Justice McKeon makes clear that nothing in the Charter or the Constitution compelled the 2019 City Council to reject the Clean Elections ballot question, nor the 2021 City Council to stand by that decision,” said Fair Elections Portland attorney John Brautigam in a statement. “It was up to the Council to decide.”

Clean elections are a mechanism for providing public campaign funds to qualified candidates for elected office. The proposed voter referendum from Fair Elections Portland in 2019 would have created a clean elections program similar to the ones that can be used by candidates in gubernatorial and state legislative races in Maine. Advocates of such programs say public financing reduces the cost barriers to running for office, and allows candidates to focus on talking to voters instead of fundraising.

Those pushing for the referendum collected more than 6,800 valid signatures in 2019 to get it on the ballot, but the city attorney at the time said that if a public financing program were approved, Portland would have to pay for it, which would be a major change and would have to be reviewed by a charter commission.

Voters approved creating the current Charter Commission in 2020. Any recommendations from the commission also would require voter approval.

After the Superior Court ruled against Fair Elections Portland’s initial lawsuit in May 2020, the group appealed to the Maine Supreme Judicial Court, which directed the city to explain the rationale for its decision. The City Council, whose current members mostly took their seats after the 2019 decision, voted unanimously in October to approve a statement of facts that reiterated that the issue needed to be studied by a charter commission.

A second Fair Elections Portland lawsuit, filed in November in Cumberland County Superior Court, challenged both the council’s original decision and the findings of fact approved in October. Brautigam said at the time that Fair Elections Portland needed to file the second complaint to get the issue back into court, and the group wanted to keep litigating in part because there is no way to know what the outcome of the charter commission review will be.

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In the court’s decision on the second lawsuit, McKeon wrote that the council could have decided that the proposal was an “amendment” to the charter, subject to change through a direct appeal to voters, rather than a “revision” requiring the charter commission process. But he also said the court could not substitute its judgment for the city’s in determining the financial impact of clean elections, something that would make a difference in deciding whether the proposal should be considered an amendment or revision.

“As the Court noted …, ‘The City Council could have found that the proposal was an amendment,’ ” Brautigam said. “Fair Elections Portland has consistently argued that the Council should have designated the proposal as a charter amendment.”

“The Court also agreed with Fair Elections Portland that, contrary to the instructions of corporation counsel last summer and fall, the 2021 Council ‘could have heard more evidence in light of the Law Court’s decision …’ Fair Elections Portland has consistently argued that the Portland City Council should promptly reconsider its earlier decision and carefully weigh all of the evidence before it.”

Brautigam said Fair Elections Portland is considering an appeal as well as other options for getting a clean elections proposal on the ballot.

“It will take a little longer for the will of the voters to be heard, but we remain confident that multiple options exist for reversing the 2019 City Council’s erroneous decision,” said Fair Elections Portland President Anna Kellar in the group’s statement. “If unchecked, this decision could be a setback for democracy at a perilous time. Ballot placement should be a decision for the people, not for city officials. Democracy is based on ‘consent of the governed,’ not ‘consent of the government.’ ”

The Charter Commission’s elections committee, meanwhile, has approved a clean elections proposal to be considered by the full commission, though the commission has been waiting for action from the court before proceeding.

Commissioner Catherine Buxton, the sponsor of the clean elections proposal, said Tuesday she hadn’t yet seen the court decision and so could not say what the impact would be on her proposal.

The proposal the Charter Commission will consider would create a mechanism for providing public campaign funds to qualified candidates for elected municipal offices. The committee has estimated the annual cost of the program would be about $290,000. 


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