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Adopt & Amend – The Path Not Taken

Is Portland being “governed by referenda”? No, but this exasperated exaggeration heard on the lips of many Mainers isn’t groundless. In the 2020 election, Portland residents voted on five ballot initiatives, approving four: increasing the minimum wage, enacting rent control, deregulating marijuana retail licenses, and enacting a “Green New Deal” (a series of amendments mostly related to regulating new construction.) This was considered a substantial slate then, but this year voters will be presented with no fewer than thirteen ballot initiatives: eight brought forward by the Charter Commission, four sponsored by the Maine chapter of the Democratic Socialists of America, and one from Scott Ferris, competing with one of the DSA proposals.

On August 8th, during a marathon City Council meeting, the citizen-initiated referenda were approved by the council to be added to the ballot come November. The petitions had the required signatures, this step was merely a procedural formality. Or was it?

As it turns out, no. When facing a petition with 1,500 valid signatures supporting an initiative to change the city’s laws, per the Code of Ordinances, the Council actually has two options:

1) Put the proposed initiative on a forthcoming public election’s ballot, at which time the electorate can vote on whether or not to enact it.

2) Enact it immediately.

The subtlety of the second option may elude the recreational parliamentarian. But this potent instrument should be neither underestimated nor discounted by our duly-elected councilors.

You might ask why, if a Council were opposed to a proposed initiative, they’d want to save its sponsors the trouble of campaigning and just pass it themselves. The answer to this can be found in Chapter 9, section 47: “An ordinance enacted by a vote of the people…shall not be repealed or amended for a period of five (5) years[.]” This proviso makes all the difference in the world. If an expansive referendum passes, and has unforeseen consequences to Portland’s severe detriment, the Council’s hands are tied for half a decade.

So, a Council with grave reservations about a proposed initiative may, instead of gambling on it fizzling at the ballot box, bite the bullet by accepting it in principle while leaving open the possibility of tweaking it.

Still confused? I was as well, so this diagram may be of some help to you:

Viewing it this way, it’s easy to see that there are three potential outcomes once a petition has reached the 1,500-signature mark. It’s not a matter of pass-or-fail, it’s pass with possibility to amend-pass without possibility to amend-or-fail. But that’s not quite as slick off the tongue. From a game theory perspective, mapping out the decision tree like this puts the public hearing into an interesting light. Effectively, sponsors of a ballot initiative are putting the City Council into a position where they can either ‘play ball’, and accept the change in principle, or else bet the farm at the ballot – at which point there’s no going back. At least not for five years.

So, with regards to the referenda on the November ballot, could the Council have ‘played ball’, and definitively avoided the (potentially dangerous) outcome of an un-amendable law?

This past August 8th, for at least one of the initiatives, the Council debated taking just this course. Councilor Andrew Zarro, representing Portland’s Fourth District, proposed Order 49-22/23, to adopt one of the DSA’s proposed initiatives. The initiative in question restricts the ability of cruise ships to freely dock and disembark in the city.

While the DSA’s other proposals attracted no shortage of public comment, these played out in a fairly predictable pattern with all parties playing their assigned roles. This cruise ship referendum, however, attracted particularly passionate and bitter controversy between DSA supporters (unusually on less-than-steady footing) and representatives from Portland’s longshoremen union (ILA Local 861). This debate was further textured by expressions of bafflement from city councilors and sincere misgivings from mayor Kate Snyder towards both the proposed initiative and Zarro’s procedural maneuvering.

Following the proposed Order 49-22/23 to adopt the DSA’s initiative was Order 50-22/23, also from Councilor Zarro, which would have immediately amended the new law to go into effect January 1st, 2026, instead of January 1st, 2025. A minor amendment, useful for both giving the Council more time to consider further changes – and also to test the political waters for this strategy. A rock-solid gambit, but in order to pull this off, seven votes from the Council to waive the second reading would be necessary.

As you have surmised, these seven votes were not to be found.

The Weisskunig in Council, 1514. Artist Unknown.

The split was close, with six voting in favor, but councilors Mark Dion and Tae Chong dissented. With them, Mayor Snyder ultimately chose not to support Zarro’s order. Perhaps the most interesting reasoning came from Councilor Chong, who certainly opposes the DSA initiative. But he suggested that since the DSA and waterfront labor were at cross-purposes, the initiative would likely founder at the ballot box. This, it must be said, is a bold gamble, and any analysis of Chong’s motivations would be incomplete without recalling that he is not going to be running for re-election.

With adopt-and-amend chicanery shipwrecked on District 3, the only alternative limped along. The Council voted to send the cruise ship initiative, along with the other referenda, to the ballot. The voters will have to decide in November.

In a (much less organized) twin maneuver, Councilor Pious Ali suggested a similar adopt-and-amend strategy to defuse both of the referenda relating to short-term rentals. This move, however, was apparently sprung on the rest of the Council that night, (not having an agenda item associated with it), and ultimately went nowhere.

So, with two failures to launch, should the adopt-and-amend strategy be abandoned? Certainly not, though it will not play a role in this election cycle. Sentiment against excessive referenda is growing, with a new political action committee “Enough is Enough” being formed with the express raison d’être of opposing governance-by-ballot initiative. While the crassness of some anti-referendum voices is easy to lampoon, the dangers of poorly-drafted ballot initiatives being impossible to tweak or adjust is real, and severe. The data remains inconclusive, but there are indications that 2020’s “Green New Deal” may be resulting in a precipitous decline in housing construction. If true, Portland’s housing shortage may rapidly worsen. But the Council will be unable to touch the laws enacted by the “GND” until 2025. City government can already feel unresponsive in the best of times, having it be even further limited in its capacity to respond to a crisis is not an appealing prospect.

This path was not taken this time. But in future, the possibility for the City Council to adopt-and-amend proposed ballot initiatives may play a crucial role in the interplay between Portland’s government and independent political organizations.

Another path not taken at the August 8th meeting was a sorely-needed clarification on the differences between the two citizen-initiated referenda regarding short-term rentals. The Council, at the recommendation of government staff, decided not to print the full text of the proposed initiatives on the ballots, instead relying on summaries provided by the sponsors. But this presents a new problem: the summaries for the two initiatives related to short-term rentals do not adequately explain what the differences between them are. These bland descriptors both suggest their respective referenda will restrict the kinds of short-term rentals that are legal in Portland, but do not explain how they are distinct from one another. At the meeting, voices from all sides of the debate urged the Council to alter these summaries to reflect these differences. This writer among them. But the Council ultimately deferred to precedent and left them intact.

While it’s likely that most voters will be familiar with the referenda prior to actually entering the voting booth, this is a disaster for anyone who believes voters ought to be armed with adequate information before making a decision. Without either the full text of the proposals or a sufficient summary, any voter not already educated on the distinctions will be completely unable to make an informed decision. And this is before even considering the procedural briar patch that is the (not unlikely) result if both competing referenda are enacted by the majority of voters.

The City Council, perhaps unsurprisingly, took the path of least resistance at this meeting. Even this path, however, took many hours of debate, deliberation, parliamentary process, public comment, staff advisement, and confusion over procedure. Those who are frustrated by the increasing use of ballot initiatives have no reason to expect that their grievances will be addressed, and those that hope a proactive city government will obviate the need for them can also expect disappointment.

Unless the Council felt compelled to employ a ‘nuclear option’, so to speak, in amending Chapter 9 of the Code of Ordinances. Another option would be to launch a new referendum to amend the previous referendum, but this would ‘reset the clock’ and prevent Council action for another five years.

Ashley D. KeenanAshley is an editor of The Portland Townsman, writer on urbanism, local small business-owner, and Maine native. Her work primarily covers the national housing crisis, building sustainable and livable cities, responsible market economics, and New England culture and history. She lives in Portland with her fiance and can be personally reached at ashley@donnellykeenan.com.

2 Comments

  1. Robert J. O'Brien Robert J. O'Brien

    A keen observation, this article.

    I wonder whether it would be a “nuclear option” for the council to reform the referendum process. Is there no reasonable alternative to the five-year prohibition of altering laws passed by referendum?

    I’ve thought out loud whether the council should consider adding to the code an arbitration option after a referendum passes. In this scenario, the campaign would name three people to represent their side when they file with the clerk. If the council wants to amend a passed referendum during that five-year prohibition, let the council name their own three reps and enter into arbitration to change the law. Ideally, both sides would agree on several improvements.

    I also am curious about the legal ramifications of the council adopting a referendum petition and immediately altering it drastically. Doesn’t that defy the intent of the people’s initiative? I don’t mean tweaking it, I mean gutting it. Is that legal? That’s a weird loophole indeed…

    • I’ll have to read up more on the case law, but my understanding is that should the City Council use their adopt-and-amend powers to completely gut a proposed initiative, the city would be highly vulnerable to a lawsuit.

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