MORE OBSERVATIONS FROM AUGUSTA

Legislative Blog # 13

"Do I contradict myself? 

Very well then I contradict myself. 

I am large; I contain multitudes."

~Walt Whitman singing as the voice of America.

Delivering Petitions for Ranked Choice Voting

Update on LD 1646, An Act To Bring Maine's Ranked-choice Voting Law 
into Constitutional Compliance

SUMMARY: This bill amends the ranked-choice voting law to bring it into compliance with the Constitution of Maine by applying the provisions of the law only to primary elections for the offices of United States Senator, United States Representative to Congress, Governor, State Senator and State Representative and general and special elections for the offices of United States Senator and United States Representative to Congress. The bill does not allow ranked-choice voting to be used for general and special elections for the offices of Governor, State Senator and State Representative unless an amendment to the Constitution of Maine, Article IV, Part First, Section 5, Article IV, Part Second, Sections 4 and 5 and Article V, Part First, Section 3 that authorizes the Legislature, by proper enactment, to determine the method by which the Governor and members of the State Senate and House of Representatives are elected is ratified.

The bill requires the Secretary of State to adopt routine technical rules for the administration of ranked-choice voting, including the administration of recounts.

Last week, Secretary of State Matt Dunlap and Attorney General Janet Mills called for the legislature to fix constitutional wording to allow for Ranked Choice Voting (RCV) to be implemented in time for the June primaries. Instead of fixing the problem, The Senate Monday, April 2, debated Senate Order 28 that challenges the implementation of RCV adopted twice by voters in Referendum and denies the authority of Secretary of State Matthew Dunlap to implement the law. The Order consists of 45 "Whereas . . ." clauses giving constitutional reasons, as interpreted by proponents of the Order, why the law cannot and should not be implemented. The order itself is the 46th clause: "ORDERED, that the Senate authorizes the President of the Senate to represent the interests of the Senate and take all appropriate action, including the retention of outside counsel, on its behalf in any matter related to advocating for and defending the interests of the Senate, preserving the integrity of the separation of powers provided for in the Constitution of Maine, and preserving the integrity of the election process of Maine, and to raise all appropriate claims and defenses and to seek all appropriate manner of relief, including but not limited to seeking injunctive relief against any state official or private person seeking to exercise powers relegated to the legislative power of Maine not duly and properly extended to such official or officials or person or persons or any of them."

You can watch the debate here beginning at 4:16 PM. Senator Katz started the debate by asking senators to put aside feelings about the policy of RCV and about the partisan divide on the issue. He suggested the order was not about the policy but about confidence in the electoral policy presented by constitutional problems in the bill and about the authority of the Secretary of State in implementing the law. He proceeded with a 30 minute speech explaining the problematic issues with the RCV Bill which included the reasons given in the 'Whereas . . ." clauses of the order. Election statutes and the constitution contradict the RCV primarily in the use of the word "plurality" for the winner of elections though in one instance the  statute uses the word majority. In addition, the constitution requires a separation of powers, and the Secretary of State does not have the authority, the order contends, to implement the RCV law. And finally the legislature, not the Secretary of State has the power to fund the implementation of the law, or not. 

Senator Jackson spoke about the unprecedented and wide-ranging authority the Order gives to the Senate President, not only to legally challenge Ranked Choice Voting, but also to challenge any policy, bill, or law he deems unconstitutional. 

Regardless of the wording, the intention of the RCV law and the will of voters is clear and not in dispute. Senator Bellows explained constitutional provisions that allow the power of the people to trump the power of the Senate. She spoke about the opportunity the legislature had since the first passage of Ranked Choice Voting in November of 2016 and the override of the governor's veto in November 2017 to find legitimate ways the legislature could fix problems involved in implementing it. Instead opponents only looked for ways to prevent implementation. It appears to be Bellows' comment about the failure of the legislature to make the necessary changes that prompted the Senate President to remind the chamber that it was not OK to question the motives of others.

In spite of the Chairman's reprimand to Bellows, Senator Chipman in speaking for voters echoed her remarks when he expressed his frustration at efforts of legislators who repeatedly try to reduce, delay, amend, or unfund referendums passed by the people in recent years. These include expanding Medicaid, increasing Minimum Wage, Legalizing Marijuana, and more. Chipman said the problems cited in the Order could be easily fixed by the legislature if it willed just by simply directing the Revisors' Office to write a new bill that fixes all problems listed in the "Whereas. . . ." clauses of the Order. 

Senator Carpenter said he wasn't questioning anyone's motives; he knew exactly why people were doing what they were doing. He echoed Jackson's criticism that the Order is way too broad. He pointed out that the Senate is not the whole legislature, that if the Order is to be enacted it would only be representing ½ of 2 coequal chambers. And it would only be representing the fraction of the Senate who vote for it.

After the Order passed 21 to 13 Jackson's criticism  provoked an amendment "that set a 21-day time limit on the Order and restricted it to issues involving only ranked-choice voting [which] won majority support and the votes of three Democrats." 

Tuesday Senator Carpenter moved the following order: 

On motion by Senator CARPENTER of Aroostook, the following Joint Order: S.P. 730, STATE OF MAINE 128^TH LEGISLATURE:

ORDERED, the House concurring, that the Joint Standing Committee on Veterans and Legal Affairs shall report out, to the Senate, a bill to implement ranked-choice voting.  At a minimum, the bill must:

1.  Provide necessary funding to the Department of the Secretary of State to conduct all primary and general elections in 2018;

2.  Expressly authorize the Secretary of State to take physical control of the ballots and related materials as necessary to implement ranked-choice voting; and

3. Expressly authorize the State Police, at the direction of the Secretary of State, to retrieve ballots from voting jurisdictions as necessary to implement ranked-choice voting.

Senator Carpenter's motion failed 17 to 17. Ironically, the rule that a motion requires a majority winner and fails with a tie vote or less is what RCV is after in the electoral process. 

On Wednesday, a Superior Court judge ordered the Secretary of State to implement Ranked Choice Voting. On the same day, this same judge heard arguments from the Senate majority in favor of the Senate Order to intervene on behalf of "constitutional integrity." A ruling on this intervention is expected in time to implement the RCV law if the ruling favors that.

So the issue remains in limbo. It's not clear that Republicans, who oppose the RCV bill and have a majority in the Senate, will not vote against any bill to fix the constitutional issues.  And Governor LePage "has 10 days to act on any bill sent to him, so even if lawmakers pass an emergency measure to fix the problem, the governor could hold the bill until close to or past the deadline the secretary of state set for ballot preparation." 

I'm inclined to agree with Senator Katz's remark that this might be the most important issue the legislature deals with this session--to follow the will of the people, or not. 

Power. 

We are in the midst of great power upheavals world-wide. These power conflicts are Civil Rights issues in Maine and across the nation. I believe the track of history bends towards the justice promised in our founding documents: "We the people" in the preamble to the Constitution, "Governments are instituted among Men [sic] deriving their just powers from the consent of the governed" in the Declaration of Independence.  But, recalling the words of Abraham Lincoln, I question: Can this house so divided against itself long endure? Can any nation dedicated to the proposition that all men [sic] are created equal long endure? 

Contradictions

Is it news or surprising that the Maine Constitution and Maine Statutes have contradictions? That any constitution has contradictions? Human beings make constitutions and human beings are complex, contradictory creatures individually and especially collectively. As a people, we have contradictory beliefs about what is true, contradictory values about what is ethically right, contradictory laws that rule our lives, contradictory interpretations of laws, and contradictory opinions about who has the authority to decide and implement law. Contradictions are why we have the judicial court system and why supreme court justices can and regularly do have to argue the interpretation of our constitution and take a vote to determine what it means. It's how we keep our Supreme Courts busy and why so many issues keep coming back to haunt us. We can and regularly do find and argue about contradictions in virtually every constitutional statement, Federal or State.

Motivations

It's very hard to know with certainty my own motivations and to be aware of them with all my actions. Like the Senate Chair, I am uncomfortable when people question my motives. People ask me quite regularly why am I doing this 4-month observation of the Legislature and writing this blog series. I have canned answers: curiosity, a desire to testify about issues I care about, a wish to do my bit to save the world. I giggle in self consciousness at the last one because it seems arrogant to assume I can have any influence. But those motives, especially the last one, are really superficial and abstract. 

I watched The Nuclear Requiem on PBS World this morning. It stirred a mix of fear, horror, outrage, poignancy, grief, love for sufferers, admiration for those who work to alleviate suffering. It made me want to renew my pacifist activity that I have not paid much attention to in recent months. I seldom talk about or reflect on the emotional stew that underlies virtually all of my action. I can only talk about these emotions with abstract words that always seem inadequate, but I know, emotional stew feeds the rock-bottom motivation for why I am here doing this. 

It turns out there is good evidence that emotions and motives are inextricably linked and underlie all our actions. Try a quick Google search and you will see, The relationship, though is more complex than I indicate with my self reflection. It is not simply that emotion, or a complex of emotions, causes motives (which is goal oriented according to the literature). Nor is it simply that motives cause emotion. It is more that emotions and motives interact with each other in a kind of feedback loop that results in decision and action. 

In making collective policy, which is the job of our legislature, both feelings and motives are often unvoiced even though they appear to be very apparent to watchers and listeners We are taught not to make decisions on the basis of emotions, but I can hear clearly the passionate tone of President Franklin Roosevelt proclaiming, "We have nothing to fear but fear itself." That tone, I believe, is driven by fear of  his own fear. I listened to about an hour of the Public Hearing on LD 1884: An Act To Create a Community Protection Order To Allow Courts To Prevent High-risk Individuals from Possessing Firearms. Feelings on both sides were very intense, and one opponent of the bill yelled all through his testimony and shouted several times, "We should not be making policy on the basis of emotion." He sounded very angry. In those moments I think, like Senator Carpenter, that I know exactly what motivates them. And I suspect the emotions of proponents and opponents are much more similar than the positions they take.

A frank and respectful exploration of feelings is one of Dudley Weeks 8 Essential Steps to Conflict Resolution.  Perhaps legislators need a course in conflict resolution during their orientation, a course that includes how to reflect upon and disclose feelings and motives? 

Some Useful Internet Sites

You can check the Legislative Calendar here.  Click on Daily for more detail.

You can watch the Senate in Session usually from 10:00 to 12:00, Monday through Thursday in these final days of the Legislative Session here.  Review Senate Journal and Calendar for each day's session here.

You can hear the House in Session, usually at the same time as the Senate is in Session here.
House Journal and Calendar for each day's session here.