The Maine Supreme Judicial Court heard arguments Thursday about whether the term "quasi-governmental" should be used in a referendum question that would create a consumer-owned utility in the state.
At the center of the case is whether voters will be confused about how the entity would operate when it comes time to vote.
If the question passes, an elected board of directors created under the law would create the Pine Tree Power Company. That board would then seek bonding to buy out Maine's biggest electricity providers, Central Maine Power and Versant Power.
The wording matters in ballot questions, since they essentially become law if approved by voters. State law requires ballot questions to be understandable to the average voter reading it for the first time.
That requirement was heavy on the minds of the justices Thursday afternoon.
“It's not whether even if you didn't know what quasi-governmental meant, you might still understand which way you were supposed to vote if you supported or didn't support," said Chief Justice Valerie Stanfill to Assistant Attorney General Paul Suitter, representing Secretary of State Shenna Bellows. "But you might be given a great deal of pause about what the heck is this question?"
Suitter argued Bellows did her job by using language voters would understand if they had researched the question beforehand.
“It's assumed that voters have discharged their civic duty to educate themselves about the initiative, they're aware of the political context and the debate around the initiative," he said.
But that prompted Associate Justice Rick Lawrence to press Suitter on the Secretary of State's responsibility.
“But doesn't the Secretary of State still have an affirmative obligation to try to state the subject matter of the initiative in as simple terms as possible?" he asked.
"Here, she at least wanted to give voters a sense of what this power company would look like," Suitter replied.
The main appellee in the case are members of Our Power, the group driving the referendum. Attorney Peter Murray argued to the justices that a reasonable voter wouldn't get that the utility would be owned by consumers and not taxed supported if Secretary of State Shenna Bellows' original wording stood.
"The fact that we've been arguing in briefs and with the court about what quasi-governmental means is about as elegant proof as you could ask for that the term is not understandable to the reasonable voter who encounters it for the first time in the voting list," he said.
But Stanfill wasn't entirely convinced that the phrase "consumer-owned" is clear either.
"In the proposed legislation, a customer owner is defined to mean a person to whom the company provides electricity. Absent that definition, I mean, isn't it a pretty, whether it's customer owner or consumer owner, isn't that pretty misleading?" she asked.
Not necessarily, Murray replied.
"In the world of utilities, consumer owner as a word of art, is defined as being the customers of the many, nine consumer owned utilities in the state, which have a variety of ownership structures," he said.
If the justices uphold the lower court's ruling that the question is confusing, the Secretary of State will have to redraft the question.
