Does the Maine Legislature need a two-thirds vote to enact a competing measure to an initiated bill?

Plain-English summary

Maine's constitution lets the Legislature respond to a citizen initiative by enacting its own "competing measure" and putting both on the ballot. In 1996, an initiated measure was headed for the November ballot, and the Legislature planned a September special session to put its own competing measure on that same ballot. Senate President Jeffrey Butland asked Attorney General Andrew Ketterer a procedural question: would the competing measure need a simple majority or a two-thirds vote?

The reason the question mattered is timing. Ordinary legislation does not take effect until 90 days after the session that enacts it. Legislation that needs to take effect sooner has to be passed as "emergency legislation," which requires a two-thirds vote. Because the special session would be less than 90 days before the November election, Butland worried that the bill might need a two-thirds vote to be ready in time for the ballot.

The AG concluded a simple majority was enough. Article IV, Part Third, Section 18(2) of the Maine Constitution authorizes competing measures without imposing any supermajority requirement. The constitution names every situation where a two-thirds vote is required (overriding a gubernatorial veto, enacting emergency legislation, proposing a bond issue, proposing a constitutional amendment); the competing-measure provision is silent on the vote threshold, which the AG read as deliberately permitting a simple majority.

The emergency-legislation analysis was a separate point. The emergency-legislation rule exists to cut off the people's veto by making a law effective immediately on the governor's approval. A competing measure does not take effect on enactment; it goes to the voters. So the emergency-legislation framework, and its two-thirds requirement, simply does not apply to a competing measure.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a competing measure?

When citizens use the initiative process to put a bill before the Legislature, the Legislature has three options: enact it as written, do nothing (in which case it goes to the voters as is), or pass its own version as a "competing measure" that appears on the ballot alongside the initiated bill. Voters then choose between them or reject both.

Why does the constitution require two-thirds for some things but not others?

The two-thirds rule shows up when the framers wanted to make it harder for a temporary majority to do something. Overriding a gubernatorial veto, taking on state debt, and changing the constitution are all heavy lifts. Enacting a competing measure is just the Legislature exercising its ordinary lawmaking power in a particular procedural channel, so the framers left it at a simple majority.

Does the two-thirds rule come back if the timing is tight?

Not by itself. A competing measure is not "emergency legislation" in the constitutional sense, because it is not put into immediate effect. It is sent to the voters, and only takes effect if approved. The 90-day clock that defines emergency legislation is therefore irrelevant.

What was this opinion actually deciding?

Only the vote threshold. The opinion's job was to confirm that the Legislature could put its own competing measure on the November ballot by a simple majority, rather than scrambling for a two-thirds vote it might not have. It did not decide the merits of the underlying initiative.

Background and statutory framework

The competing-measure provision lives in Me. Const. art. IV, pt. 3, § 18(2), the same article that creates Maine's direct-democracy framework. The text expressly contemplates that the Legislature may put forward an amended form, substitute, or recommendation to be voted on alongside an initiated measure. Other parts of the same article impose two-thirds requirements for narrow purposes (veto override, emergency legislation), and the opinion's reasoning is that the absence of any such requirement in § 18(2) is significant.

Citations

• Me. Const. art. IV, pt. 3, § 2 (gubernatorial veto override requires two-thirds)
• Me. Const. art. IV, pt. 3, § 16 (emergency legislation requires two-thirds)
• Me. Const. art. IV, pt. 3, § 17 (people's veto)
• Me. Const. art. IV, pt. 3, § 18(2) (initiated and competing measures)
• Me. Const. art. IX, § 14 (bond issue requires two-thirds)
• Me. Const. art. X, § 4 (constitutional amendment requires two-thirds)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1996/ag_19960813a.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

96-8

ANDREW KETTERER
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

August 13, 1996

The Honorable Jeffrey H. Butland
President, Maine Senate
3 State House Station
Augusta, Maine 04333-0003

Dear President Butland:

I am writing in response to your request of August 6, 1996 concerning whether, if the Legislature wishes to enact a competing measure to initiated legislation, it is required by the Constitution to do so by a two-thirds vote. Since the Legislature will be asked to enact a competing measure at an upcoming session in early September of this year, and since that session will be less than 90 days from the date of the general election in November at which the competing measure and the initiated measure would be placed before the voters, you ask whether the bill would have to be considered emergency legislation in order to be adopted in time to be put on the November ballot. For the reasons which follow, it is the opinion of this Department that a competing measure need only be enacted by a simple majority.

The enactment of a competing measure to initiated legislation is governed by Article IV, Part Third, Section 18(2) of the Maine Constitution, which provides, in pertinent part:

The [initiated] measure thus proposed, unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both.

There is no indication in this provision that the framers of the direct democracy provisions of the Maine Constitution intended that anything other than a simple majority be required for the enactment of a competing measure to initiated legislation by the Legislature. When the Constitution requires the Legislature to act by a two-thirds vote, it says so. See, e.g., Me. Const. art. IV, pt. 3, § 2 (two-thirds vote required to override gubernatorial veto); art. IV, pt. 3, § 16 (two-thirds vote required for enactment of emergency legislation, cutting off the "people's veto"); art. IX, § 14 (two-thirds vote required for enactment of bond issue); art. X, § 4 (two-thirds vote required to propose amendments to the Constitution). Since there is no such provision in the constitutional provision dealing with the enactment of competing measures to initiated legislation quoted above, there is no requirement that a competing measure be enacted by a super majority.

This conclusion is not affected by the provisions of the Maine Constitution concerning emergency legislation, Article IV, Part Third, Section 16. The purpose of such legislation is to cut off the people's veto, provided for by Article IV, Part Third, Section 17, by making emergency legislation effective immediately upon approval by the Governor rather than 90 days after the recess of the legislative session which enacted it, a period provided to permit the electors to employ the procedures set out in section 17 for the people's veto. A competing measure to initiated legislation, which is authorized by an entirely different provision of the Constitution, is not effective immediately upon enactment and therefore is not affected by the procedure for emergency legislation.

I hope the foregoing answers your question.

Sincerely,

ANDREW KETTERER
Attorney General

AK/tt

cc: Governor Angus S. King, Jr.
Speaker Dan A. Gwadosky