Activists say they plan to keep fighting for a citywide vote to create a clean elections program in Portland and are considering a legal challenge of the city’s denial.

The potential challenge comes after the city attorney determined that creating a public funding option for municipal candidates – and requiring the City Council to pay for it – would require the establishment of a formal charter commission. Based on that opinion, a majority of city councilors said Monday they could not place the question directly on the ballot as a citywide referendum.

Neither activists nor councilors, however, are interested in forming a commission to review and update the city charter, a process that could lead to more than a year of work and potentially to much bigger changes in the city’s government.

“I think it is far too early to call another charter commission,” City Councilor Belinda Ray said. “We’re not even a decade away from the decisions of the last charter commission.”

Anna Kellar, of Fair Elections Portland, the group pursuing the initiative, said the organization’s attorney is still evaluating the best route to challenge the city’s legal opinion. They are hoping to get the proposal, along with the funding requirement, on the March ballot.

“We can’t wait for a normal slow legal process,” Kellar said Tuesday morning. “We’re angry with the City Council’s decision and we’re going to keep fighting.”

Fair Elections Portland collected nearly 16,000 signatures for two ballot initiatives: To create the state’s first locally funded clean elections program for municipal candidates who limit private campaign contributions and extending ranked-choice voting to all city races, rather than just the mayor’s race.

Neither will appear on the fall ballot. The ranked-choice voting petition did not have enough valid signatures, and questions about the clean elections program and the need for a charter commission led the council to delay action past the deadline required for printing the November ballots.

At issue with the clean elections proposal is whether it would be an amendment or a major revision to the city’s charter, which lays out the city’s governmental structure. Fundamental change to that structure requires the establishment of a charter commission, consisting of council appointees and people elected by voters. An amendment that only makes a minor change can proceed directly to voters, however.

City Attorney Danielle West-Chuhta said the funding mandate contained in the clean election proposal makes it a charter revision, because it removes a fundamental power from the City Council, which sets both the city and school budgets.

Mayor Ethan Strimling urged the council Monday to ignore West-Chuhta’s legal opinion and advance the initiative as a charter amendment. Strimling said the city’s legal advice against a referendum would certainly land the city in court, whereas no one has threatened to sue if the council decided to treat the proposal as an amendment that can go directly to voters.

“I still fundamentally believe this is an amendment,” Strimling said. “The answer is right in front of us: Send it out as an amendment, which is what people were told it was going to be. There is no legal authority for us that says we can’t do that. In fact, we can.”

The only other councilor to support that approach was Pious Ali, who said he gathered signatures and told voters the petition called for a charter amendment.

Other city councilors said they were willing to work with activists to draft a new question that would qualify as an amendment and would not require a charter commission process. But that would likely lead to the removal of language requiring the council to fund the program, which advocates say is a key component.

Councilor Justin Costa said Monday that the council had few legal options. Costa said he would like to find a way for residents to vote not only on clean elections, but also on the ranked-choice voting proposal.

“I just want to be exceptionally clear that is my ultimate goal here,” Costa said. “I would like the citizens of Portland to vote on both of those items. I hope we do not, as a community, vote to establish a charter commission and go back down that rabbit hole again.”

Kellar said Tuesday the group was not interested in creating a clean elections program without a funding mandate. They said that would leave the system open to manipulation. They noted that the Maine Citizens for Clean Elections had to sue former Gov. Paul LePage to get the state’s clean elections program funded.

There is no mandate in the state constitution for the Legislature to fund the state’s clean election program. But Kellar said there’s less risk to manipulate that system, since all of the seats are up for re-election at the same time, whereas councilors serve staggered terms.

“The problem with that is the council (would be) essentially funding its own re-elections or their colleague’s re-election or potentially not funding their opponent’s re-elections,” Kellar said. “It’s putting it in their hands as a weapon rather than having it as a neutral system.”

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