So far in 2021, there have been two new state supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies have both been caused by retirements.
In Colorado, Chief Justice Nathan Coats retired on January 1, when he reached the mandatory retirement age of 72. Colorado Governor Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter is Polis’ first nominee to the seven-member supreme court. In South Dakota, Chief Justice David Gilbertson retired in early January, when he reached the mandatory retirement age of 70 years old. South Dakota Gov. Kristi Noem (R) appointed Scott P. Myren to the South Dakota Supreme Court on October 28, 2020.
Currently, Maine is the only appointment state which had a vacancy in 2020 which has yet to be filled.
Three more states will see vacancies from retirement on their state supreme courts in 2021:
• Joel Bolger, June 30, 2021, Alaska
• Leslie Stein, June 4, 2021, New York
• Eugene Fahey, December 31, 2021, New York
In Alaska, the vacancy will be filled by Republican Governor Mike Dunleavy. Both of the vacancies on the New York Supreme Court will be filled by Democratic Governor Andrew Cuomo.
Ballotpedia has identified three state legislators who switched their party affiliation in December. One switched from Democrat to independent, one from Republican to Libertarian, and one from Democrat to Republican.
• On Dec. 7, Georgia Rep. Valencia Stovall announced that she was leaving the Democratic Party to join the Independent party. In a Facebook post, Stovall cited misleading, disruptive behavior from both parties during the Nov. 3, 2020 election as her reasons for switching.
• On Dec. 11, West Virginia Rep. Jason Barrett announced that he was leaving the Democratic Party to join the Republican Party. After changing his party affiliation at the West Virginia Secretary of State’s office, Barrett said, “For me to be able to be the most effective legislator I can be and really move good policy forward in West Virginia, I think that joining the Republican Party in West Virginia is a way to do that.”
• On Dec. 14, Maine Rep. John Andrews announced that he was leaving the Republican Party and joining the Libertarian Party of Maine. In a Facebook post on Dec. 12, Andrews cited House minority leader Kathleen Jackson Dillingham as his reason for leaving the party, saying, “My leaving the Republican party is a direct reflection of Kathleen Dillingham’s lack of leadership and vindictive nature. The House GOP is in severe lack of leadership.”
Ballotpedia also identified two state legislators—David Tomassoni and Thomas Bakk—who switched their partisan affiliation In November. Both are Minnesota state senators who left the Democratic-Farmer-Labor Party to form an independent caucus. Both senators cited extreme partisanship at the national and state level and a desire to work across the aisle.
Since 1994, Ballotpedia has identified 131 legislators—37 state senators and 94 state representatives—who switched parties. Seventy-two switched from Democrat to Republican, 19 switched from Republican to Democrat, and the remainder switched to or from independent or other parties.
The map below shows the number of party switches by state. The most party switches took place in Mississippi, which had 15 state legislators switch parties since 1994. Thirteen Democrats switched to the Republican party, and two Democrats became independents.
Election officials have scheduled a special election for the District 14 seat in the Maine State Senate on March 9, 2021. The seat became vacant on December 2 after the state legislature elected Shenna Bellows (D) secretary of state. There is no primary, and the filing deadline is on January 8.
Incumbent Susan Collins (R) defeated Sara Gideon (D) and five more candidates for U.S. Senate in Maine.
Collins was first elected to the Senate in 1996. In October, Roll Call named Collins the fourth-most vulnerable senator up for re-election. The top three on its list—Doug Jones (D-Ala.), Cory Gardner (R-Colo.), and Martha McSally (R-Ariz.)—lost their re-election bids.
Collins and Gardner were the two Republican senators up for re-election this year in states Hillary Clinton (D) won in the 2016 presidential election. Joe Biden (D) is the projected winner of Colorado this year. He’s projected to have won Maine’s statewide electoral votes and the 1st Congressional District’s electoral vote, while Maine’s 2nd District electoral vote remains uncalled.
Thirty-five Senate seats were up for election, and four races remain uncalled. Democrats have flipped two seats and Republicans have flipped one. Democrats needed to win a net four seats to win control of the chamber; a net gain of two seats or fewer for Democrats, or a net gain for Republicans, would result in the chamber retaining its Republican majority. A net gain of three seats for Democrats would result in control of the chamber being split 50-50, with the vice president having the tie-breaking vote.
Incumbent Jared Golden (D) defeated Dale Crafts (R) and write-in candidates Daniel Fowler (D) and Timothy Hernandez (D) in the general election for Maine’s 2nd Congressional District.
Golden was first elected in 2018, defeating incumbent Bruce Poliquin (R) 50.6% to 49.4%. The election was the first U.S. House election to be decided via ranked-choice voting and the first time an incumbent had been defeated in the district since 1916.
As in 2018, this year’s election made use of ranked-choice voting, a system in which voters rank their preferred candidates rather than voting for a single candidate. If no candidate is the first choice of a majority of voters, the bottom-placing candidate is eliminated and their votes distributed to their voters’ next choice. The process continues until one candidate receives a majority of votes.
This was one of 30 districts Democrats were defending this year that Donald Trump (R) had carried in the 2016 presidential election. That year, he defeated Hillary Clinton (D) 51% to 41% in the district.
In addition to electing their next representative on Nov. 3, two battleground U.S. House districts will also decide which presidential candidate gets one of their state’s Electoral College votes.
While 48 states give all their electoral votes to the statewide winner of the presidential contest, Maine and Nebraska distribute some of their electoral votes to the winners of each congressional district. Each state awards two of its electoral votes to the statewide presidential election winner. Maine distributes its two remaining electoral votes to the winner(s) of its two congressional districts. And Nebraska distributes its three remaining electoral votes to the winner(s) of its three congressional districts.
Maine’s 2nd and Nebraska’s 2nd are two of the 41 battleground U.S. House races Ballotpedia is following.
Incumbent Jared Golden (D), Dale Crafts (R), and write-in candidates Daniel Fowler (D) and Timothy Hernandez (D) are running.
Golden was first elected in 2018. He defeated incumbent Bruce Poliquin (R) 50.6% to 49.4%. That was the first general election in Maine for which ranked-choice voting was law. It was also the first congressional election in U.S. history to use ranked-choice voting to decide the winner.
The 2nd District is one of 30 Democratic-held U.S. House districts that Donald Trump (R) won in the 2016 presidential election.
• Trump defeated Hillary Clinton (D) 51% to 41% in the 2nd District. Poliquin won the House race 55% to 45% that year.
• Barack Obama (D) won the district in the 2012 and 2008 presidential elections with 53% and 55%, respectively. Mike Michaud (D) won the House elections those years.
Three independent election forecasters rate the 2020 House race Likely or Solid Democratic.
Incumbent Don Bacon (R), Kara Eastman (D), and Tyler Schaeffer (L) are running. The race is one of 56 U.S. House rematches from 2018. In 2018, Bacon defeated Eastman 51% to 49%. Bacon defeated incumbent Brad Ashford (D) in 2016, 49% to 48%.
Presidential election results in recent cycles were as follows:
• Trump defeated Clinton 48% to 46% in the 2nd District in 2016.
• In 2012, Mitt Romney (R) defeated Obama 53% to 46% in this district. In 2008, Obama defeated John McCain (R) 50% to 49%. Lee Terry (R) won the House elections both years.
Three election forecasters rate the 2020 House race a Toss-up.
All 435 seats in the House are up for election. Democrats currently have a 232 to 198 majority over Republicans in the chamber.
On September 8, Maine Secretary of State Matt Dunlap (D) announced that general election ballots will be printed with ranked-choice voting for president after the Maine Supreme Judicial Court stayed a lower court’s decision on a veto referendum. “Because of Federal deadlines regarding providing printed ballots to military and overseas citizens abroad, we must tell the printers to begin their work today,” said Dunlap.
The Maine Republican Party is behind a veto referendum to overturn Legislative Document 1083 (LD 1083), which established ranked-choice voting for presidential primaries and general elections. Under LD 1083, Maine is slated to use ranked-choice voting for the presidential election on November 3, 2020.
On June 15, proponents of the veto referendum filed 72,512 signatures. At least 63,067 of the signatures needed to be valid. On July 15, Dunlap announced that his office found 61,334 signatures to be valid—1,733 signatures below the requirement. Dunlap later reinstated 809 signatures from the town of Turner, Maine. A successful signature drive would have suspended the law until voters decided the law’s fate, meaning ranked-choice voting would not have been used for the presidential election on November 3, 2020.
Proponents sued Dunlap in the Cumberland County Superior Court, and Judge Thomas McKeon ruled that Dunlap needed to count an additional 988 signatures.
The Maine Constitution states that a “Circulator must appear on the voting list of the city, town or plantation of the circulator’s residence as qualified to vote for Governor….” According to Judge McKeon, Dunlap was wrong to interpret this constitutional language as requiring circulators to be registered to vote while collecting signatures. Instead, circulators being registered to vote at the time of signatures submission, regardless of whether the circulators were registered while collecting signatures, was sufficient. Due to McKeon’s ruling, the use of ranked-choice voting was effectively suspended for the presidential election.
Dunlap appealed the decision to the state Supreme Judicial Court, which stayed Judge McKeon’s decision. The Supreme Judicial Court has not yet decided the merits of the case. “Today’s ruling has the effect of leaving in place the original determination of the Secretary of State that the people’s veto effort did not have sufficient signatures…,” according to the secretary’s office.
Forgoing a final ruling from the state Supreme Judicial Court, Maine will be the first state to use ranked-choice voting in a presidential election. Maine was also the first state to establish a statewide system of ranked-choice voting following the voter approval of Question 5 in 2016. In 2020, voters in Alaska and Massachusetts will vote on ballot measures to adopt ranked-choice voting.
On August 24, a Maine Superior Court ruled that voters will decide a veto referendum on a law that established ranked-choice voting (RCV) for presidential primaries and general elections. Maine was slated to use RCV for the presidential election on November 3, 2020. Since the veto referendum qualified for the ballot, however, the law is suspended until voters decide to either uphold or repeal it. Therefore, RCV will not be used to elect the president in Maine this year.
The Superior Court’s ruling came after Secretary of State Matt Dunlap (D) determined that not enough signatures were valid to place the referendum on the ballot. Judge Thomas McKeon disagreed with Dunlap’s interpretation of a constitutional provision, which states that circulators’ names must appear on voter registration rolls. Dunlap invalidated 988 signatures from two circulators, also known as signature gatherers, who were not registered to vote while collecting signatures. However, the two circulators were registered to vote when signatures were submitted to the state for review. According to Judge McKeon, a circulator being registered at the time of signature submission, rather than while collecting signatures, was sufficient to meet the constitutional requirement. Dunlap could appeal the court’s decision to the Maine Supreme Judicial Court.
In 2019, the Maine State Legislature passed the bill that expanded RCV to presidential elections. Gov. Janet Mills (D) held LD 1083 until 2020. By holding the bill until the next legislative session, LD 1083 did not go into effect until after the state’s presidential primary on March 3, 2020.
The Maine Republican Party is backing the veto referendum campaign, which is known as Repeal RCV. Through August 18, Repeal RCV had raised $706,410, including $639,430 from the Maine GOP and $50,000 from Gary Bahre and Robert Bahre. Demi Kouzounas, chairperson of the state GOP, is also chairperson of Repeal RCV.
The veto referendum would be the third RCV ballot measure in Maine since 2016. Voters approved Question 5, which established a first-in-the-nation statewide system of RCV, in 2016. In 2017, the legislature passed a bill that was written to postpone and repeal RCV unless the legislature referred and voters approved a constitutional amendment. The Committee for Ranked-Choice Voting, which sponsored Question 5, launched a veto referendum campaign to overturn LD 1646. On the ballot as Question 1, the veto referendum was approved with 53.9 percent of the vote. Therefore, LD 1646 was repealed and RCV remained in effect, except for general elections for state legislative and executive offices. The Committee for Ranked-Choice Voting is again seeking to preserve RCV and launched a PAC, which received $52,570 through August 18, to oppose this year’s referendum.
At the election on November 6, 2018, ranked-choice voting (RCV) was used for the first time in a general election. Both Sen. Angus King (I) and Rep. Chellie Pingree (D) won their respective seats without the need for ranked-choice tabulations. In Maine’s 2nd Congressional District, the initial vote count showed that incumbent Bruce Poliquin (R) had received 46.3 percent of the vote and challenger Jared Golden (D) received 45.6 percent of the vote. Independents received 8.1 percent of the vote. On November 15, 2018, Dunlap announced that after the lowest vote-getters were eliminated and votes were reallocated, incumbent Rep. Poliquin received 49.4 percent of the vote and challenger Golden received 50.6 percent of the vote. The race was the first in U.S. history where ranked-choice voting was used to decide a congressional election.
In November, voters in Alaska and Massachusetts will decide ballot measures to adopt RCV as well. Voters in Arkansas could also vote on a RCV measure, pending a judicial ruling.
On August 13, 2020, the Maine Supreme Court ruled in Avangrid Networks, Inc. v. Secretary of State that a ballot referendum scheduled to appear on the November 2020 ballot was an unconstitutional violation of state separation of powers principles. The judges held that the referendum did not meet the requirements of the state constitution for inclusion on the ballot because, in their words, “it exceeds the scope of the people’s legislative powers” under the Maine Constitution.
The referendum aimed to overturn a decision by the Maine Public Utilities Commission (PUC) to give a company permission to build a high-voltage power line to deliver electricity from Canada. The Maine Supreme Court argued that it had the power to review the constitutionality of the referendum before the November election to determine whether it would be a proper exercise of the people’s legislative authority.
The court ruled that the referendum was not within the legislative power of the people of Maine because it would be an exercise of executive or judicial power instead of legislative. The court wrote that the referendum’s “purpose and effect is to dictate the Commission’s exercise of its quasi-judicial executive-agency function in a particular proceeding.” The court added that the referendum “would interfere with and vitiate the Commission’s fact-finding and adjudicatory function—an executive power conferred on the Commission by the Legislature.”
While the legislature has the power to limit the legislative functions and authority of the PUC, the court ruled that it does not have the power to require the PUC to overturn and reverse a particular administrative decision that it had made. Since the ballot referendum process is an exercise of legislative power, the court held that the same limitation applies. Under the separation of powers provision contained in the Maine Constitution, no one in a particular branch of government may exercise the powers that belong to the other branches of government.
The court ruled that since the referendum did not propose legislation it should not appear on the November 2020 election ballot.
To learn more about the referendum and separation of powers, see here:
On August 13, the Maine Supreme Court blocked from the ballot a citizen initiative designed to reverse a certificate required for a transnational transmission line project. The court ruled that the measure violated the “procedural prerequisites for a direct initiative” found in the Maine Constitution. According to the Supreme Judicial Court, the Maine Constitution “requires that a citizens’ initiative constitute legislative action,” and the ballot initiative “exceeds the scope of the people’s legislative powers…”
The ballot initiative would have required the Maine Public Utilities Commission (PUC) to reverse an order made on May 3, 2019, that provided the New England Clean Energy Connect (NECEC) transmission project with one of the certificates needed before construction could begin. The NECEC transmission project was designed to cross about 145 miles in Maine, from the state’s border with Quebec to Lewiston, and transmit around 1,200 megawatts from Hydro-Québec’s hydroelectric plants in Quebec to electric utilities in Massachusetts and Maine.
Avangrid Network, Inc., the parent firm of Central Maine Power, sued Secretary of State Matthew Dunlap (D) on May 12, 2020. Avangrid argued the ballot initiative was not legislative in nature and instead was designed to exercise executive and judicial power. The Supreme Judicial Court agreed with Avangrid, stating that the ballot initiative would interfere with PUC’s executive power to make a decision—something that legislation, including citizen-initiated legislation, cannot do according to the ruling. According to the Supreme Judicial Court, the ballot initiative was “executive in nature, not legislative,” because legislation can define an agency’s functions and authority but cannot “vacate and reverse a particular administrative decision.”
Avangrid and Central Maine Power provided $10.60 million to the campaign against the ballot initiative. H.Q. Energy Services (U.S.) Inc., a subsidiary of Hydro-Québec, provided an additional $6.33 million. On July 29, 2020, 25 current and former state legislators sent a letter to Quebec Premier François Legault and Hydro-Québec CEO Sophie Brochu regarding “Hydro-Quebec’s political campaign aimed at influencing the outcome of a citizen-initiated ballot measure this November.” Hydro-Québec is a corporation owned by the government of Quebec, which, according to the legislators, gave the Quebec government and residents a “financial interest in the outcome of a Maine election.” Serge Abergel, the director of external relations for Hydro-Québec, responded that Hydro-Québec should be allowed to provide information to voters after spending years to obtain permits.
The No CMP Corridor PAC, which was leading the campaign in support of the ballot initiative, had the support of Mainers for Local Power. Mainers for Local Power received $688,665 from Calpine Corp., which owned a natural gas-fired plant in Westbrook, Maine, and $750,756 from Vistra Energy Corp., which owned a natural gas-fired plant in Veazie, Maine.
Proponents of the ballot initiative collected 75,253 signatures for the ballot initiative between October 2019 and February 2020. On March 4, 2020, Dunlap announced that 69,714 of the submitted signatures were valid, surpassing the required minimum of 63,067.
The ballot initiative was one of two potential November 2020 citizen-initiated measures in Maine. The other citizen-initiated measure is a veto referendum to repeal ranked-choice voting for presidential elections. Secretary of State Dunlap announced that not enough signatures were valid for the veto referendum to appear on the ballot. Proponents of the veto referendum, however, are challenging Dunlap’s decision in Superior Court.