News that Congressman Bruce Poliquin is not only challenging in federal court the Second District outcome but is also requesting a recount is a reminder that the conclusion of some elections seem to be never ending.
It also brings to mind the fact that some of the most important elections have yet even to occur. They happen just in the next few days. They are for Secretary of State, Treasurer and Attorney General. Soon to unfold in the State House.
In Maine, the Secretary of State’s position is one that has been filled by such notables as future governors Lewis Barrows and Kenneth Curtis.
Twelve of the last 14 years it has been held by Bar Harbor native Matt Dunlap, a former Old Town State Representative, a seat in recent years occupied by his wife Michelle Dunphy.
Maine is one of three states where the job is filled by the state legislature.
In Maine, this has ordinarily meant that a person representing the party with the most seats is likely to be elected. This has happened in nearly every case of the Secretary of State’s election except just 40 years ago. That was when Democrat Rodney Quinn benefited from a Republican defector to win election over former gubernatorial candidate Linwood Palmer even though the Republicans controlled the legislature and otherwise held their own in selecting the other officers.
The situation is a bit in contrast to that of New Hampshire where for the last 44 years Democrat William Gardner has held the position even though during most of that time the Granite State has been controlled by Republicans.
Gardner is best known nationally for his fierce strategic moves to preserve New Hampshire’s first in the nation presidential primary status.
Taking a page to some extent from Gardner’s book here in Maine has been two-term incumbent State Treasurer Terry Hayes. She has been elected twice to her position even though the Democratic party has held enough seats to elect someone else. There were just enough defections among their ranks so she was elected over incumbent Democrat Neria Douglas of Auburn in 2014 and then reelected in 2016. (Douglas was originally elected by taking Republican Bruce Poliquin’s place in 2012.)
She is running a third time but her prospects are dimmed by the fact that Democrats now have more overpowering control of the legislature than they have had in the past two elections. Thus, it is likely Democrat Henry Beck, a former state representative and lawyer from Waterville will probably prevail over her.
The election of Attorney General will certainly capture the most attention. Five candidates are vying for the Democratic nomination which will be tantamount to election.
Besides being the law enforcement officer and in some cases the chief counterweight to gubernatorial power it has also been a springboard to higher office.
Five of its occupants including most recently Gov. Brennan and Governor Elect Mills have gone on to win election as governor, six have been United States Senators and one, Nathan Clifford has, become a United States Supreme Court Justice. Two have become speakers of the U.S. House of Representatives, including one of the more powerful public figures from Maine to hold forth on the national stage, U.S. House Speaker Thomas Reed. His iron-fisted control over Congress during the 1890s was so preemptive that it won him the sobriquet of “Czar.” It is also why a treatise on parliamentary procedure he wrote, Reed’s Rules, is still relied upon as one of the leading procedural authorities in conducting public meetings. A statue commemorating him and his 6 foot 3 inch nearly 300 pound frame is one of the most prominent landmarks on Portland’s Western Promenade.
Though Maine is not alone in giving the legislature power to pick the Secretary of State and Treasurer, Maine does stand in a solitary position with respect to electing its attorney general. We are the only state where the legislature does that.
It has not, however, always been the case. When Maine became a state in 1820, the Attorney General was appointed by the Governor. (It certainly would be much to the envy of our outgoing governor, though Gov. LePage has advocated a popular election of the position.)
Indeed, in 1820, even county commissioners, county attorneys, clerks of court, sheriffs, registers of probate and various judges including judges of probate were all appointed by the governor, some even for lifetime terms.
Gradually through the 1840s and 1850s, in the aftermath of the Jacksonian democracy movement, Maine shifted to a popular election for most of these officials.
Even the so-called municipal court and “police” judges – a rough equivalent to our present district courts – would be popularly elected after 1856. The status of these switched back to a gubernatorial appointment system by 1873. Judges and registrars of probate, sheriffs, county commissioners, county treasurers and registers of deeds remain popularly elected.
The exception to this trend in favor of popular election and what makes Maine stand out is with the constitutional officers, the Secretary and Treasurer since 1820 and the Attorney General since 1856, having been the subject of legislative elections.
Our system, both in the caucuses which nominate candidates as well as in the elections by the joint convention of the legislature, requires a majority vote. There is something thus akin to instant runoff even though it is not ranked choice.
The runoff system or at least the requirement for a majority vote was most dramatically illustrated in modern times by the 1971 contest between incumbent Attorney General James Erwin, a Republican, and his Democratic challenger Waterville attorney Bruce Chandler. In the initial voting, Erwin was one vote ahead of Chandler 90 to 89. Three votes were cast for others.
Because incoming minority leader John Martin and other Democrats challenged the outcome on the grounds that the vote tabulation was not a majority and because they asserted that there were more ballots cast than there were members in attendance, a re-vote occurred. (It’s something Bruce Poliquin is also seeking in his own federal lawsuit over the Congressional race). In the second tabulation, the outcome was 92 to 88 in favor of giving Erwin, who had been most recently the GOP nominee for governor, a third term as attorney general.
Erwin’s close call at that time was significant in that even though the Republicans held a 13 vote legislative majority the result demonstrated that several in the GOP had jumped ship to vote for the Democratic candidate. In that election as in others for constitutional officers, one does not know for sure, however, who the defectors were. That is because the voting is by secret ballot.
This will also be the case in the forthcoming party caucuses and elections that soon unfold in the State House. These are ones that will be well worth monitoring not only for their immediate consequences but also for their long-term implications.
Paul H. Mills is a Farmington attorney well-known for his analyses and historical understanding of public affairs in Maine. He can be reached by e-mail: email@example.com