AGO 2011-01.

• Case Date: June 16, 2011
• Court: Maine

Maine Attorney General Opinions 2011. AGO 2011-01. June 16, 20112011-01Senator Barry J. HobbinsSenator Justin Alfond 3 State House Station Augusta, Maine 04333-0003Dear Senator Hobbins and Senator Alfond: I am writing in response to your letter of June 10,2011, in which you inquired whether the provisional balloting system set forth in LD 1376, entitled "An Act to Preserve the Integrity of the Voter Registration and Election Process," would impose a mandate on municipalities pursuant to Article IX, section 21 of the Maine Constitution and thus require state funding of 90% of those costs or enactment by a two thirds vote of all members in each chamber. For the reasons explained below, it is the opinion of this Office that this legislation does not constitute a mandate within the meaning of the constitutional provision. Article IX, section 21 provides in its entirety as follows:

For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local-unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the votes of 2/3 of all members elected to each House. This section must be liberally construed.

In order to qualify as a "mandate" under this provision, an action of the Legislature must no t only require units of local government to expand or modify their activities, but that expansion or modification must "necessitate additional expenditures" of local revenue. Even if legislative action fits this definition of.a mandate, the state is not required to fund "costs incurred by local units of government to comply with a federal law or regulation ... except to the extent that the State imposes requirements or conditions that exceed the federal requirements." 30-A M.R..S. § 5685(3)(D). This provision of the implementing statute is often referred to as the "federal mandate exception.'' SUMMARY While L.D. 1376 does require municipalities to modify and/or expand their activities with respect to voter registration, absentee ballots and provisional ballots, these modifications do not appear to necessitate additional expenditures of local revenues. Instead, it appeal's likely that the legislation will result in a net decrease in expenditures of local revenues for voter registration and balloting activities during the last few days before and including election day. Accordingly, we conclude that L.D. 1376 does not meet the second part of tire mandate test. In addition, we conclude that, certainly with respect to statewide primary and general elections, and most likely with respect to all elections conducted under Title 21 -A, the federal mandate exception in 30-A M.R.S. § 56S5(3)(D) applies. ANALYSIS I. Expansion or Modification of Municipal Government Activities L.D. 1376 requires municipalities to modify their activities with respect to voter registration and issuance of absentee ballots in several ways. The bill eliminates in-person voter registration on .election day and during the two business days before ejection.day. L.D. 1376, §§ 3 and 4. It also prohibits the issuance of absentee ballots after the third business day before the - election (i.e., after the close of business on the Thursday before election day) unless the voter who wishes to vote absentee states that he or she (a) will be.unexpectedly absent from the municipality during the entire time the polls are open on ejection day, (b) has a physical disability or incapacity or illness that makes them unable to leave home or a treatment facility on election day, or (c) is a resident of a coastal island ward or precinct and is unable to travel to the polls on election day. Id. § 23 (repealing and replacing 21-A M.R.S. § 753-B(2)). The bill also modifies, and-arguably expands, the activities of municipal election officials' by adding a new provision in Title 21-A on provisional balloting. See L.D. 1376, .§ 21. (enacting 21-AM.R.S. § 673-A). It requires the issuance of a provisional ballot to" any voter whose name does not appear on the incoming voting list but who appears at the polls on election day to vote and declares that he or she is already a registered voter in that jurisdiction. Id. § 673-A(l)7 The .steps required when such a voter...