AUGUSTA, Maine — Top Maine legislators are casting about for ways to thwart a highly controversial casino bid slated for the November ballot, considering the unprecedented use of a potential loophole in the state Constitution that could allow them to strike it from the ballot.
Such a move would likely prompt a lawsuit from the opaque network linked to U.S. Virgin Islands developer Shawn Scott that is behind the York County casino push and has pumped more than $4.2 million into a referendum campaign that qualified for the ballot in January.
The campaign is under scrutiny from the Maine Ethics Commission after documents filed by backers earlier this month showed that all contributions dating to 2015 — previously reported as coming from Lisa Scott, the developer’s sister — were loans from companies in Nevada and Japan.
Just the fact that lawmakers are considering moves to keep the question from the ballot — which was acknowledged by top Republican, Democratic and York County lawmakers on Friday — is indicative of the Legislature’s widespread bipartisan disdain for the casino bid.
“It’s a dramatic step and one that shouldn’t be taken lightly,” Rep. Louis Luchini, D-Ellsworth, co-chairman of the legislative committee overseeing gambling, said. “But this is just so fraudulent that I think it rises to that occasion.”
The Maine Constitution forces lawmakers to either enact a citizen initiative or send it to voters. But there may be a loophole. Under the Constitution, amended in 1907 to allow citizen initiatives, groups apply, then get signatures to qualify a question for the ballot.
After that, a bill goes to the Legislature, which is allowed to enact it as written or put a competing measure on the ballot alongside it. But lawmakers most often take no action, which sends the question directly to voters.
That’s because of a constitutional provision saying Maine voters get to decide a citizen-initiated question unless a proposal is “enacted without change by the Legislature at the session at which it is presented.”
It doesn’t say anything about whether the Legislature could vote to enact the law and then vote immediately to repeal it — a potential loophole that Luchini said he has researched for “months.”
The maneuver has never been tried in Maine.
Kristen Muszynski, a spokeswoman for Secretary of State Matthew Dunlap, said because the law doesn’t address this specific circumstance, it’s possible an initiative could be repealed after enactment like any other law.
But looking ahead to a court challenge, Tim Feeley, a spokesman for Attorney General Janet Mills, said “enacting an initiated proposal and repealing it in the same session might be looked upon with disfavor” by judges because it could conflict with the “right to legislate by initiative.”
Lisa Scott and other casino backers didn’t respond to a request for comment.
Luchini and Senate President Mike Thibodeau, R-Winterport, said they wouldn’t want this to be a precedent in Augusta, with Thibodeau saying talks are little more than “grumblings in the hall” now and legislators wouldn’t move forward without being on “solid ground” legally.
“What has transpired in this case is so far out of bounds that I think a lot of people view this as a reasonable step,” he said. “As discussions are had, we’ll see if anything happens.”
If the question gets to the ballot and passes, a York County senator wants to ban Scott from selling the rights to the casino. Scott has never been licensed to run a U.S. casino, but his specialty is backing campaigns in ways that give him exclusive rights to casinos, then selling the rights.
He persuaded Maine voters in 2003 to allow slot machines at the Bangor Raceway, then sold the rights for $51 million to Penn National Gaming, which now runs Hollywood Casino. In 2002, he got a similar $120 million windfall in Louisiana.
A lobbyist for a Scott company said at a legislative hearing in March the backers plan to do that again here. But Sen. Ronald Collins, R-Wells, is looking to bar Scott from selling the rights, offering a bill that would ban entities seeking casino rights in Maine from selling operations for 10 years.
On Friday, Collins said that “if there’s that kind of money floating around, it belongs in state coffers.” Nine of 10 legislative leaders on the Legislative Council allowed Collins ’ bill to be submitted this month, well after the normal deadline for bills.
If both parties and the local state senator oppose the casino, it doesn’t bode well for backers. That’s true even if any legislative Hail Mary fails.