A closer look at Pa.’s fraught 2021 ballot questions | Bruce Ledewitz

May 12, 2021 6:30 am

On May 18, Pennsylvania voters will not only participate in party primaries for municipal and judicial offices but will also decide four ballot questions, each one of which raises issues the average voter would not foresee.

Bruce Ledewitz (Capital-Star file)

Question 4 is a statewide referendum on whether fire departments and emergency medical services with paid employees should be permitted to participate in an already-existing loan program that allows certain volunteer services to obtain loans to update equipment.

The issue here is why a statewide referendum is on the ballot at all. Unlike many other states, Pennsylvania generally does not legislate by popular vote. We leave legislative decisions to the General Assembly.

This ballot question is a good example of why such popular decision-making is usually a mistake. The average voter has no way to know whether existing funds are adequate to support this additional demand. We can only place our faith in the legislators who put this matter on the ballot.

This question is on the ballot only because the underlying statute requires referendums. Hopefully, that statute will eventually be rewritten to comply with normal legislative norms.

The other three ballot questions are proposed amendments to the Pennsylvania Constitution. The last of these, Question 3, would ban denial of rights under the law on the basis of race or ethnicity.

People probably thought that race discrimination was already prohibited by the state constitution, and indeed there are several existing constitutional provisions that would do so if such lawsuits were brought.

The Capital-Star’s 2021 Voters’ Guide: Everything you need to know about Pa.’s May 18 election

The reason such state constitutional cases are generally not brought is that federal constitutional law, specifically the Equal Protection Clause of the Fourteenth Amendment, already bars race discrimination and does so in a way that leaves little room for state constitutional additions. The Equal Protection Clause prohibits only intentional racial discrimination and does not allow remedies for structural racism.

As an illustration, reparations for descendants of slaves would be constitutional. However, reparations for people of color in response to general societal racial discrimination would violate the federal constitution.

If proponents of this state constitutional amendment are hoping that it might allow the Pennsylvania courts to effectively address structural racism, they are likely to be disappointed.

Even if, for example, a Pennsylvania court were to find, under this newly adopted provision, that neighborhood public schools perpetuate racial segregation, federal constitutional law would prohibit any effective remedy for the violation.

On the other hand, fears that this provision, if adopted, would make affirmative action more difficult, also are unfounded. Affirmative action is mostly already unconstitutional and the conservative majority on the U.S. Supreme Court will probably soon eliminate what little is left.

So, the probable effect of voting yes on Question 3 and adopting this constitutional provision is no change at all in existing law.

What you need to know about the 2021 Pa. primary ballot questions

The remaining two proposed constitutional amendments both aim, in different ways, to reverse the decision of the Pennsylvania Supreme Court in the Wolf v. Scarnati case last July.

In that case, a divided Pennsylvania Supreme Court found that the legislature’s effort to end Gov. Tom Wolf’s emergency pandemic declaration by a resolution was ineffective.

Though the Emergency Act appeared to give the General Assembly precisely that authority, Justice David Wecht wrote for a four-Justice majority that the Emergency Act actually, though silently, requires that any such legislative resolution be presented to the Governor for a potential veto.

The reason Wecht gave for this peculiar rewriting of the Emergency Act was that Art. III, Section 9 of the Constitution required such presentment to the Governor. So Wecht implied presentment in the statute rather than find the Emergency Act unconstitutional, as Justice Kevin Dougherty in dissent would have done.

The other approach in the case was a dissent written by then-Chief Justice Thomas Saylor joined by Justice Sallie Mundy, the two Republicans on the court.

Like Wecht’s majority opinion, Saylor also would have saved the Emergency Act, but would have done so by holding that Art. III, Section 9 did not require presentment of a resolution ending an emergency declaration to the Governor.

One of the proposed constitutional amendments, Question 1, adds emergency declarations to the list of exceptions to presentment in Art. III, Section 9, thus adopting the Saylor position and effectively overruling Wolf v. Scarnati.

Since approving Question 1 would presumably return the unilateral power to end emergency declarations to the General Assembly, where the Emergency Act had originally placed it, it should have been viewed as resolving the problem.

Why then did the Republican majority in the legislature think it necessary to propose another amendment, Question 2, adding a new provision to Art. IV of the Pennsylvania Constitution setting forth the procedures for emergency declarations?

The only reason I can think of is that the amendment of Art. IV was proposed out of fear that the Pennsylvania Supreme Court might ignore the constitutional change brought by Question 1 and refuse to overturn Wolf v. Scarnati.

This is not an altogether fanciful concern. The court has, in the past, ignored constitutional amendments plainly intended to limit its powers.

Unfortunately, the legislative correction in the proposed constitutional amendment of Art. IV is convoluted and dangerous.

Question 2 would end any emergency declaration by a governor in 21 days unless extended by the General Assembly.

This is problematic not only because 21 days is obviously too short. The Emergency Act currently provides for 90 days. But also because it allows inaction by the General Assembly to end an emergency declaration rather than requiring an affirmative vote, as the current Emergency Act does.

Such legislation by inaction invites irresponsibility. By doing nothing the General Assembly could disown responsibility for any consequences that follow a termination of an emergency declaration.

Perhaps even worse than this flaw is that the amendment proposed in Question 2 bars any new emergency declaration by a governor if based on “the same or substantially similar facts and circumstances,” without a supporting resolution by the General Assembly.

This language would involve the courts in the worst possible scenarios. One can imagine Governor Wolf claiming that a variant of the virus constituted a new circumstance and the legislature responding in court that the variant was substantially the same as the original virus. An emergency is not the time for a lawsuit like that.

In addition to all this, the proposed amendment appears to require new legislation without any indication of what is supposed to happen in the interim.

With any luck, Pennsylvanians concerned to restore balance in the separation-of-powers will vote to amend Art. III Section 9 by voting yes on Question 1, but vote against adding a baroque process to Art. IV by voting no on Question 2.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page.  Listen to his podcast, “Bends Toward Justice” hereHis forthcoming book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” will be published in October.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.