To engage the ‘will of the voters,’ you also have to empower them | Opinion
The bad faith use of the constitutional amendment process reduces the power of voters under the guise of increasing it
The Pennsylvania House (Capital-Star photo by Stephen Caruso)
By Wesley R. Payne IV
If some members of the Pennsylvania General Assembly have their way, voters in the Commonwealth could soon be casting ballots on constitutional amendments that would reduce the terms of judges and state Supreme Court justices, allow the Legislature to decide how much Pennsylvania judges are paid, and limit the Supreme Court’s rulemaking abilities and its authority to draw Congressional maps.
And that’s just a sampling of proposed constitutional amendments related to the judiciary – there are also a host of other proposed amendments in various stages in Harrisburg related to expanding the General Assembly’s power to reject executive orders, lowering the voting age to 16, creating ranked-choice voting in Pennsylvania, establishing that there is no right to an abortion under Pennsylvania law and requiring identification to vote.
Since Pennsylvania’s current constitution went into effect in 1968, there have been 49 proposed amendments that reached voters. Only six were rejected and just 14 of those amendments appeared on ballots during presidential or gubernatorial election years, which typically attract higher voter turnout.
In the past year and a half, Republican and Democratic legislators have proposed more than 70 changes to the state constitution. As the party that controls the legislature but not the governor’s mansion, Republication lawmakers are increasingly adopting the practice as a way to enact policies while avoiding Gov. Tom Wolf’s veto pen.
But this tactic should be of concern to all Pennsylvania voters, no matter what their political views. When employed in bad faith, this practice dramatically reduces the power of voters under the guise of increasing it. At the same time, it could significantly change how the state government works without sufficient public discussion or thought given to how those changes could be realistically implemented, or what the resulting implications would be.
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In order to appear on the ballot, proposed constitutional amendments have to pass in two consecutive sessions of the General Assembly. One of the measures that could appear before voters in November is a bill (HB38) sponsored by Rep. Russ Diamond, R-Lebanon, which would create representative districts drawn by legislators for statewide appellate judges.
This measure would significantly curtail the power of the voters. Currently, voters have the opportunity to cast ballots for candidates running for every seat on the three appellate courts. If this measure passes, voters would have a say in just 3 of 31 appellate court seats. Instead of casting a ballot for a statewide judgeship nearly every year, voters would only do so once a decade.
This proposal and other constitutional amendments introduced in the General Assembly would threaten the independence of the judiciary, which is critical to preserving our democracy and to promoting fair and equal access within the justice system. The Philadelphia Bar Association worked to educate and mobilize voters on Diamond’s proposal, generating more than 1,200 letters to legislators speaking against the bill.
Perhaps of greatest concern, some legislators are working to limit any type of healthy debate about proposed constitutional amendments. In January, House Republicans introduced an omnibus bill of four constitutional amendments that would be listed separately on the ballot in 2023 if passed. The measures include modifying how the lieutenant governor is elected, requiring “government-issued” ID to vote, giving the state auditor the role of reviewing the accuracy of elections and voter rolls, and allowing the legislature to override a gubernatorial veto with a simple majority instead of the current two-thirds margin.
With this act of apparent efficiency comes significant loss of transparency: Legislators can no longer debate, change or consider proposed amendments separately – instead, it’s all or nothing. There is less opportunity for public comment or discussion; in fact, this tactic makes it far easier for amendments to be pushed through without groups who would be directly impacted by them knowing about it until it’s too late.
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Moreover, these amendments are typically presented during “off-year” elections, which means important constitutional questions are being decided by a small number of Pennsylvania residents.
For example, voters approved three constitutional amendments during the 2021 primary – two that curtailed the governor’s emergency powers and one that barred discrimination based on race or ethnicity. But only about 25 percentof registered voters actually cast a ballot in that election. By comparison, a record 70.93% of Pennsylvanians voted in November 2020, which included a presidential election.
If legislators truly believe in the amendments they are proposing, then why not try to give them the maximum amount of public exposure and discussion?
Why not, as our Association’s Board of Governors recently proposed in a resolution on this practice, put constitutional amendments on the ballot only during the November general election to maximize voter participation?
According to the United Nations, trust in the government declined from 73 percent in 1958 to just 24 percent in 2021. Bypassing the legislative process, weakening the system of checks and balances that is inherent to the success of our democracy and otherwise trying to enact policy in the shadows will only further undermine people’s trust in public institutions.
If legislators are truly interested in engaging the “will of the people” to determine what’s in the state’s constitution then they must also make a commitment to empower those people.
Wesley R. Payne IV is the chancellor of the Philadelphia Bar Association.
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