Apparent biases at work in creating pro-ConCon statement
Once per decade, Alaska’s constitution grants the people the right to call a constitutional convention via a statewide referendum. The democratic function of the referendum is to prevent the Legislature from having monopoly proposal power over constitutional amendments. This fall the referendum is next on the ballot.
Opponents, led by Defend Our Constitution, a who’s who of Alaska’s insiders, fear the referendum might pass this fall because preserving Alaska’s Permanent Fund is highly popular but would require constitutional change the Legislature has refused to pass. (Other natural issues for a convention, such as legislative redistricting, transparency, ethics, election administration and term limits, lack the same degree of salience for voters.)
Let’s assume Defend Our Constitution’s political worries are well-grounded and Alaskans vote to call a convention. Would the legislature enable one? Consider the legislature’s incentives and opportunities to do nothing.
On incentives, state legislative bodies hate conventions and have a track record of doing everything in their power to derail one not only before but after a convention call is passed. The reason is that legislatures—including their special interest allies that, by definition, excel in influencing them—fear losing their veto power over popular constitutional amendment proposals.
Beginning in the late 18th Century, Congress began requiring U.S. statehood constitutions to be both written and drafted by an elected body separate from a state’s legislature. This requirement is because a state legislature would have an incentive to use exclusive constitutional proposal power to entrench and expand its own power against competing branches of government and the people.
Fourteen states, including Alaska, use the periodic state constitutional convention referendum to break the legislature’s otherwise exclusive proposal power over future amendments. Eighteen states, but not Alaska (which only has the statutory initiative–and a weak one) use the constitutional initiative for this purpose.
On do-nothing opportunities, Alaska’s framers were determined that both the convention call and subsequent delegate election be “ministerial duties” of the government so that the legislature could not derail them. But they only effectively succeeded in making the convention call a ministerial duty.
The framers knew that legislatures had derailed popularly approved convention calls by not passing legislation enabling a delegate election. To ensure a delegate election would be enabled, they stipulated that if the legislature failed to enable one then delegate election rules would default to those used in their own 1955 delegate election.
Alas, that backstop has become dysfunctional, partly because in the 1960s the U.S. Supreme Court mandated one-person, one-vote for statewide elections, and the districts used for convention delegates in 1955 don’t meet that requirement.
In retrospect, the delegates should have modeled delegate districts on legislative ones, thus satisfying the one-person, one-vote requirement. But they didn’t, thus enhancing the legislature’s opportunity to subvert its ministerial duty.
The framers’ failure is understandable. They faced a tight 75-day deadline to finish proposing a statehood constitution and lacked time to thoughtfully discuss this provision in their convention’s closing days.
This problem has two solutions that don’t assume the legislature will act in good faith:
First, use the courts as a backstop. This is akin to using courts to draw legislative district lines when a legislature passes a gerrymander.
Second, use Alaska’s statutory initiative to pass a modern enabling act that solves the problem.
In either case, the easiest to implement solution would be to elect delegates with the same districts, open primaries, ranked-choice voting, campaign finance disclosure, and dates as is currently mandated for Alaska’s House of Representatives. New Hampshire’s Constitution solves the problem in only ten words: “Delegates to be elected in the same manner as representatives.”
Doing so would preserve the key democracy and ethics enhancing feature of the convention: that convention delegates must immediately leave office after proposing constitutional reforms for voter approval or rejection.
Of the choice between courts and statutory initiative, I prefer the latter because courts prefer not to enter “the political thicket,” especially on issues where they would make an enemy of a bipartisan majority of legislators. But getting a statutory initiative on the ballot not only requires pro-action—a political trait in notoriously short supply—but is even more expensive and difficult than pursuing litigation.
Leading constitutional scholars argue that the democratic legitimacy of a constitution substantially depends on its provisions for future amendment, including that the legislature is not granted exclusive proposal power over such amendment. Until Alaska fixes its framers’ inadvertent blunder in drafting this part of its constitution, its people should question their constitution’s democratic legitimacy.
J.H. Snider edits The Alaska State Constitutional Convention Clearinghouse and writes about the most difficult democratic reform problems.
Source: Snider, J.H., Derailing Alaska’s Constitutional Convention Referendum, Fairbanks Daily News-Miner, Feb. 20, 2022. For a copy of the article in the format of a news clipping, click here.