Alaska’s Overturned 1970 Constitutional Convention Call
Introduction
In 1970, Alaskans voters approved calling a state constitutional convention. This was the first time the decennial referendum was on the ballot since Alaska’s statehood constitution came into effect in 1959. The referendum also took place at the tail end of America’s last great era of state constitutional conventions.
The opponents of the convention brought suit, claiming that the Lt. Governor had biased the wording of the ballot language so as to cause Alaskans’ to approve the referendum. Two years later, Alaska’s supreme court agreed in Boucher v. Bomhoff, 495 P.24 77 (1972), thus overturning the election result.
Ever since, leading opponents of calling a referendum have claimed that Alaskans have never approved calling a convention in response to the mandated decennial referendum. The point of making this claim is that since previous generations of Alaskans have considered the question and decided against calling a convention, you can take it on their authority that calling one is a bad idea. Thus, you don’t have to exert any effort deciding the merits of the issue.
Alas, the Court’s 1972 ruling should be considered highly controversial, given the type of assumptions and double standards it made. It’s very rare for a court to overturn an election. It’s even rarer to do so on such tenuous grounds. And it’s a disaster for democratic constitutionalism when judges use a much lower (and insider advocated) standard for overturning a convention call referendum result than for any other type of election result.
The excerpts below and my discussion of their claims was written quickly and should be read as merely suggestive. A more fundamental point was not even raiased in the claims the court addressed. That point is why would the referendum even be on the ballot and cause extensive debate in the press if the supposedly biased text on the ballot implied that the constitution mandated convening a convention rather than merely asking Alaskans whether they wanted to call one.
–J.H. Snider, Editor
Alaska State Constitutional Convention Clearinghouse
Two Notable Excerpts from Boucher v. Bomhoff, 495 P.24 77 (1972) overturning the 1970 yes vote:
Claim #1) Ballot wording inconsistent with the constitutionally required wording:
[A]rticle XIII, section 3, of the Constitution of Alaska, provides in part that:
If during any ten-year period a constitutional convention has not been held, the lieutenant governor shall place on the ballot for the next general election the question: ‘Shall there be a Constitutional Convention?’
In implementation of this provision the legislature provided in AS 15.15.030(9) that:
The general or special election ballot shall be designed with the question of whether a constitutional convention shall be called placed on the ballot in the following manner: ‘Shall there be a constitutional convention?’ Provision shall be made for marking the question ‘Yes’ or ‘No.’
Despite the explicit requirement of article XIII, section 3, as to the language of the question, and specification of the form of the ballet provided [**3] for in AS 15.15.030(9), for some unexplained reason the ballot pertaining to the constitutional convention referendum proposition was worded to read and appeared on the November 3, 1970, ballot as follows:
As required by the Constitution of the State of Alaska Art. XIII, Section 3,
At the general election held on November 3, 1970, the proposition set out above received an affirmative vote of 34,911 to 34,472. Thereafter, appellees brought suit to enjoin the calling of the constitutional convention and to require that the proposition be put to the electorate at the next general election without the prefatory language “As required by the Constitution of the State of Alaska, Art. XIII, Section 3.” The basis of the appellees’ complaint was that the prefatory language introduced a bias in the election because the prefatory phrase suggested that what was required by article XIII, section 3, of the constitution was the convention rather than the referendum.
Concerns about the claim:
- The court allowed the apparent incompetence of public officials who may have disliked the institution of the periodic state constitutional convention referendum to overturn a referendum result in favor of calling one when there was ample opportunity before the election to either bring a suit seeking clarification of the ballot wording or provide supplementary education materials clarifying to the electorate that the state constitution did in fact mandate that this question be on the ballot.
- Alaska’s Division of Elections has a track record of printing and distributing pro and con ballot measure information biased against calling a periodic constitutional convention referendum (e.g., see the 2002 and 2012 State of Alaska Official Election Pamphlet mailed to every Alaskan voter), so it’s a double standard to argue that only pro but not con information constitutes bias worthy of overturning an election. The evidence that the ballot was in fact biased is covered in claim #2 below.
- There are many other sources of “bias” in ballot design, such as the order of candidates and ballot measures listed on a ballot (e.g., those listed near the top will tend to have higher vote totals) and the specific type of election machinery used (e.g., some technologies used in different precincts systematically differ in their propensity to induce overvotes and undervotes), so it was arguably inconsistent when the court elevated some types of bias and not others as worthy of overturning an election.
- Following the precedent set in many other direct democracy cases, the court need not have weighed the interests of the constituent power (the people) equally with or less than those of the constituted powers (the government and those who excel at influencing the government). Instead, it could have given a so-called liberal interpretation of the people’s rights; that is, not nitpicked over minor procedural irregularities in the qualification of popular initiatives, just as it doesn’t do for legislature initiated measures. In broader democratic theory terms, it could have given the benefit of the doubt to constituent interests as opposed to constituted interests, given the strong interest of constituted powers in preventing the awakening of the constituent power, the awakening of which is what a periodic state constitutional convention was largely designed to do. The court’s suppression of constituent power may have been good court politics but bad jurisprudence. The theory of “legal realism” holds that judicial decision making may be heavily influenced by politics for certain types of issues. For an article in the popular press illustrating legal realism, see Liptik, Adam, Judges Mix With Politics, New York Times, Feb. 22, 2003. For a book-length scholarly treatment, see Bybee, Keith, All Judges Are Political Except When They Are Not, Stanford Law Books, 2010. For an account of the role of money in the context of Alaska’s Supreme Court retention elections during the 2019-2020 election cycle, see The Politics of Judicial Elections, 2019–20: Why Special Interests Are Spending More Than Ever on State High Court Races, Brennan Center for Justice, Jan. 25, 2022.
Claim #2) Ballot wording caused the public to be biased in favor of calling a constitutional convention:
Two Anchorage area precincts were selected as “weather vane” precincts because the percentage vote on the referendum there approximated the percentage vote in the state as a whole, and because the precincts had tended to reflect the outcome of the last several statewide elections. 15
One hundred and fifty voters who had participated in the last election were selected at random from each precinct and each voter was asked four questions. The questions asked were: (1) Should the people of Alaska vote on the question of land claims? (2) Should there be a reform of the Alaska Court System? (3) Should the people of Alaska vote on the question of reapportionment of the legislature? (4) Should there be a constitutional convention? In one precinct each question was prefaced by the phrase “as required by the Constitution of the State of Alaska”; in the other precincts they were not. As Dr. DeVries [**26] explained, the result was that an affirmative bias, ranging from eight percent to thirty-four percent, was found to have been introduced by the prefatory phrase “as required by the Constitution of the State of Alaska.” On the constitutional convention question, the affirmative bias was 14.7 percent. Dr. DeVries testified that in his opinion the prefatory language introduced a significant bias towards an affirmative vote and changed the result of the November referendum.
Concerns about the claim:
- Approximately 75 respondents per treatment group is not a statistically valid sample size.
- The precincts may have differed systematically by education and other characteristics so a better survey design would have randomly asked questions regardless of the precinct.
- The survey as reported in the case neither reported the number of non-respondents nor weighted respondents to compensate for non-reporting bias from non-respondents.
- There was no independent verification of the poll results from the expert hired by the plaintiffs seeking to overturn the election result. On concerns about replicability for even peer reviewed research, of which the cited court case was not, see: Baker, Monya, Over half of psychology studies fail reproducibility test, Nature, August 27, 2015; Ioannidis, John, Why Most Published Research Findings Are False, PLOS Medicine, Aug. 30, 2015; Piper, Kelsey, Science has been in a “replication crisis” for a decade. Have we learned anything?, Vox, Oct. 14, 2020; Yong, Ed, Psychology’s Replication Crisis Is Running Out of Excuses, The Atlantic, Nov. 19, 2018. .