Gary Stout

Gary Stout

For those who read the daily newspaper and go straight to the sports section, comics and obituaries, you may have paid little attention to the recurring full-page public notices detailing the proposed amendments to the Constitution of Pennsylvania. Who can blame you? The print is tiny, and the legalistic writing style invites only the most dedicated reader to struggle through the four joint resolutions. I will attempt to make some sense of the recommendations.

The good news is that voters need not immediately concern themselves with the proposed amendments before the November election. To amend the Pennsylvania Constitution, resolutions must pass both chambers of the Legislature by simple majority in two consecutive legislative sessions. They are then submitted to voters on a statewide ballot.

The present resolutions were passed in the July 2020 legislative session and must again pass in the 2020-21 session. If this takes place, the governor has no veto power, and the resolutions would appear on the November 2021 ballot.

The four proposed resolutions are the brainchild of the Republican-led Legislature and may be summarized as follows:

  • Limit a governor’s disaster declaration to 21 days. Currently, those declarations last 90 days. It would allow the General Assembly to extend a disaster declaration past the 21-day time frame upon its expiration, but a governor would not be permitted to declare a new state of emergency for the same reason without the General Assembly’s consent.
  • Clarify a constitutional provision to allow the legislative branch to terminate or extend a disaster declaration through a majority vote of both houses through a concurrent resolution that would not require the governor to sign off on the declaration.
  • Provide protection against racial or ethnic discrimination.
  • Move to regional (district) elections of Commonwealth Court, Superior Court judges and Supreme Court justices, who currently are elected on a statewide basis. Lawmakers would be in charge of drawing the judicial district regional boundaries. Judges would be required to be residents of their respective districts for at least a year of the district they represent.

The racial equality amendment was only passed by Republicans after it became part of a “two for one” resolution that also contained the disaster relief provisions. Voters would not be able to vote for one without the other.

The implications of the proposed constitutional amendments are profound. They seek to alter the balance of power between the executive, legislative and judicial branches of state government. The proposed “disaster declaration” amendment is a direct political attack by Republicans on the manner in which Democratic Gov. Tom Wolf handled the public health issues surrounding the pandemic. The amendment to alter how appellate judges are elected in Pennsylvania is a brazen Republican attempt to gain additional political power through the judiciary.

Republican lawmakers were frustrated with Wolf’s public health restrictions in refusing to open certain businesses in a manner consistent with some Republican governors. The frustration was enhanced when the state Supreme Court rejected the Republican lawsuit to end the disaster declaration.

Because Democrats now hold a majority on the Pennsylvania Supreme Court, Republicans cobbled together an unprecedented two-pronged attack on our Constitution. First, decrease executive powers long held by a governor. Second, make election of appellate judges regional so that Republican rural areas with fewer voters can elect their own jurists.

There is no doubt that the proposed Republican amendments are political and are not intended to improve state government or the health and welfare of Pennsylvania citizens. As the summer came to an end, Wolf was given high marks for using his executive powers in controlling the pandemic. His approach in finding a “middle ground” permitted the state to reopen businesses while controlling the spread. According to the John Hopkins University Coronavirus Research Center, Pennsylvania was to be commended for its steady decline in cases as more and more counties reopened.

Concerning the proposal on the manner in which appellate judges are elected, it is important to remember that in 1968 the judicial system was completely overhauled as part of major revisions to the Pennsylvania Constitution. Judicial gerrymandering to give more clout to rural counties in the election of statewide judicial positions was rejected. It was found to disenfranchise voters by limiting their vote to one member of each court. Of the jurisdictions where voters elect statewide judges, 18 out of 22 are elected in statewide contests.

There is some hope that when the proposed amendments come before the Legislature next year, the pandemic will be fading and there will be less of a reason to hamstring the governor in a public health emergency. After all, the next governor may be a Republican. In my view it is never a good idea to change Pennsylvania’s most fundamental document for short-term political advantage. That is what elections are intended to accomplish in a democratic political system.

Gary Stout is a Washington attorney.

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